QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
|- and -
|THE CHIEF CONSTABLE OF WEST MIDLANDS POLICE
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss Fiona Barton (instructed by John Kilbey, solicitor) for the Defendant
Crown Copyright ©
Mr Justice Wall:
It is alleged that on the 11 December 2001 (the claimant) indecently exposed himself to a female petrol station attendant. It is further alleged that this was repeated on the 7 May 2002. (The claimant) was arrested and interviewed whereby he stated that he did not think he had committed the offence but that he was suffering from stress and anxiety at the time. (The claimant), who was employed by a Child Care company at the time of the alleged offences, was charged with two counts of indecent exposure, however the alleged victim failed to identify the suspect during a covert identification parade, and the case was subsequently discontinued.
(1) the substantive criteria which have to be satisfied for the disclosure by the Chief Constable to be lawful under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) and under the common law were not met;
(2) the decision to disclose the information by the Chief Constable was procedurally unfair under both the common law and Article 8 of the Convention and not "in accordance with the law" as required by the latter; and
(3) the Chief Constable had unlawfully departed from the Association of Chief Police Officers' (ACPO) Code of Practice for Data Protection in relation to information held concerning the claimant.
1. A declaration that the information contained in the ECRC issued on 3 March 2003 in relation to the claimant was unlawfully provided by the Chief Constable;
2. An order that the Chief Constable do not, in the future, provide the information relating to the indecent exposure allegations currently contained in the ECRC to the CRB pursuant to sections 115(7) and 119(2) of the 1997 Act;
3. A declaration that the Certificate was unlawfully issued by the CRB;
4. An order that the CRB remove from the Certificate the details, currently contained in it, of the indecent exposure allegations made against the claimant;
The concept of the Enhanced Criminal Record Certificate
…. A question in relation to which section 4(2)(a) or (b) and section 4(4) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) has been excluded by order of the Secretary of state under section 4(4)
(a) in the course of considering the applicant's suitability for a position (whether paid or unpaid) within subsection (3) or (4), or
(b) for a purpose relating to any of the matters listed in subsection (5).
(a) gives –
(i) the prescribed details of every relevant matter relating to the applicant which is recorded in central records, and(ii) any information provided in accordance with subsection (7), or
(b) states that there is no such matter or information.
(7) Before issuing an enhanced criminal record certificate the Secretary of State shall request the chief officer of every relevant police force to provide any information which, in the chief officer's opinion -
(a) might be relevant for the purpose described in the statement under subsection (2), and
(b) ought to be included in the certificate.
(8) The Secretary of State shall also request the chief officer of every relevant police force to provide any information which, in the chief officer's opinion -
(a) might be relevant for the purpose described in the statement under subsection (2), and(b) ought not to be included in the certificate, in the interests of the prevention or detection of crime; and(c) can, without harming those interests, be disclosed to the registered person.
The Guidance Notes for Forces issued by the CRB
1.4 The (ECRC) will include details of all convictions and cautions, held at National level including convictions "spent" under the Rehabilitation of Offenders Act 1974 and including relevant non-conviction information from local police records. For those working with children or vulnerable adults, the Enhanced Disclosure will also include information sourced from the Department of Health and the Department for Education and Skills…
2.1 Subject to authentication of an applicant's identity and current address, the CRB will issue an (ECRC) in response to any properly submitted application. An ECRC will contain conviction data where applicable and may also contain any non-conviction information from local police records, which might be relevant. The tests of the relevance of information remains the judgment of individual chief officers. The police may opt to disclose relevant non-conviction information to the Registered Body only, in the interests of the prevention or detection of crime. This will be done by means of a separate letter to the CRB. The accuracy and relevance of the data released though, rests solely with the Police Service and the CRB will not undertake any editing function.
Forces are merely supplying information via the CRB to prospective employers – it is the employers' responsibility to decide the application's suitability for a specific role.
…. if the intelligence held does not add anything further, then the disclosure of non-conviction data could be deemed unnecessary.
The dilemma of whether or not to release information illustrates that disclosure is an area of fine judgments. In many areas of this guidance it is not possible to be as prescriptive and exact as the Service would want. It is crucial for the effective operation of the disclosure process that the individual and often unique ingredients of each case are taken into consideration. Hard and fast rules in certain areas of the disclosure process could be both restrictive and counterproductive in frustrating the perpetrators of offences against the vulnerable. It is essential that Forces retain the flexibility to articulate a response, which takes account of the unique characteristics of each case. Further, Forces should have a clear and transparent decision making process – capable of withstanding scrutiny.
I can say 100% that it is the same man that drove (the car). I would recognise him anywhere and this was confirmed during the second incident. There is no doubt in my mind that it is him.
In the light of subsequent events, these three sentences are, in my judgment, significant.
The claimant's police interview on 16 May 2002
Q …. I think I would remember if I went into a petrol station and I had nothing else underneath, I think I would remember that, it would stick out in my mind.
A Well, I cannot remember that.
Q Is it possible that you've done it?
A I don't think so.
Q Right, you see it does not make sense to me because I'd know for a fact it I had done something like that
Events after the police interview
The making of the ECRC
He states that he cannot recall doing what has been alleged. He is asked if it is possible that he had done it and he states that he does not think so. (The claimant) is asked if there is any reason why he would not remember doing it and (the claimant) states that he cannot remember doing it and (he) would not remember doing it because he was suffering from stress and anxiety at this time and he went to see his doctor.
I cannot remember doing that, I mean I was under a bit of stress at that time, I had been to my doctor around that time you know
(a) the timeliness of any previous event to this disclosure
(b) the seriousness of the event;
(c) the source and reliability of the non-conviction information held on the local system;
(d) the age and details known about any victims;
(e) if proceedings were instigated, why they were not continued;
(f) does the information add anything to the PNC information already provided?
(g) the actions of the applicant since the event;
(h) the retention of Part V material on local systems and weeding procedures;
(i) the likely impact on the applicant if this information was disclosed;
(j) the potential impact on any vulnerable group if this information was not disclosed.
This decision was based on the fact that the information was relatively recent, it involved an allegation of threats to rape, there had been sufficient evidence to charge and the complainant was believed to be reliable and credible. I noted the duration of time that had elapsed between the last sighting of this suspect by the complainant and the unsuccessful covert identification procedure that led to the discontinuance of the case by the CPS. Before arriving at my final decision I weighed the likely impact on the claimant if this information was disclosed, against the potential impact on any vulnerable group if this information was not disclosed.
The claimant's first ground: namely that the substantive criteria which have to be satisfied for the disclosure by the Chief Constable to be lawful under Article 8 of the Convention and under the common law are not met.
(a) the existence of the duty to provide information for ECRCs displaced the general presumption at common law that information should not be disclosed;
(b) Part V of the Police Act 1997 provides specific public justification for disclosure;
(c) there was no requirement for consultation with other relevant agencies; and
(d) there was no requirement for the subject of the disclosure to be permitted to make representations.
(a) The level of certainty on the part of the public authority that the allegations it is disclosing are true. The greater the conviction that the allegation is true the more pressing the need for disclosure;
(b) The interest of the third party in receiving the information. The more intense the legitimacy of the interest in the third party having the information the more pressing the need to disclose is likely to be; and
(c) The degree of risk posed by the person if disclosure is not made
Do the terms of section 115 exclude the operation of the common law?
I consider first whether there is any principle of construction, which requires the court, in certain cases, to construe general words contained in the statute as being impliedly limited. In my judgment there is such a principle. It is well established that Parliament does not legislate in a vacuum: statutes are drafted on the basis that the ordinary rules and principles of the common law will apply to the express statutory provisions: see Cross on Statutory Interpretation, 3rd ed. (1995), pp. 165-166; Bennion, Statutory Interpretation, 2nd ed. (1992), p. 727 and Maxwell on Interpretation of Statutes, 12th ed. (1969), p. 116. As a result, Parliament is presumed not to have intended to change the common law unless it has clearly indicated such intention either expressly or by necessary implication: Cross on Statutory Interpretation, p. 166; Bennion, Statutory Interpretation, p. 718 and Maxwell on Interpretation of Statutes, p. 116. This presumption has been applied in many different fields including the construction of statutory provisions conferring wide powers on the executive. Where wide powers of decision-making are conferred by statute, it is presumed that Parliament implicitly requires the decision to be made in accordance with the rules of natural justice: Bennion on Statutory Interpretation, p. 737. However widely the power is expressed in the statute, it does not authorise that power to be exercised otherwise than in accordance with fair procedures.
The decided cases on disclosure
(1) There is a general presumption that information should not be disclosed, such a presumption being based on a recognition of (a) the potentially serious effect on the ability of the convicted people to live a normal life; (b) the risk of violence to such people; and (c) the risk that disclosure might drive them underground. (2) There is a strong public interest in ensuring that police are able to disclose information about offenders where that is necessary for the prevention or detection of crime, or for the protection of young or other vulnerable people. (3) Each case should be considered carefully on its particular facts, assessing the risk posed by the individual offender; the vulnerability of those who may be at risk; and the impact of disclosure on the offender. In making such assessment, the police should normally consult other relevant agencies (such as social services and the probation service).
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.
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.
I regard the third principle set out above also as being necessary and important. It would plainly be objectionable if a police force were to adopt a blanket policy of disseminating information about previous offenders regardless of the facts of the individual case or the nature of the previous offending or the risk of further offending. While it is permissible for a public body to formulate rules governing its general approach to the exercise of a discretion (see British Oxygen Company Ltd. v. Board of Trade  AC 610), it is essential that such rules should be sufficiently flexible
On behalf of the Home Secretary, Mr. Eadie advanced careful and well-balanced submissions as to how the duty (which he accepted existed) to act fairly should be exercised. He agreed that there are cases where it would be desirable, so as to ensure as far as possible that the police are acting on accurate information and so as to ensure the necessary degree of fairness, to afford individuals in the position of the applicants some opportunity to comment. However whether such an opportunity should be afforded and the form that it should take depends on the particular circumstances of a particular former offender. In determining what should be done the overriding priority must remain to protect the public, particularly children and other vulnerable people. The time scale involved may make it not possible to afford an opportunity to comment. The information in the police's hands may be of a category, which means that it is unlikely that the subject could be expected to add anything of value. The information available to the police may be information upon which the subject has already had an opportunity to comment. The information may be of a nature, which means it would be undesirable for it to be disclosed because of its confidentiality or sensitivity or on the grounds of public interest immunity. There is no formal procedure with which the police should be required to comply. The police should be allowed to act in a sensible pragmatic way. It should be remembered that they have to rely upon the advice of experts and they should not be required to test opinions, which they have received from experts.
We had no difficulty in endorsing Mr. Eadie's general approach. Each case must be judged on its own facts. 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.
In my view, the guiding principles for the exercise of the power to disclose in the present case are those enunciated in R v Chief Constable of North Wales Police ex parte Thorpe. Each of the Respondent authorities had to consider the case on its own facts. A blanket approach was impermissible. Having regard to the sensitivity of the issues raised by the allegations of sexual impropriety made against LM, disclosure should only be made if there is a "pressing need". Disclosure should be the exception, and not the rule. That is because the consequences of disclosure of such information for the subject of the allegations can be very damaging indeed. The facts of this case show how disclosure can lead to loss of employment and social ostracism, if not worse. Disclosure should, therefore, only be made if there is a pressing need for it…
What was required of the police and the social services department in this case was that they examine the facts, and carry out the exercise of balancing the public interest in the need to protect children against the need to safeguard the right of an individual to a private life. How should the balancing exercise be carried out? All relevant factors must be considered. It is not possible or desirable to attempt to provide an exhaustive list. It seems to me, however, that the following factors will usually have to be considered by the police and the local authority that is contemplating disclosure of allegations of child sexual abuse to a third party.
Should the information in the instant case have been disclosed?
Due to aborted identification parades, following objections from the claimant through his legal representative, a group identification procedure did not occur until 25 September 2002 (nearly four months after the complainant last saw the suspect) The complainant failed to identify the claimant and the CPS decided to discontinue proceedings relating to both offences on 25 September 2002. (My emphases)
the consequences of registration for M were in my judgment sufficiently serious … to impose on the council a legal duty to act fairly towards him. The council's case conference [which had decided to place M's name on the register and disclose the allegations to his employer] … acted unfairly and in manifest breach of that duty when it operated a procedure which denied him all opportunity of advance warning of their intentions or of prior consultation, or of being heard to object or of knowing the full circumstances surrounding the decision.
fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before a decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification.
The claimant's third argument: the Chief Constable had unlawfully departed from the Association of Chief Police Officers' (ACPO) Code of Practice for Data Protection in relation to information held concerning the Claimant.
14.1 Details may be retained for a period of five years in cases where a sexual offence is alleged, but the subject is acquitted, or the case is discontinued because of lack of corroboration or allegation of consent by the victim, providing identity is not an issue. An officer not below the rank of Superintendent must give authorisation and be reviewed again at the end of the retention period. Cautions for sexual offences, ordinarily weeded after five years, may also be reviewed and extended where appropriate.
14.1 When considering retention for cases above, the authorising officer must personally consider the full circumstances and only if all of the following criteria have been satisfied will authorisation for retention of the details be given;
(i) The circumstances of the case would give cause for concern if the subject were to apply for employment for a post involving substantial access to vulnerable persons and;
(ii) The decision to retain the information can be defended on the grounds of the prevention and detection of crime.
It is not possible to lay down strict criteria for the removal of date from criminal intelligence records. The need to retain or remove such information can only be judged from the nature of the information, and whether it is necessary, lawful, proportional and relevant to its purpose.
The decision to retain or remove personal information will be assisted by knowledge of the reliability of the source.
All intelligence reports will be reviewed on a regular basis and considered for deletion subject to a maximum period of 12 months.
For intelligence to be retained it must be relevant, but in some cases information will have to be retained for long periods if the police are to effectively discharge their duties.
LORD JUSTICE WALL: For the reasons contained in the judgment I am now handing down I will make a declaration that the information contained in the Enhanced Criminal Record Certificate dated 3 March 2003 was unlawfully provided by the defendant to the Secretary of State. I will also make the consequential orders identified in paragraph 2 of the draft order which I understand has been agreed between counsel and I will hear argument on sub-paragraph 5.
MISS STUDD: I have four points to make, all of them short. Since you heard this case requests for enhanced certificates has reached the public and will be considered by the Bichard Inquiry next month. This is the first case to be decided under the 1997 statutory provisions. There is a public interest, in my submission, in the Court of Appeal considering what matters the Chief Constable should take into account when considering whether or not to disclose information such as this.
The second point arises directly from your judgment and concerns the issue of whether or not the common law principles apply equally where Parliament has imposed a statutory duty on police officers, that is, notwithstanding the modified criteria in Thorpe and LM that you applied in your judgment.
The third point is the difficulty arising for the police as a result of the finding that where identification is in issue the presumption should be that disclosure should not be made.
LORD JUSTICE WALL: I do not think I said that, did I?
MISS STUDD: You have not said that in terms, no. But the implication must be that where identification is in issue, which it often is in incidents such as the one with which you were dealing, then unless there is good additional evidence the decision should be against disclosure on an objective basis. As Miss Barton argued before you, that makes it difficult for police in circumstances where there are for example two or three such allegations, each of which are discontinued or not proceeded with because of identity being in issue. It may prevent the police from being able to identify potential serial offenders.
LORD JUSTICE WALL: I do not want to take time over this argument. I fully understand why you are advancing it. One of the reasons I deliberately did not decide whether or not this was criminal information was precisely to meet that difficulty. I quite understand that there will be circumstances in which the police will wish to retain information for the purpose of further inquiries if they are investigating either one or a series of alleged sexual offences. That seems to me a quite different question as to whether or not that information should be contained on an ERRC.
MISS STUDD: The difficulty is that if you have somebody who has been arrested in respect of sexual matters - I use that in the broadest terms - but identification has been in issue on more than one occasion, and that person applies for employment which comes within the criteria in the 1997 Act, there is, as a result of this judgment, a presumption against disclosing that information to the employer. The danger there is it may be that the employer employs somebody who is inherently unsuitable and the matter only comes to light when something more serious occurs. In my submission the 1997 Act tends to want to prevent that from happening rather than letting it happen and then .....
LORD JUSTICE WALL: I understand the point you are making.
MISS STUDD: ..... difficulties .....
LORD JUSTICE WALL: I will not interrupt any more.
MISS STUDD: My last point relates to the second matter you decided which is the question of permitting a subject of disclosure to make representations prior to the disclosure being made. I take that very shortly because your Lordship summarised Miss Barton's arguments at paragraph 127. I do not intend to repeat them; they are the arguments that she would no doubt advance before the Court of Appeal and they are matters that the Court of Appeal should consider.
LORD JUSTICE WALL: Mr Purchas, do you want to say anything?
MR PURCHAS: Yes. In relation to the third point, as you have identified, your judgment does not make any general presumption.
LORD JUSTICE WALL: I am going to interrupt you because I think it may shorten things. I hope I went out of my way to make clear that each of these cases has to be decided on its own facts.
MR PURCHAS: Indeed.
LORD JUSTICE WALL: The fact that I have declared the disclosure unlawful very much seems to turn on the facts of this particular case.
MR PURCHAS: I have very little in addition to say to that. For those very reasons this would not be a suitable case for the Court of Appeal to deal with what Miss Studd sees as the public interest in this case because the vast majority of the legal propositions were agreed, and insofar as they were not agreed your Lordship has proceeded on the basis most favourable to the defendant. So there is no point of law which the Court of Appeal could grasp in this case.
LORD JUSTICE WALL: I would like to say this to you and Miss Studd. I am very sorry that there was such a delay in the delivery of the judgment. It was partly due to the fact that I was appointed to the Court of Appeal in the middle of it and also due to the huge pressure of work at the end of last term. I do apologise to both sides for the delay in delivering the judgment.
Miss Studd, I am going to refuse permission to appeal. I agree with you that this is an interesting area, it is an interesting point. But on the principal points you made and dealing with the last one first - I will fill in the requisite form so you will have it and I will give my reasons for refusing permission in detail - I do think that on the last point, on the facts of this particular case, the lack of the opportunity to make representations was a serious procedural unfairness. Although I did set out Miss Barton's arguments very carefully, the argument in particular that the claimant had the opportunity to deal with the matter in his police interview is one which I do not think is really sustainable. I quite understand, in the light of what has happened at Soham, these certificates will now be the subject of public interest and the Bichard investigation. It seems to me that on the first point you make I did attempt to decide the case not just on the individual facts but on the basis that there was no presumption against disclosure.
In those circumstances it does not seem to me that this particular case raises a point of public importance in which it would be appropriate to give leave to appeal. At the same time I recognise that the Court of Appeal might take a different view. What I am going to do is to allow that decision to be made by the Court of Appeal.
I will fill in the form giving my reasons for refusing permission and you will be entirely at liberty to make an application for permission which will then be dealt with by the single Lord Justice in the normal way.
MISS STUDD: For the benefit of the journalists, could we ensure that they look at the order because there is an injunction under the Contempt of Court Act preventing .....
LORD JUSTICE WALL: Yes. I think this case is of some public interest, but it is very much a case which - I reiterate it - has been written. Save that I have identified the Chief Constable, it is otherwise entirely anonymous. Is that right?
MISS STUDD: Yes.
LORD JUSTICE WALL: On your reading of it, Miss Studd, is that right? It is otherwise entirely anonymous.
MISS STUDD: Yes. It is.
LORD JUSTICE WALL: I have gone out of my way to anonymise not only the lady who made the complaint but also the relevant officers in the defendant's department who dealt with the matter. I would be very concerned to ensure that nothing is published which in any way would identify any of the participants in the case on the part of the Chief Constable.
MISS STUDD: It is identified on the court list and that is why I raise it.
LORD JUSTICE WALL: I am very grateful. I am sure that those who deal with these matters are extremely experienced and would not dream of offending against the normal rules.