X (South Yorkshire) (Claimant) Secretary of State for the Home Department (Defendant) Chief Constable of South Yorkshire (Interested Party)
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 24 October 2012 |
| Neutral Citation | [2012] EWHC 2954 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5556/2011 |
| Date | 24 October 2012 |
[2012] EWHC 2954 (Admin)
President of the Queen's Bench Division
and
Mr Justice Hickinbottom
Case No: CO/5556/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Leeds Combined Court Centre
LEEDS
Hugh Southey QC (instructed by Irwin Mitchell) for the Appellant
Jason Coppel (instructed by Treasury Solicitor) for the Respondent
The interested party did not appear
Hearing date: 26 July 2012
President of the Queen's Bench Division:
Introduction
This is the judgment of the court.
In 1990 the claimant pleaded guilty at Sheffield Crown Court to two offences of indecent assault on a child and was sentenced to 2 years imprisonment. In 1996 he pleaded guilty to four offences of indecent assault on a child and was sentenced to 4 years imprisonment. He was placed on the Register of Sex Offenders and will remain on it for life, subject to being able to make from 2013 an application for removal under the new legislative provisions which came into force on 1 August 2012.
At the end of March 2010, the defendant (the Home Secretary) promulgated a non-statutory scheme known as "The Child Sex Offender (CSO) Disclosure Scheme Guidance Document" (the CSOD Guidance). Following some pilots, the CSOD Guidance set out a Scheme (CSOD Scheme) which it was open to other Chief Constables to introduce nationwide from 1 August 2010. Under the CSOD Scheme members of the public can ask the police to provide details of a person who has some form of contact with children with a view to ascertaining whether that person had convictions for sexual offences against children or whether there is other relevant information about him. It will be necessary to describe the CSOD Guidance in more detail.
On 2 February 2011, the South Yorkshire Police who had decided to adopt the CSOD Scheme wrote to the claimant to tell him of that fact and that the CSOD Scheme might affect him. On 15 June 2011, the claimant began these proceedings against the Home Secretary and South Yorkshire Police to quash the CSOD Guidance. Prior to the hearing the claim was amended and relief was no longer sought against South Yorkshire Police, although the Chief Constable remained an interested party.
The two principal grounds on which the CSOD Guidance is challenged are:
i) The CSOD Guidance sets out inadequate procedural safeguards for an offender in respect of whom disclosure is to be made, as the offender is not given the opportunity to make representations.
ii) The CSOD Guidance misstates the test that the police must apply in deciding whether to make disclosure.
The various regimes for the disclosure of information about child sex offenders
Before turning to consider these grounds of challenge to the CSOD Guidance, it is essential to set the CSOD Scheme in the context of the other duties of the police and others in relation to disclosure of previous convictions of child sex offenders and other relevant information about them. There are now in essence four:
i) The duties at common law
ii) The general obligations under MAPPA (which are described at paragraphs 9 and following)
iii) The specific obligation introduced in July 2008 by s.327A of the Criminal Justice Act 2003 ( CJA 2003).
iv) The CSOD Scheme introduced at the end of March 2010.
(a) The applicable legal principles at common law
The right and duty of the police to provide information they have acquired about a person's previous convictions to other persons has been long recognised as requiring a balance to be struck between the public interest in disclosing what is necessary to protect the public and the protection of the individual. In R v Chief Constable of North Wales ex p Thorpe [1999] QB 396, a case which concerned the policy of the North Wales police in relation to the disclosure of information about paedophiles, Lord Bingham CJ in this Court formulated the general duty at page 409:
"When, in the course of performing its public duties, a public body (such as a police force) comes into possession of information relating to a member of the public, being information not generally available and potentially damaging to that member of the public if disclosed, the body ought not to disclose such information save for the purpose of and to the extent necessary for performance of its public duty or enabling some other public body to perform its public duty…. The principle, as I think, rests on a fundamental rule of good public administration, which the law must recognise and if necessary enforce.
It seems to me to follow that if the police, having obtained information about an individual which it would be damaging to that individual to disclose, and which should not be disclosed without some public justification, consider in the exercise of a careful and bona fide judgment that it is desirable or necessary in the public interest to make disclosure, whether for the purpose of preventing crime or alerting members of the public to an apprehended danger, it is proper for them to make such limited disclosure as is judged necessary to achieve that purpose.
While it is permissible for a public body to formulate rules governing its general approach to the exercise of a discretion, it is essential that such rules should be sufficiently flexible to take account of particular or unusual circumstances, and in a situation such as the present, where the potential damage to the individual and the potential harm to members of the community are so great and so obvious, it could never be acceptable if decisions were made without very close regard being paid to the particular facts of the case. The consultation of other agencies, assuming that time permits, is a valuable safeguard against partial or ill-considered conclusions."
Lord Woolf MR, in the Court of Appeal, emphasised the need to consider each case on its own facts. He said at page 428:
"However, in doing this, it must be remembered that the decision to which the police have to come as to whether or not to disclose the identity of paedophiles to members of the public, is a highly sensitive one. Disclosure should only be made when there is a pressing need for that disclosure. Before reaching their decision as to whether to disclose the police require as much information as can reasonably practicably be obtained in the circumstances. In the majority of the situations which can be anticipated, it will be obvious that the subject of the possible disclosure will often be in the best position to provide information which will be valuable when assessing the risk."
After referring to Article 8 of the Convention, Lord Woolf continued at page 429:
"The fact that the convictions of the applicants had been in the public domain did not mean that the police as a public authority were free to publish information about their previous offending absent any public interest in this being done. As Lord Bingham C.J. stated, before this happens it must at least be a situation where in all the circumstances it is desirable to make disclosure. Both under the Convention and as a matter of English administrative law, the police are entitled to use information when they reasonably conclude this is what is required (after taking into account the interests of the applicants), in order to protect the public and in particular children."
It was common ground in this application that these legal principles of the common law remain applicable to disclosure under the various schemes, save to the extent modified by Article 8.
(b) The establishment of MAPPA
Under s.67 the Criminal Justice and Court Services Act 2000, responsible authorities which came to be known as "Multi-Agency Public Protection Arrangements" (MAPPA) were established. The objective was to provide for cooperation in each of the 43 police areas between the police, probation and prison services in the assessment of the risks posed by those convicted of violent and sexual offences and in the management of those risks. A formal mechanism was set out to strengthen this co-operation through a body in each area. The body is referred to in the legislation as the "responsible authority" – police, prison and probation working together—though it is not a statutory body. It is convenient to refer to it as "the MAPPA authority". The provisions of the Criminal Justice and Court Services Act 2000 were re-enacted with amendments by s.325 of the CJA 2003. There have been still further amendments. Amongst the categories of persons covered by MAPPA are those, such as the claimant, who are Registered Sex Offenders.
Under s.325(8) of the CJA 2003, the Secretary of State for Justice can issue guidance as to how MAPPA authorities are to discharge their functions. By s.325(8A), the MAPPA authorities are to have regard to any guidance given by the Secretary of State when discharging their functions. Version 2 of the Guidance issued in 2007 set out advice on disclosure of previous offences; it is not necessary to refer to it. The current MAPPA Guidance, version 4, was issued in 2012. It is very long document, comprising some 147 pages, excluding the appendices and forms. It requires the systematic collection of information relevant to the risk posed by each offender to which the MAPPA regime is applicable, a regular review of the assessment of that risk on the basis of the available information, and a plan to manage that risk. One available intervention aimed at controlling...
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