Secretary of State for Transport, Local Government and the Regions v Snowdon
| Jurisdiction | England & Wales |
| Judgment Date | 04 November 2002 |
| Neutral Citation | [2002] EWHC 2394 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2301/2002 |
| Date | 04 November 2002 |
[2002] EWHC 2394 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Nigel Pleming Q. C.
(Sitting as a Deputy High Court Judge)
Case No: CO/2301/2002
Shaheen Rahman (Instructed by the Treasury Solicitor) for the Appellant
The Defendant appeared in person
This is an appeal by way of Case Stated from the decision of the North Tyneside Magistrates Court dated 25 th February 2002.
Mr Snowdon is, by occupation, a bus driver. He is also, on his own plea of guilty, a convicted sex offender. The appeal raises questions relating to the licensing of bus drivers, and, in particular, the refusal to issue a licence where the applicant is considered not to be a fit and proper person. Mr Snowdon relies on his licence for his livelihood. It is also clearly the case that bus and coach passengers (particularly women and children) must be able to place their trust in the person charged with their safety and, to a limited extent, with their general welfare. The Magistrates’ decision under challenge, in summary, was to the effect that, notwithstanding his conviction, Mr Snowdon was a fit and proper person to hold a passenger-carrying vehicle drivers licence pursuant to the provisions of the Road Traffic Act 1988.
Before looking at that decision in detail, it is necessary to consider the statutory framework. First, the Sex Offenders legislation – what follows on this topic is largely taken from a very helpful additional written note provided to the Court on 17 th October 2002 by Shaheen Rahman, Counsel for the Appellant.
The Sex Offenders Act 1997 (Section 1) provides that certain persons are subject to a notification requirement. There are three classes of person subject to this requirement. The first class are those persons who have been convicted of an offence listed in Schedule 1 of the Act. The second class are persons who are have been acquitted of an offence listed in Schedule 1 to the Act by reason of insanity but who have been found to have committed the act which is the subject matter of the charge. The third class are those who have admitted committing an offence listed in Schedule 1 of the Act and who have been cautioned in respect of that offence. Mr. Snowdon falls within the first class.
Section 2(1) of the Act provides that fourteen days after the “relevant date”, (defined in section 1(8)), a person who is subject to a notification requirement must supply the police in his local police area with details of all the names he uses and his home address.
The duration of the notification requirement is set out in section 1(4) of the Act. Persons convicted of an offence listed in Schedule 1 to the Act who have received a non-custodial sentence, such as Mr Snowdon, are subject to the notification requirement for a period of five years.
The Sex Offenders Act 1997 does not contain any provision as to whether and in what circumstances a police force may disclose the fact that a person is subject to a notification requirement for the purposes of the Act. Disclosure of information obtained pursuant to the Act is the subject of a Home Office circular (HOC 39/1997).
This circular was addressed to amongst others the Lord Chief Justice, the Lords of Appeal in Ordinary, the Lords Justices of Appeal, the Judges of the Queen's Bench and Family Divisions and the Chief Officers of Police in England and Wales. Guidance as to when the information obtained pursuant to the Act may be disclosed is contained at Appendix A to the circular. The circular makes it clear that decisions as to when information obtained pursuant to the Act are to be disclosed to third parties by the police are matters for the discretion of the police.
The basic principle underlying the Guidance is to be found at paragraph 1:
“Ministers have made it very clear that the information must not merely be recorded or filed: it is essential that risk assessment should be undertaken by the police working with other child protection agencies, in order to protect children and vulnerable adults. Information should not be handed out gratuitously, however, and assessment of risk is at the heart of the process which should be adopted.”
The effect, therefore, of the Sex Offenders Act, and the subsequent guidance, is that certain bodies receive information on the register, and there is some (but controlled and limited) disclosure of the fact of registration by the police. Relevant to this appeal, there is no automatic disclosure to any employer of a passenger bus driver – such as Mr Snowdon.
Second, I turn to other relevant statutory provisions that deal with disclosure of criminal convictions (again, taken from Ms Rahman's note).
Part V of the Police Act 1997 creates a national regime for the disclosure of criminal convictions. The regime created by the Act operates by permitting the Secretary of State (in practice the Criminal Records Bureau, “CRB”) to issue certificates containing details of a person's criminal record. There are three categories of certificate each giving a slightly different amount of information. The procedure for applying for each of the three types of certificate also differs. The three classes of certificate are: —
(a) The Criminal Conviction Certificate
This certificate is addressed in section 112 of the Police Act 1997. However, the section has not been brought into force, and this certificate would not be available in Mr. Snowdon's or any other case. In any event, the certificate will be issued by the Criminal Records Bureau upon an application being made by the person who is the subject of the certificate. The certificate records details of all convictions recorded against that person's name, except for those that are spent. The certificate does not contain details of any cautions recorded against that person's name.
(b) The Criminal Record Certificate.
This certificate is covered by section 113 of the Police Act 1997. This certificate is issued by the CRB, again upon an application being made by the person who is the subject of the certificate. The certificate can not be issued unless the application for the certificate is accompanied by a statement provided by a registered person to the effect that the certificate is required for the purposes of an ‘exempted question’. The certificate will contain details of all convictions relating to the applicant, regardless of whether the conviction is spent or not, as well as details of any cautions relating to that individual. A copy of any certificate provided by the CRB to the applicant is sent to the registered person who countersigned the application. This level of disclosure is currently available from the CRB.
(c) The Enhanced Criminal Record Certificate.
This certificate is addressed in section 115 of the Police Act 1997. As above, this certificate is issued by the CRB upon an application being made by the person who is the subject of the certificate. As with the Criminal Record Certificate, it can not be issued unless the application for the certificate is accompanied by a statement provided by a registered person that states that the certificate is required for the purposes of an exempted question. Additionally, the application must be accompanied by a statement from the registered person that the certificate is required for the purposes of an exempted question asked in the course of considering the applicant's suitability for a job, licence or other such matter as listed in s115 of the Police Act 1997. The certificate would provide details of all matters listed in a Criminal Record Certificate and additionally any other information held in central records or held by a police force and provided to the CRB that might be relevant to determining the applicants suitability for the job, licence or other such matter as listed in s115 of the Police Act 1997. As above a copy of any certificate provided by the CRB to the applicant is sent to the registered person who countersigned the application.
Exempt questions are defined in the Rehabilitation of Offenders Act 1974 (Exemptions) Order 1975. The Order defines an exempt question as a question asked by a person in the course of their duties or employment in order to assess the suitability of an individual for: —
(a) admission to one of the professions listed in Part I of Schedule 1 to the Order,
(b) an office or employment listed in Part II of Schedule 1 to the Order,
(c) one of the occupations specified in Part II of Schedule 1 to the Order, or
(d) to hold one of the certificates, licences or permits of a kind listed in Schedule 2 to the Order.
The holding of a PCV driver's licence is not listed in Schedules 1 or 2 of the Order. Therefore, questions concerning the suitability of a person to hold a PCV driver's licence are not exempt questions as defined in the Rehabilitation of Offenders Act 1974 (Exemptions) Order 1975. The only level of disclosure available to those considering suitability to hold a PCV driver's licence is therefore that contained in a Criminal Conviction Certificate dealt with at (a) above—under provisions not yet in force.
Section 127 of the Police Act 1997 provides that nothing in Part V of the Police Act 1997 shall be taken to “prejudice any power which exists apart from this Act to disclose information or to make records available”.
The police have a power at common law to disclose information held by them concerning previous criminal convictions or cautions. This power is discussed in R v. Chief Constable of the North Wales Police and another Ex Parte AB and another [1998] 3...
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