HA v University of Wolverhampton
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 12 February 2018 |
| Neutral Citation | [2018] EWHC 144 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4171/2017 |
| Date | 12 February 2018 |
[2018] EWHC 144 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
Mr Justice Julian Knowles
Case No: CO/4171/2017
and
and
Ramby de Mello and Tony Muman (instructed by Bhatia Best) for the Claimant
Aileen McColgan (instructed by Weightmans LLP) for the Defendant
Nicola Greaney (instructed by Capsticks LLP) for the Intervenor
The Interested Party did not appear and was not represented
Hearing dates: 14 and 15 December 2017
Judgment Approved
Table of contents
| Introduction | 2 |
| The factual background | 3 |
| The issues | 7 |
| The statutory framework | 8 |
| Rehabilitation of offenders | 8 |
| Enhanced criminal record checks and DBS certificates | 13 |
| Statutory regulation of the pharmacy profession | 16 |
| The parties' submissions | 18 |
| Discussion | 20 |
| Was the University entitled to require HA to disclose his spent convictions and to require him to obtain an ECRC? | 20 |
| Was the question asked of HA on the application form invalid for failure to refer specifically to the Exceptions Order? | 29 |
| Did the requirement on HA to disclose his spent convictions and obtain an ECRC infringe his rights under Article 8 of the Convention? | 31 |
| Was the decision to exclude HA from the MPharm course in accordance with law and a disproportionate interference with his rights under Article 8(1), or otherwise unlawful? | 39 |
| Conclusion | 45 |
Introduction
At the heart of this application for judicial review is the question whether a university may lawfully ask an applicant for an accredited Master of Pharmacy degree course (‘MPharm’) whether he or she has spent and unfiltered convictions and whether the university can require him or her to undergo an enhanced criminal record check as part of the application process.
The Claimant, HA, was granted permission by His Honour Judge Purle QC (sitting as a Deputy High Court judge), to challenge the decision of the Defendant, the University of Wolverhampton (‘the University’), to exclude him from the MPharm course because of two criminal convictions he received aged 15 which he failed to declare when he applied for the course. The decision was taken by the University's Fitness to Practice Panel (FtPP) on 8 February 2017 and was upheld on appeal by the University's Academic Registrar. HA complained to the Office of the Independent Adjudicator (‘the OIA’), which rejected his complaint on 21 July 2017. This application for judicial review followed.
The OIA was served with these proceedings as an Interested Party, but has chosen not to take part. The General Pharmaceutical Council (‘the Council’), which is the statutory regulator for the pharmacy profession, was granted permission to intervene. The purpose of the Council's intervention was so it could assist the court in terms of its processes and the rationale behind it requiring universities to carry out character checks on prospective students for the MPharm course.
Because this case involves HA's juvenile criminal convictions, I made an order under CPR r 39.(4)(2) that his name not be published in connection with these proceedings. He will therefore be anonymised in this judgment as ‘HA’.
At the hearing before me HA was represented by Mr Ramby de Mello and Mr Tony Muman. The University was represented by Ms Aileen McColgan. The Council was represented by Ms Nicola Greaney.
The factual background
HA is now 21 years of age (date of birth 6 December 1996). He lives with his parents and siblings in Birmingham.
In 2012, when he was 15, HA was convicted of robbery (contrary to s 8 of the Theft Act 1968) and assault occasioning actual bodily harm (contrary to s 47 of the Offences Against the Person Act 1861). Both offences were committed when he was 14. The assault was committed on 21 July 2011 and he was convicted at Birmingham Youth Court on 1 February 2012. He was given a youth rehabilitation order, and was ordered to pay compensation of £400 and was made subject to a curfew. He told the FtPP that the assault was a fight at school in which he knocked another student's tooth out. The robbery was committed on 31 May 2011. He told the FtPP that he was part of group which had robbed two youths of a credit card and phone in a park. He was convicted of robbery at the same court on 29 February 2012. Again, he was given a youth rehabilitation order, was ordered to pay compensation of £200 and was made subject to a curfew. A letter from his supervising probation officer indicates that he made excellent progress in relation to the youth rehabilitation orders, and they were revoked early.
After these events, HA completed his GCSEs and A-Levels and in due course applied to study, and was admitted on, the MPharm course at the University of Wolverhampton commencing in autumn 2016.
As part of the application process for the MPharm course, HA had to complete various online forms. One of these was a form which required disclosure of criminal convictions, and other matters, such as any health conditions which might impair his fitness to practice. Under the heading ‘Criminal records’, the form stated:
“This course, like the profession of pharmacy, is exempt from the Rehabilitation of Offenders Act because it might involve close working with children or vulnerable adults. You are therefore required to declare any convictions, cautions or binding overs even if they would otherwise be regarded as ‘spent’.
Please note that a positive declaration will not necessarily exclude you from the course. However, a false declaration may result in your removal from the course.”
The question was then asked, with boxes marked ‘Yes’ and ‘No’ immediately following:
“Have you ever been convicted, or received a caution, warning or final reprimand, for an offence that will be not be filtered from the Police National Computer when it is processed by the DBS?”
HA completed the form and answered this question ‘No’.
The form continued:
“If you are unsure what filtering is, or which offences qualify for filtering, you may wish to talk to us about this or seek further guidance at http://hub.unlock.org.uk/knowledgebase/filtering-cautions-convictions”
The web address linked through to the website of an organisation called ‘Unlock’ and provided further information about what does and does not have to be disclosed when spent convictions are required to be disclosed. In summary, filtering refers to the changes to the disclosure regime which were considered by the Court of Appeal in R (P) v Secretary of State for the Home Department [2017] 2 Cr App R 12. As I explain further below, the disclosure scheme, as originally implemented by the Police Act 1997, required the DBS to issue a criminal record certificate, upon request, disclosing all of a person's convictions and cautions, whether current or spent. In R(T) v Chief Constable of Greater Manchester [2015] AC 49, the scheme was found to be capable of violating Article 8 of the European Convention on Human Rights (‘the ECHR’) on the grounds that, not being based on any rational assessment of risk, it went further than was necessary to accomplish the statutory objective, was disproportionate, and was not necessary in a democratic society. The scheme was then revised pursuant to the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 (SI 2013/1200), so that, subject to a significant number of exceptions, spent convictions and cautions did not have to be disclosed.
It was common ground before me that HA's convictions, although they were spent (by virtue of s 5(4)(da) of the Rehabilitation of Offenders Act 1974) (‘the 1974 Act’), would not have been filtered. As I will develop later in this judgment by reference to the statutory provisions, that was because of their proximity in time to HA's date of application to the University; because of their nature; and because there was more than one of them.
HA's explanation for not disclosing his convictions was as follows. First, he told the FtPP that when he went to college aged 16 to study for his A-Levels he had sought advice from his probation officer about whether he would be required to disclose his convictions when he applied to go to university. He said that he was told that he would not have to. His explanation to the panel was as follows ( sic):
“Firstly, I must start by, you know, declaring my previous record. This is because you know before I started college. I wanted to become, I wanted like a pharmacy or dentist, before I wanted to do. I asked my probation officer if I'm allowed to go to Uni cause my dad told me that it will affect my chances to go to Uni so before college I went to my probation officer and I asked him how long would it stay on my record. He said it's come off as in he won't show in University because it's a minimum of five years or something and it comes off. So in my mind I was thinking I had nothing on my record and so when I applied for the University, I applied through Clearing so yes they've come a bit late and I was in a rush, cause it was the only Uni that gave me an offer and I was, I obviously rushed it to be honest, I didn't really read it properly as in I thought in my mind that it's not going to come up so I just clicked no and moved on. So yes that's about it to be honest and that's concerning that part.”
Later, in response to questions, HA said that he did not tell the probation officer that he was considering a pharmacy course.
HA's convictions came to light following an induction lecture at the start of the semester in...
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