Gallagher’s (Lorraine) Application
| Jurisdiction | Northern Ireland |
| Judge | Gillen LJ |
| Judgment Date | 2016 |
| Neutral Citation | [2016] NICA 42 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 12 October 2016 |
1
Neutral Citation: [2016] NICA 42 Ref:
GIL10065
Judgment: approved by the Court for handing down Delivered:
12/10/2016
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
__________
Gallagher’s (Lorraine) Application (Judicial Review) [2016] NICA 42
IN THE MATTER OF AN APPLICATION BY LORRAINE GALLAGHER
FOR JUDICIAL REVIEW
AND
IN THE MATTER OF THE DECISIONS OF THE DEPARTMENT OF JUSTICE
MADE IN APRIL 2014 AND 24 JULY 2014
________
Before: Gillen LJ, Weatherup LJ and Weir LJ
________
GILLEN LJ (giving the judgment of the court)
Introduction
[1] This is an appeal by the Department of Justice (“DoJ”) against the judgments
of Treacy J of 19 July 2015 and 11 May 2016. Treacy J determined that the statutory
arrangements providing for the disclosure in an Enhanced Disclosure Certificate
(“EDC”) of Conviction Information (and the parallel requirement for self-disclosure
to an employer) where there is more than one conviction, irrespective of their age or
subject matter, are unlawful as offending against Article 8 of the European
Convention on Human Rights and Fundamental Freedoms (“Article 8 of the
Convention”).
[2] Mr Coll QC appeared on behalf of the appellant with Mr Sands. Mr Wolfe
QC appeared on behalf of the respondent with Mr Coyle. We pay tribute to the care
and thoroughness with which the respective arguments, both written and oral, were
presented to this court.
2
Background
[3] The respondent in this case has a criminal record comprising of convictions
on six counts which arose from two incidents. In the first incident, in 1996, she was
stopped by police whilst driving without a seat belt with her three children in the
car. She was convicted on one count of driving without a seat belt and three counts
of carrying a child under 14 years of age in the back of a car without a seat belt and
fined a total of £85.
[4] In the second incident, in 1998, she was convicted on two further offences of
carrying children under 14 without a seat belt and was fined £80.
[5] In 2012 and 2013, the respondent was awarded an Access Diploma in
combined studies with commendation, a Level 3 QCF Certificate in Working in
Community Mental Health Care and Level 2 Diploma in Health and Social Care
(Adults) for Wales and Northern Ireland. She completed training courses in mental
health and was admitted to the Northern Ireland Social Care Council’s Register of
Social Care Workers. She worked as an agency worker at a number of Trust health
care facilities for adults with learning disabilities.
[6] On 11 February 2014 she applied to the Western Health and Social Care Trust
(“the Trust”) for a post at the Oak Tree Centre. On the application form she disclosed
she had been convicted of an offence of carrying a child without a seat belt on 4 May
1996 and was fined £25. The application form stated that all convictions must be
declared including motoring offences and that, within Health Social Services,
criminal convictions are never regarded as spent and, therefore, applicants have to
include all convictions even if they occurred sometime before.
[7] On 1 April 2008, a statutory scheme for disclosure of criminal record
information had entered into force in Northern Ireland. In April 2014, shortly after
the respondent applied to the Trust, this statutory scheme was amended in light of
changes to the same scheme in England and Wales. Under the scheme, Access NI, a
branch within the appellant Department, is responsible for carrying out checks on
criminal records and police information on individuals who wish to work in certain
types of jobs to enable employers to make safer recruitment decisions. The checks
are carried out under Part V of the Police Act 1997 and Access NI will then produce a
Disclosure Certificate. There are three levels of check: basic, standard and enhanced.
Enhanced checks, required for those working closely with unsupervised children
and vulnerable adults, make disclosure of the full criminal history including spent
and unspent convictions (subject to the “filtering scheme” created by the 2014
statutory reform).
[8] On 17 June 2014 the Trust offered the respondent the role of Temporary Part-
Time Care Assistant at a centre in Limavady providing for adults with learning
disabilities. The offer was subject to her completing and returning a personal
declaration form and an Access NI Disclosure Application Form to enable an Access
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In Gallagher and Others for Judicial Review
...[2019] UKSC 3 Before Lady Hale, President Lord Kerr Lord Sumption Lord Carnwath Lord Hughes Supreme Court Hilary Term On appeals from: [2016] NICA 42 and [2017] EWCA Civ 321 Appellant (Department of Justice for NI) Peter GJ Coll Aidan Sands (Instructed by Departmental Solicitors Office) App......
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P (ap) Against The Scottish Ministers
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The Queen (on the application of RD) v Secretary of State for Justice
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...later this year, together with an appeal from Northern Ireland raising similar issues: re Gallagher's Application for Judicial review [2016] NICA 42. The Court of Appeal in Northern Ireland in that case considered the provisions applicable in Northern Ireland of the Police Act 1997, and the......
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