COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE MUMMERY
THE RIGHT HONOURABLE LORD JUSTICE LAWS
| THE QUEEN ON THE APPLICATION OF "X"
|- and -
|CHIEF CONSTABLE OF WEST MIDLANDS POLICE & ANR
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Official Shorthand Writers to the Court)
MISS FIONA BARTON (instructed by JH Kilby, Force Solicitor) for the Appellant
MR RABINDER SINGH QC and MR JAMES STRACHAN (instructed by the Treasury Solicitor) for the SECRETARY OF STATE FOR THE HOME DEPARTMENT (INTERESTED PARTY)
Crown Copyright ©
The Lord Chief Justice :
(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.
"I recognise that this case deals with an issue of public importance, and one which is, moreover, topical in the light of events at Soham and the forthcoming enquiry into them. That said:-
(1) My decision depends on the particular facts of the case;
(2) Much of the applicable law was not in dispute, notably: (a) that Article 8 of the European Convention on Human Rights was engaged and (b) that the approach to disclosure under the common law taken by Dyson J in Re LM  1 FLR 612, 622-23 was correct;
(3) I decided that the common law principle that there was a presumption against disclosure (as identified and applied in ex parte Thorpe  QB 396 and followed in Re LM) was to be disapplied in the instant case (paragraph 91 of the judgment).
(4) It was conceded by the Chief Constable that as a consequence of section 8.4 paragraph 14 (paragraph 135 of the judgment) of the ACPO Code, retention of the information which was the subject of the ECRC would have constituted a breach of the Code. I deliberately made no ruling on whether or not the information was "criminal intelligence" within paragraph 8.5 of the Code (judgment paras 147-149), and made it clear that nothing in the judgment was designed to inhibit the exchange of information between the police and other statutory authorities' action in the field of child protection (judgment para. 115);
(5) The claimant's case both on identification and on procedural fairness seemed to me particularly strong on the facts. For example, the argument advanced by the Chief Constable that the claimant's police interview represented his opportunity to make representations on the material to be disclosed was, I thought, manifestly unsustainable.
In these circumstances it is a matter for the Court of Appeal to decide if the case raises a point of law of sufficient public interest to warrant its consideration. On the merits, I have to say that I do think that the balancing exercise required in the case falls firmly in favour of the claimant on the facts, and that an appeal directed against the outcome of the case would not, therefore, have any real prospect of success." Notwithstanding these reasons, leave was granted by Lord Justice Kennedy on 24 March 2004.
The Legal Framework
i) 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).
i) in the course of considering the applicant's suitability for a position (whether paid or unpaid) within subsection (3) or (4), or
ii) for a purpose relating to any of the matters listed in subsection (5).
"(4) A person applying for registration under this section must be
a) A body corporate or unincorporated,
b) A person appointed to an office by virtue of any enactment, or
c) An individual who employs others in the course of a business.
(5) A body applying for registration under this section must satisfy the Secretary of State that it
a) Is likely to ask exempted questions, or
b) Is likely to countersign applications under section 113 or 115 at the request of bodies or individuals asking exempted questions.
(6) A person, other than a body, applying for registration under this section must satisfy the Secretary of State that he is likely to ask exempted questions.
(7) In this section "exempted question" has the same meaning as in section 113."
(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.
i) The whole process of obtaining an ECRC is initiated by the person to whom the certificate will relate. The certificate is for his purposes to enable him to obtain employment which, at least in practical terms, will not be available to him unless he obtains a certificate.
ii) The certificate will only be seen by the applicant and his prospective employer.
iii) The applicant has the opportunity to persuade the Secretary of State to correct the certificate.
iv) The Chief Constable is under a duty to provide the information referred to in section 115(7). This is subject to the requirement that the information might be relevant and ought to be included in the certificate. What might be relevant and what ought to be included is a matter for the opinion of the Chief Constable.
v) The applicant is in a position to provide additional information if he wishes, whether in conflict with the certificate or not, to the prospective employer and it is the prospective employer who will make the decision as to whether he should or should not be employed.
Article 8 of the Convention
i) "Everyone has the right to respect for his private and family life, his home and his correspondence.
ii) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"It is alleged that on 11 December 2001 [the claimant] indecently exposed himself to a female petrol station attendant. It is further alleged that this was repeated on 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".
"On 16 May 2002 the claimant was interviewed by the police and then charged in relation to two alleged incidents of indecent exposure, which had occurred in the early hours of the morning on 12 December 2001 and on 7 May 2002 at a local garage. The complainant, Ms.R, was the cashier at the garage, and on each occasion Ms. R was on duty on her own.
On the first occasion, Ms. R says she saw a man whom she identified as a regular customer pass by the newspaper rack, which was directly under the window next to the counter. At that point she could only see his head and shoulders. For obvious security reasons, the door to the garage shop within which Ms. R was situated was locked, and customers were served through a hatch. The man appeared to be on foot, and had not driven a car onto the garage forecourt.
Ms. R says she recognised the man because he had been in the night before and had purchased a Mars bar and a bottle of water. She says that because he was a regular customer, she pressed the button behind the counter, which unlocked the door of the shop in order to let him in. She says that as soon as he entered the shop she saw that he was naked from the waist down. His genitals were plainly visible, although he did not have an erection. She says he purchased a Mars bar with a £10 note and said to Ms. R: "I'll be back later to rape you". After standing by the door and opening and closing it several times, the man asked Ms. R the time. She told him it was 2.50am. He then walked out of the shop and left the garage on foot. Ms. R does not appear herself to have telephoned the police, but says she later mentioned the matter to her manager.
Ms. R says the shop was well lit. She was plainly able to have a clear view of the man, whom she identified as a regular customer. She gives a description of him in which, among other details, she describes him as about 36 years of age, 5 feet 8 inches in height, black, but not very dark skinned, more of a mixed race appearance.
Ms. R says that the same man came to the garage in the early hours of 27 February 2002, 27 March 2002, and 10 and 24 April 2002. On each of these occasions he was driving a car, the make and number of which Ms. R noted (the car). On the first occasion the man made as if to draw petrol, but did not do so: on the remaining occasions he did draw petrol; he then paid for his purchases normally and left the garage without incident. On each of the last three occasion he paid through the hatch; on all four occasions the man was normally dressed, and apart from taking out the pump but not drawing petrol on the first occasion, behaved normally.
Although Ms. R noted the number and make of the car on 27 February, she does not appear to have informed the police at that stage.
At about 3.15am on 7 May 2002, Ms. R says she heard somebody tapping on the window of the shop. She says it was the same man, who was naked from the waist up, and said he wanted to buy a Mars bar. He then began to walk backwards, and Ms. R saw that he was completely naked. She refused to serve him: he pointed his finger at her and said: "I'll fucking sort you out". He then turned round and walked off. Once again, there was no car on the forecourt, and the man appeared to have arrived on foot.
Ms. R made a statement to the police, which is dated 9 May 2002, which she supplemented on 8 June 2002. At the conclusion of the latter statement she said: -
"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 car, which Ms. R had observed on the garage forecourt, was traced by the police to the claimant's employers, who had hired it for his use. There was no suggestion that anybody but the claimant had been driving the car at the relevant time."
"As will be apparent from the content of the disclosure set out at paragraph 3 above, reliance was placed by the Chief Constable on the claimant's police interview. The claimant declined the opportunity to obtain legal advice prior to being interviewed, and did not want a solicitor to be present during the interview itself. He was interviewed by two women police officers. At no time did he make any admissions, and at other times he specifically denied that he was the man who had exposed himself to Ms. R.
The main point, which appears to have persuaded the interviewing officers that the claimant was the man who had exposed himself to Ms. R, was his initial reluctance categorically to deny that he was the man. He said he could not remember the incidents put to him, and that he did not think it was him. One of the officers said in terms during the interview that she thought the claimant needed help, that it was the claimant who exposed himself and that he was not telling the whole truth.
No criticism is made of the interview, and it is always difficult, when reading a transcript, to get the full flavour of it. It was plainly a robust interview, and the officers' scepticism about the claimant's answers emerges very clearly. However, I feel bound to say that in my judgment, a fair and objective reading of it does not warrant the reliance placed on it.
Firstly, although it was by his own choice, the claimant did not have a solicitor's advice before and during the interview. Judging by his statements in these proceedings, which contain a forthright denial of any form of involvement, the interview might well have taken a different course had the claimant received such advice or had his solicitor been present.
Secondly, however, although criticism is made of the claimant's apparent lack of memory, and the improbability of his being unable to remember walking around naked, the interview is largely conducted by the officers by means of asking him whether or not he remembered relevant events and dates. When Ms. R's version of the first alleged indecent exposure is put to him, he is asked "Do you remember anything about that incident?" and he answers: "Not really. I cannot remember that". One of the officers then continues: -
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 if I had done something like that.
Any question about any incident which begins with the words: "do you remember doing x?" contains within it the implication that the person questioned has something to remember, and was, accordingly, the person who committed the act about which he or she is being questioned. In my judgement it is unsafe then to treat the answer "no" or "I can't remember" as incredible and to give it the same implication. As Mr. Squires points out, there are four occasions in the interview where the claimant categorically denies that he was the man who exposed himself to Ms. R. If (a) Ms. R's version of the events had been put to him; (b) had the claimant been asked: "was that you?"; and (c) had the claimant then said: "I can't remember" or "I don't think so", the passages in the interview might, I think, have had more force.
There is much in similar vein to the exchange I have set out in paragraph 38 above. As I have already stated, later in the interview the claimant denies in terms that he swore or was violent, or that he had threatened anybody. At this point he also denies in terms that he had gone into the garage naked at any time. He also makes the perfectly sensible point that since this was a garage, which he acknowledged he went to regularly, and since he could be traced by his car, why would he then go back naked and on foot? The questioning officer accepts that she cannot explain why somebody would go in naked and then go back as a normal customer.
Having now read the interview several times, I have come to the clear view that the summary of it in the "Other Relevant Information" section of the ECRC is partial, and carries with it an implication that the claimant was guilty, or at the very least the author of the summary believed him to be guilty. For reasons, which I will develop in due course, I agree with Mr. Squires that it would be wrong to place weight on the interview as reliable evidence tending towards the guilt of the claimant. In my judgment it is, putting the matter at the highest from the police perspective, neutral".
Events after the police interview
On 9 July 2002 the claimant was dismissed from his employment. The reasons for his dismissal are currently the subject of proceedings instituted by the claimant in the Employment Tribunal which have not yet been determined.
In the interview, the claimant agreed to take part in an identification parade. Parades were arranged for 16 August and 12 September 2002, but each time they could not proceed due to a lack of suitable participants. The claimant also agreed to take part in two other forms of identification testing, but these also could not be conducted due to the witness not being present or a lack of participants.
No identification parade was ultimately held before the claimant's trial, which was due to commence in the Magistrates' Court on 25 September 2002. Immediately prior to the hearing, however, it appears that the police conducted a covert identification in court and asked Ms. R to identify the perpetrator. She picked out someone who was not the claimant. Thereupon, the Crown Prosecution Service offered no evidence against the claimant and the claimant was acquitted.
The person whom Ms. R identified as the perpetrator was pointed out to the claimant by his solicitors. According to the claimant, the man identified was considerably lighter skinned than the claimant. He was perhaps of middle-eastern origin, while the claimant is Afro-Caribbean. He was also considerably shorter than the claimant (who is 6 feet tall) and did not resemble him in appearance.
When he was charged, the claimant was told he would receive a copy of the CCTV footage from the petrol station taken at the time of the alleged incident. This was not received, and the matter was pursued by the claimant through his solicitors. He was subsequently told that the footage had been displaced or lost during the course of the case. It thus remains unclear what, if any, information the CCTV footage contained.
The making of the ECRC
Following his dismissal from his employment as a social worker on 9 July 2002, the claimant applied for another social work position to a different social work agency. That agency sought information from the CRB about the claimant. On 14 February 2003 the Head of the West Midlands Police Central Information Unit, Ms. S, received an electronically transmitted request from the CRB to supply any "approved information" about the claimant. She instructed researchers to carry out standard checks of the local, designated, force computer systems.
The result, Ms. S says, was information relating to an offence of indecent exposure, which included an alleged threat to rape. Ms. S took the view that this clearly required further investigation, and sent for the crime file. She recites the facts she obtained from the file, noting that the record of the claimant's interview stated that: -
"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. "
The claimant complains that this is also a misrepresentation of the interview. In relation to the final sentence of the extract cited in paragraph 48, he cites what he is recorded as actually saying in the interview, which was: -
"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".
Ms. S refers to "aborted identification parades following objections from the claimant through his legal representative", and to the fact that it was nearly four months after she last saw the claimant that Ms. R was asked to identify him. She also makes reference to a previous incident in June 2001, when the claimant had been arrested following complaints by several teenage girls that a man had been running around naked in public. The claimant had been found in a clothed state by the police: the girls' evidence had been inconsistent, and no further action had been taken.
Ms. S then describes the exercise through which she went in preparing her advice for the Deputy Chief Constable about the disclosure of relevant information in the ECRC. She says she balanced the claimant's rights under Article 8 of the Convention with any potential risks posed to those with whom the claimant may have had contact in the course of his new employment. She points out (as I have already found) that there is no guidance on what "might be relevant" under section 115(7) of the 1997 Act. However, in order to undertake the balancing exercise, she carried out what she describes as "a risk assessment and a relevance test". The mental check list of factors she applied were as follows: -
(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 subsequent actions of the applicant;
(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; and
(j) the potential impact on any vulnerable group if this information was not disclosed.
As to relevance, Ms. S says she "restricted information to that which had a direct bearing on the potential risk posed by the claimant to the safety of children and vulnerable adults". She eliminated information of a more general nature, and says she would never disclose any information that was not already known to the claimant.
Having applied her risk assessment and relevance test to the claimant's case, Ms. S then sent a memorandum to the Deputy Chief Constable, in a standard format, requesting his approval to disclose the information stated in the memorandum. She adds that she did not include details of the earlier arrest of the claimant on 24 June 2001 (see paragraph 50 above) but that this clearly featured in her decision-making "when the disclosure relating to the offences between 11 December 2001 and 7 May 2002 was made".
I do not wish to be critical of Ms. S. She was plainly doing her best in difficult circumstances and without the benefit of any proper guidelines. The factors, which she identifies, seem to me to be a creditable attempt to identify relevant considerations to be taken into account. It is, however, in my judgement, unfortunate that Ms.S's affidavit does not explain how she balanced the various factors she identifies; nor does it give her reasons for reaching her conclusion that the non-conviction material should be disclosed. It is equally significant, in my view, that she does not appear to have given the Deputy Chief Constable any reasons for the decision she had reached. All her memorandum to the Deputy Chief Constable does is to present him with the information in the form in which it ultimately appeared on the ECRC, and to ask him to approve its disclosure.
The Deputy Chief Constable received the memorandum and the accompanying file of papers, which he read. He records that he was required to balance the claimant's Article 8 rights against any potential risks posed to those with whom the claimant may have future contact. He approved the disclosure in the identical terms put forward by Ms. S. His reasons for making the disclosure are stated as follows: -
"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 Determination of the Issues
The effect of the statutory framework on the common law requirement of fairness
"The nature and extent of the need will depend on the facts of the individual case. Moreover, it is precisely because the stakes are so high that the balancing exercise required by Article 8 of the Convention and the application of the common law principles must be rigorously carried out (see paragraph 90 of the judgment)."
He also approached the question of disclosure on the facts of the instant case "on the basis that there is no presumption against disclosure under section 115 and that the circumstances identified in section 115, identify, in general terms, a pressing social need for disclosure." However, he added that "this does not mean that disclosure of additional, non-conviction information under section 115 is automatic, or that it is not surrounded by the stringent conditions of natural justice and procedural fairness". (See paragraph 91 of the judgment).
"(1) . such a presumption being based on a recognition of (a) the potentially serious effect on the ability of 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."
"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."
"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."
"The first factor, which Dyson J then identified, was the authority's, own belief as to the truth of the allegation. The greater the conviction that the allegation is true, he said, the more pressing the need for disclosure. The second factor was the interest of the third party in obtaining the information. The more intense the legitimacy of the interest in the third party in having the information, the more pressing the need to disclose is likely to be. The third factor was the degree of risk posed by the person if disclosure is not made."
The effect of Article 8(2)
Lord Justice Mummery :
Lord Justice Laws :
Order: Appeal allowed; orders made in court below set aside; X's cross appeal dismissed; no order as to costs here or below save detailed assessment of appellant's costs; leave to appeal refused; liberty to apply in writing.