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

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeThe Lord Chief Justice,Lord Justice Mummery,Lord Justice Laws
Judgment Date30 Jul 2004
Neutral Citation[2004] EWCA Civ 1068
Docket NumberCase No: C1/2004/0219

[2004] EWCA Civ 1068

[2004] EWHC 61 (Admin)

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ADMINISTRATIVE COURT

MR JUSTICE WALL

Strand, London, WC2A 2LL

Before:

The Lord Chief Justice of England and Wales

The Right Honourable Lord Justice Mummery and

The Right Honourable Lord Justice Laws

Case No: C1/2004/0219

Between:
The Queen on The Application of "x"
Appellant
and
Chief Constable of West Midlands Police & Anr
Respondent

MR DAN SQUIRES (instructed by Public Law Solicitors) for the Respondent

MISS FIONA BARTON (instructed by JH Kilby, Force Solicitor) for the Appellant

MR RABINDER SINGH QC and MR JAMES STRACHAN (instructed by the Treasury Solicitor) for the SECRETARY OF STATE FOR THE HOME DEPARTMENT (INTERESTED PARTY)

LCJ:

The Lord Chief Justice

The Lord Chief Justice

1

This is an appeal by the Chief Constable of West Midlands Police from a decision of Mr Justice Wall given on 23 January 2004. The appeal raises a point of some importance and difficulty in relation to the responsibility of Chief Police Officers under section 115 of the Police Act 1997 ("the 1997 Act") . The Secretary of State for the Home Department was originally a defendant to the proceedings, but when permission to proceed with the claim against the Chief Constable was granted on 3 July 2003, permission to proceed against the Secretary of State was refused. However, because of the importance of the issues raised on the appeal, Mr Rabinder Singh QC has been allowed to make submissions on behalf of the Secretary of State as to the legal issues involved, although he has not made submissions as to the merits of the decision of Wall J on the facts.

2

The appeal relates to the enhanced criminal record certificates (ECRC) which the Secretary of State can issue under section 115 of the 1997 Act. An ECRC contains information, in addition to that which is recorded in central records, about the person to whom the certificate relates, provided by the Chief Constable. The additional information may concern offences of which the person to whom the ECRC relates is suspected of committing even though his responsibility has not been and cannot be proved. The information must, however, be information of which the Chief Constable is of the opinion might be relevant to a position which involves regularly caring for, training, supervising or being in sole charge of persons under 18 or vulnerable persons aged 18 or over. The ECRC is, therefore, a form of protection for the young and/or vulnerable: the additional information contained therein is required so as to avoid unsuitable individuals being employed for looking after such persons. However, the information contained in the ECRC can be highly prejudicial and, as is suggested happened in the present case, can blight the individual's opportunity to obtain employment in his chosen field.

3

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.

4

Wall J made no adverse finding as to the third ground. It has not featured in the argument before us and I do not refer to it further. Wall J did however, find in favour of X, which is the name by which the claimant was known in the court below and in this court so as to protect his identity. The finding in X's favour was on the first and second grounds. The judge made an order that the decision of the Chief Constable to provide the information contained in the ECRC dated 3 March 2003 be quashed, that the Chief Constable should not in the future provide information relating to the indecent exposure allegations currently contained in that certificate to the Secretary of State pursuant to Sections 115 (7) and 119 (2) of the 1997 Act. Wall J refused leave to appeal and helpfully recorded his reasons for refusing permission to appeal in the following terms:

"I recognise that this case deals with an issue of public importance, and one which is, moreover, topical in the light of events at Soham and the forthcoming enquiry into them. That said:-

(1) My decision depends on the particular facts of the case;

(2) Much of the applicable law was not in dispute, notably: (a) that Article 8 of the European Convention on Human Rights was engaged and (b) that the approach to disclosure under the common law taken by Dyson J in Re LM [2000] 1 FLR 612, 622–23 was correct;

(3) I decided that the common law principle that there was a presumption against disclosure (as identified and applied in ex parte Thorpe [1996] QB 396 and followed in Re LM) was to be disapplied in the instant case (paragraph 91 of the judgment) .

(4) It was conceded by the Chief Constable that as a consequence of section 8.4 paragraph 14 (paragraph 135 of the judgment) of the ACPO Code, retention of the information which was the subject of the ECRC would have constituted a breach of the Code. I deliberately made no ruling on whether or not the information was "criminal intelligence" within paragraph 8.5 of the Code (judgment paras 147–149), and made it clear that nothing in the judgment was designed to inhibit the exchange of information between the police and other statutory authorities' action in the field of child protection (judgment para. 115);

(5) The claimant's case both on identification and on procedural fairness seemed to me particularly strong on the facts. For example, the argument advanced by the Chief Constable that the claimant's police interview represented his opportunity to make representations on the material to be disclosed was, I thought, manifestly unsustainable.

In these circumstances it is a matter for the Court of Appeal to decide if the case raises a point of law of sufficient public interest to warrant its consideration. On the merits, I have to say that I do think that the balancing exercise required in the case falls firmly in favour of the claimant on the facts, and that an appeal directed against the outcome of the case would not, therefore, have any real prospect of success." Notwithstanding these reasons, leave was granted by Lord Justice Kennedy on 24 March 2004.

The Legal Framework

5

Part V of the 1997 Act creates a statutory scheme for access by prospective employers to the criminal records and, in limited circumstances, information held by the police relating to potential employees. In addition to the ECRC, with which we are concerned on this appeal, there is a criminal conviction certificate which gives prescribed details of every unspent conviction recorded against an individual or states that there is no such conviction. This certificate is governed by section 112 of the 1997 Act.

6

There is also a criminal record certificate under section 113 of the 1997 Act. A criminal record certificate under section 113 of the 1997 Act includes cautions and spent convictions under the Rehabilitation of Offenders Act 1974. This is provided on the application of a 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:

i) … 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) .

7

Section 115 of the 1997 Act governs 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 Criminal Records Bureau ("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 –

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

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

8

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.

9

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)". The involvement of the Rehabilitation of Offenders Act 1974 is readily explained by the fact that it was necessary for the purposes of that Act to identify situations where the normal consequences of the passage of time in...

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