The Queen (on the application of RD) v Secretary of State for Justice

JurisdictionEngland & Wales
Judgment Date2017
Neutral Citation[2017] EWHC 2586 (Admin)
Date2017
CourtQueen's Bench Division (Administrative Court)
Queen’s Bench Division *Regina (R) v National Police Chiefs’ Council and another [2017] EWHC 2586 (Admin) 2017 July 17; Oct 17 Fulford LJ, Green J

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 - Human Rights Act 1998 (c 42), Sch 1, Pt I, art 8 - Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023), art 3ZA (as inserted by Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 (SI 2013/1198), art 6))

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, 8794, 95).

R (T) v Chief Constable of Greater Manchester Police (Liberty intervening) [2015] AC 49, SC(E) and R (P) v Secretary of State for the Home Department [2017] 2 Cr App R 12, CA applied.

The following cases are referred to in the judgment of the court:

Christian Institute v Lord Advocate (Scotland) [2016] UKSC 51; 2016 SLT 805, SC(Sc)

Gallagher’s Application for Judicial Review, In re [2016] NICA 42, CANI

Hasan v Bulgaria CE:ECHR:2000:1026JUD003098596; 34 EHRR 55, GC

Liberty v United Kingdom CE:ECHR:2008:0701JUD005824300; 48 EHRR 1

MM v United Kingdom CE:ECHR:2012:1113JUD002402907; The Times, 16 January 2013

Malone v United Kingdom CE:ECHR:1984:0802JUD000869179; 7 EHRR 14, GC

R (Catt) v Association of Chief Police Officers of England, Wales and Northern Ireland (Equality and Human Rights Commission intervening) [2015] UKSC 9; [2015] AC 1065; [2015] 2 WLR 664; [2015] 2 All ER 727, SC(E)

R (L) v Comr of Police of the Metropolis (Secretary of State for the Home Department intervening) [2009] UKSC 3; [2010] 1 AC 410; [2009] 3 WLR 1056; [2010] PTSR 245; [2010] 1 All ER 113, SC(E)

R (P) v Secretary of State for the Home Department [2017] EWCA Civ 321; [2017] 2 Cr App R 12, CA

R (T) v Chief Constable of Greater Manchester Police (Liberty intervening) [2014] UKSC 35; [2015] AC 49; [2014] 3 WLR 96; [2014] 4 All ER 159; [2014] 2 Cr App R 24, SC(E)

R (Tigere) v Secretary of State for Business, Innovation and Skills (Just For Kids Law intervening) [2015] UKSC 57; [2015] 1 WLR 3820; [2016] 1 All ER 191, SC(E)

Rotaru v Romania CE:ECHR:2000:0504JUD002834195; 8 BHRC 449, GC

Sidabras v Lithuania CE:ECHR:2004:0727JUD005548000; 42 EHRR 6

Silver v United Kingdom CE:ECHR:1983:0325JUD000594772; 5 EHRR 347, GC

Sunday Times v United Kingdom CE:ECHR:1979:0426JUD000653874; 2 EHRR 245

The following additional cases were cited in argument or referred to in the skeleton arguments:

Al-Nashif v Bulgaria CE:ECHR:2002:0620JUD005096399; 36 EHRR 37

Amann v Switzerland E:ECHR:2000:0216JUD002779895; 30 EHRR 843, GC

Animal Defenders International v United Kingdom CE:ECHR:2013:0422JUD004887608; 57 EHRR 21, GC

Chief Constable of Humberside Police v Information Comr (Secretary of State for the Home Department intervening) [2009] EWCA Civ 1079; [2010] 1 WLR 1136; [2010] 3 All ER 611, CA

Durant v Financial Services Authority [2003] EWCA Civ 1746; [2004] FSR 28, CA

Gaughran v Chief Constable of the Police Service of Northern Ireland (Secretary of State for the Home Department intervening) [2015] UKSC 29; [2016] AC 345; [2015] 2 WLR 1303; [2015] 3 All ER 655, SC(NI)

Marckx v Belgium CE:ECHR:1979:0613JUD000683374; 2 EHRR 330

R v Chief Constable of the North Wales Police, Ex p AB [1999] QB 396; [1998] 3 WLR 57; [1998] 3 All ER 310, CA

R v Lang [2005] EWCA Crim 2864; [2006] 1 WLR 2509; [2006] 2 All ER 410; [2006] 2 Cr App R (S) 3, CA

R (Bibi) v Secretary of State for the Home Department (Liberty intervening) [2015] UKSC 68; [2015] 1 WLR 5055; [2016] 2 All ER 193, SC(E)

R (C) v Comr of Police of the Metropolis (Liberty intervening) [2012] EWHC 1681 (Admin); [2012] 1 WLR 3007; [2012] 4 All ER 510, DC

R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2010] UKSC 54; [2011] 2 AC 15; [2011] 2 WLR 1; [2011] PTSR 185; [2011] 1 All ER 729, SC(E)

R (F (A Child)) v Secretary of State for Justice [2010] UKSC 17; [2011] 1 AC 331; [2010] 2 WLR 992; [2010] 2 All ER 707, SC(E)

R (Gillan) v Comr of Police of the Metropolis [2006] UKHL 12; [2006] 2 AC 307; [2006] 2 WLR 537; [2006] 4 All ER 1041; [2006] 2 Cr App R 36, HL(E)

R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29; [2005] 1 WLR 1681; [2006] 1 All ER 487, HL(E)

R (MM (Lebanon)) v Secretary of State for the Home Department (Sheffield Asian Community Action Group intervening) [2014] EWCA Civ 985; [2015] 1 WLR 1073, CA

R (Smith) v Secretary of State for the Home Department [2005] UKHL 51; [2006] 1 AC 159; [2005] 3 WLR 410; [2006] 1 All ER 407, HL(E)

R (XX) v Secretary of State for the Home Department [2014] EWHC 4106 (Admin); [2015] ACD 72

S v United Kingdom CE:ECHR:2008:1204JUD003056204; 48 EHRR 50, GC

Wilson v First County Trust Ltd (No 2) [2003] UKHL 40; [2004] 1 AC 816; [2003] 3 WLR 568; [2003] 4 All ER 97, HL(E)

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  • (1) QSA v (1) Secretary of State for the Home Department
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 2 March 2018
    ...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 ......

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