R (X) v Chief Constable of the West Midlands Police

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Wall
Judgment Date23 January 2004
Neutral Citation[2004] EWHC 61 (Admin)
Docket NumberCase No: CO/2535/2003
Date23 January 2004

[2004] EWHC 61 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

The Honourable Mr Justice Wall

Case No: CO/2535/2003

Between:
X
Claimant
and
The Chief Constable Of West Midlands Police
Defendant

Mr. Dan Squires (instructed by Public Law Solicitors) for the Claimant

Miss Fiona Barton (instructed by John Kilbey, solicitor) for the Defendant

Mr Justice Wall

Introduction

1

In this case, the claimant, whom for reasons which will become immediately apparent I do not propose to name, seeks judicial review of a decision made by the Chief Constable of the West Midlands Police (the Chief Constable) to provide to a potential employer of the claimant, information contained in the "Other Relevant Information" section of an Enhanced Criminal Record Certificate (ECRC) relating to the claimant dated 3 March 2003, and issued pursuant to section 115 of the Police Act 1997 (the 1997 Act).

2

The decision was actually taken by the Deputy Chief Constable, and at one stage the claimant took the point that the Chief Constable did not have the power to delegate the making of decisions under section 115 of the 1997 Act to anybody else, including his Deputy. That point, however, is no longer pursued, and it is accepted by the claimant that the Deputy Chief Constable had the authority to make the decision. As the proceedings are brought against the Chief Constable, I propose to refer throughout to the Chief Constable as the decision maker, except where the context plainly requires a decision of the Deputy Chief Constable.

3

The claimant is a social worker with no criminal convictions. As set out in the ECRC, the "Other Relevant Information" against the disclosure of which objection is taken, is the following: -

It is alleged that on the 11 December 2001 (the claimant) indecently exposed himself to a female petrol station attendant. It is further alleged that this was repeated on the 7 May 2002. (The claimant) was arrested and interviewed whereby he stated that he did not think he had committed the offence but that he was suffering from stress and anxiety at the time. (The claimant), who was employed by a Child Care company at the time of the alleged offences, was charged with two counts of indecent exposure, however the alleged victim failed to identify the suspect during a covert identification parade, and the case was subsequently discontinued.

4

Relief was initially sought by the claimant against both the Chief Constable and the Secretary of State for the Home Department. However, on 3 July 2003, Owen J, whilst granting permission to apply for judicial review against the Chief Constable, refused it as against the Secretary of State on the ground that no decision of either the Criminal Records Bureau (CRB) or the Secretary of State had been challenged, and no relief was sought against either. The Secretary of State was, however, given permission to file evidence and to make representations at the hearing, an opportunity of which, in the event, he did not avail himself.

5

The challenge to the ECRC is on three grounds, namely that: -

(1) the substantive criteria which have to be satisfied for the disclosure by the Chief Constable to be lawful under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) and under the common law were not met;

(2) the decision to disclose the information by the Chief Constable was procedurally unfair under both the common law and Article 8 of the Convention and not "in accordance with the law" as required by the latter; and

(3) the Chief Constable had unlawfully departed from the Association of Chief Police Officers' (ACPO) Code of Practice for Data Protection in relation to information held concerning the claimant.

6

The relief sought by the claimant is in the following terms: -

1. A declaration that the information contained in the ECRC issued on 3 March 2003 in relation to the claimant was unlawfully provided by the Chief Constable;

2. An order that the Chief Constable do not, in the future, provide the information relating to the indecent exposure allegations currently contained in the ECRC to the CRB pursuant to sections 115(7) and 119(2) of the 1997 Act;

3. A declaration that the Certificate was unlawfully issued by the CRB;

4. An order that the CRB remove from the Certificate the details, currently contained in it, of the indecent exposure allegations made against the claimant;

5. Costs.

The concept of the Enhanced Criminal Record Certificate

7

ECRCs were created by Part V of the 1997 Act, which deals with criminal conviction certificates and criminal record certificates. Although the purpose for which ECRCs are to be provided is clear, the statutory language, which creates them, is not immediately transparent.

8

In broad terms, Part V of the Act of 1997 creates a statutory scheme for access by prospective employers to the criminal records of, and (in certain prescribed circumstances) other information held by the police relating to, potential employees. Under section 112(2) and (3), a criminal conviction certificate (which is issued to the prospective employee) is a certificate which gives prescribed details of every unspent conviction recorded against the individual, or states that there is no such conviction.

9

A criminal record certificate under section 113 of the Act of 1997 includes cautions and spent convictions under the Rehabilitation of Offenders Act 1974. This is provided on application by the prospective employee, although, under section 113(2) the application must be accompanied by a statement from the prospective employer that the certificate is required for the purposes of an "exempted question". By section 113(5) an "exempted question" is defined as:

�. A question in relation to which section 4(2)(a) or (b) and section 4(4) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) has been excluded by order of the Secretary of state under section 4(4)

10

Section 115 of the 1997 Act creates ECRCs. As with criminal record certificates, section 115(1) places a mandatory duty on the Secretary of State for the Home Department (a function delegated to the CRB) to issue an ECRC to any prospective employee who makes an application "in the prescribed form countersigned by a registered person" and pays the appropriate fee. Section 115(2) similarly requires the application to be accompanied by a statement from the prospective employer that the ECRC is required "for the purposes of an exempted question" asked �

(a) in the course of considering the applicant's suitability for a position (whether paid or unpaid) within subsection ( 3) or (4), or

(b) for a purpose relating to any of the matters listed in subsection (5).

11

A "position" is within section 115(3) of the 1997 Act "if it involves regularly caring for, training, supervising or being in sole charge of persons under 18", and within section 115(4) if it is of a kind specified in regulations made by the Secretary of State and involves regularly caring for, training, supervising or being in sole charge of persons aged 18 or over.

12

The term "exempted question" is defined by section 113(5) of the 1997 Act as "a question in relation to which section 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) has been excluded by an order of the Secretary of State under section 4(4)".

13

The matters listed in section 115(5) are not material for present purposes, but include certain activities under the Gaming Act, 1968, the Lotteries and Amusements Act 1976, the National Lottery Act 1993, and under the Children Act 1989, including child minding and day care and the placement of children with foster parents.

14

The ECRC itself is defined in section 115(6) of the 1997 Act as a certificate which: -

(a) gives �

(i) the prescribed details of every relevant matter relating to the applicant which is recorded in central records, and

(ii) any information provided in accordance with subsection (7), or

(b) states that there is no such matter or information.

15

Section 115(7) of the 1997 Act is at the heart of the present application. It provides that: -

(7) Before issuing an enhanced criminal record certificate the Secretary of State shall request the chief officer of every relevant police force to provide any information which, in the chief officer's opinion -

(a) might be relevant for the purpose described in the statement under subsection (2), and

(b) ought to be included in the certificate.

16

Section 115(8), which does not apply in the instant case, goes further than section 115(7). It provides that:

(8) The Secretary of State shall also request the chief officer of every relevant police force to provide any information which, in the chief officer's opinion -

(a) might be relevant for the purpose described in the statement under subsection (2), and

(b) ought not to be included in the certificate, in the interests of the prevention or detection of crime; and

(c) can, without harming those interests, be disclosed to the registered person.

17

In other words, where an ECRC is issued under section 115(7), the relevant information will be on the ECRC itself, and will be seen both by the prospective employee and the prospective employer. Under section 115(8) the information will be conveyed separately to the prospective employer, and will not be set out on the face of the ECRC itself. It will thus not be seen by the person who is the subject of the certificate.

18

Section 115(9) of the 1997 Act imposes a mandatory duty on the CRB to send to the registered person who countersigned...

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