The Queen (on the application of RD) v Secretary of State for Justice
Jurisdiction | England & Wales |
Judgment Date | 2017 |
Neutral Citation | [2017] EWHC 2586 (Admin) |
Date | 2017 |
Court | Queen's Bench Division (Administrative Court) |
Confidential information - Disclosure - Police - Claimant required to disclose any prior misconduct as part of application process for job as police service support officer - Application rejected solely on ground of claimant’s reprimand for low level theft received aged 13 - Whether rejection and police policy on disclosure and use of information unlawful - Whether policy and statutory rules on disclosure incompatible with claimant’s Convention rights -
The claimant applied to the police for a job as a service support officer, with a view to applying to become a police constable in due course. As part of the application process the claimant disclosed a police reprimand which she had received at the age of 13 for assisting some other girls to steal an item of clothing from a shop. The claimant’s application was rejected at an early stage of the process purely on the basis of the reprimand, in accordance with a policy under which applications for a service support officer role, or a cadet or constable, would be rejected if the applicant had any conviction or caution for theft unless “exceptionally compelling circumstances” existed. The decision letter informing the claimant of her failed application advised her that any future application for a role as a constable was also likely to fail for the same reason. The claimant sought judicial review of the lawfulness of the decision letter, the policy, and the disclosure rules in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, as amended in 2013F1, in so far as they exempted her from the benefit of the Rehabilitation of Offenders Act 1974 when she applied for employment with the police. She contended, inter alia, that the disclosure and use of the reprimand was an unjustified intrusion into her private life in breach of article 8 of the Convention for the Protection of Human Rights and Fundamental FreedomsF2. Under the 1975 Order as amended in 2013 the claimant was not obliged to disclose her reprimand if she applied for a service support officer role and the defendants accepted that the policy which had been applied to her job application was unlawful in that respect. However, the requirement to disclose under article 3ZA of the amended 1975 Order still applied to employment as a cadet or constable.
On the claim—
Held, allowing the claim, (1) that the use of the disclosed information, as reflected in the decision letter refusing the claimant employment, was unlawful because it was inconsistent with the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, as amended, in so far as it applied to support roles within the police; that the decision letter was also unlawful as an unjustified interference with the claimant’s rights under article 8 of the Convention, being neither in accordance with the law nor necessary in a democratic society, in so far as it reflected a policy under which historical low level reprimands precluded employment in a supporting role within the police and which also, in substance, sought to preclude the claimant from seeking employment as an officer or a cadet within the police; that the policy contained no safeguards to protect the claimant’s private law rights in relation to any application she might make to become a constable or a cadet and the mere existence of a right to seek judicial review was not a sufficient safeguard; that there was no rational connection between the interference with the claimant’s article 8 rights and the public interest objectives which underlay that interference and no fair balance had been struck; and that the policy was unlawful under article 8 in so far as it precluded employment for a person in the claimant’s position in either a supporting role or as an officer or a cadet (post, paras 18, 76, 77, 79, 80, 81, 94).
(2) That the 1975 Order, in removing the protection from self-disclosure by the claimant in response to a request posed in any application to become a constable or a cadet, was likewise contrary to article 8 of the Convention in so far as it applied to low level, historical cautions; that, while “bright line” rules of the kind imposed by the 1975 Order could exist, the line had to be properly calibrated; that the particular strict “bright line” which the 1975 Order drew was not justified in so far as the “calibration” reflected in the 2013 amendments failed to recognise the wide range of very different situations covered by the disclosure rule, treated divergent and non-comparable situations in an identical and undifferentiated manner and paid no account to the policy considerations which were relied on to justify the rule; that the mere fact that there was or might be a discretion governing use of the disclosed information could not render lawful an overly broad disclosure rule, since leaving the control mechanism to the stage of use of the information left open the potential for its misuse; and that, accordingly, there would be a declaration that the 1975 Order, as amended, could not be read or given effect in a way which was compatible with the claimant’s rights under article 8 of the Convention to the extent that it excluded the application of section 4(2)(3)(b) of, and paragraph 3(3)(5) of Schedule 2 to, the Rehabilitation of Offenders Act 1974 to constables or cadets, in respect of low level, historical cautions (post, paras 18, 82, 84, 85, 87–94, 95).
The following cases are referred to in the judgment of the court:
Christian Institute v Lord Advocate (Scotland)
Gallagher’s Application for Judicial Review, In re
Hasan v Bulgaria
Liberty v United Kingdom
MM v United Kingdom
Malone v United Kingdom
R (Catt) v Association of Chief Police Officers of England, Wales and Northern Ireland (Equality and Human Rights Commission intervening)
R (L) v Comr of Police of the Metropolis (Secretary of State for the Home Department intervening)
R (P) v Secretary of State for the Home Department
R (T) v Chief Constable of Greater Manchester Police (Liberty intervening)
R (Tigere) v Secretary of State for Business, Innovation and Skills (Just For Kids Law intervening)
Rotaru v Romania
Sidabras v Lithuania
Silver v United Kingdom
Sunday Times v United Kingdom
The following additional cases were cited in argument or referred to in the skeleton arguments:
Al-Nashif v Bulgaria
Amann v Switzerland
Animal Defenders International v United Kingdom
Chief Constable of Humberside Police v Information Comr (Secretary of State for the Home Department intervening)
Durant v Financial Services Authority
Gaughran v Chief Constable of the Police Service of Northern Ireland (Secretary of State for the Home Department intervening)
Marckx v Belgium
R v Chief Constable of the North Wales Police, Ex p AB [
R v Lang
R (Bibi) v Secretary of State for the Home Department (Liberty intervening)
R (C) v Comr of Police of the Metropolis (Liberty intervening)
R (Child Poverty Action Group) v Secretary of State for Work and Pensions
R (F (A Child)) v Secretary of State for Justice
R (Gillan) v Comr of Police of the Metropolis
R (Hooper) v Secretary of State for Work and Pensions
R (MM (Lebanon)) v Secretary of State for the Home Department (Sheffield Asian Community Action Group intervening)
R (Smith) v Secretary of State for the Home Department
R (XX) v Secretary of State for the Home Department
S v United Kingdom
Wilson v First County Trust Ltd (No 2)
C...
To continue reading
Request your trial-
(1) QSA v (1) Secretary of State for the Home Department
...a similar argument was rejected by a Divisional Court in R (R) v National Police Chiefs' Council and Secretary of State for Justice [2017] EWHC 2586 (Admin), but notes that the decision in that case is presently under appeal (though the appeal may be stayed pending the determination of the ......