COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
Hon Mr Justice Munby
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SMITH
LORD JUSTICE MOORE-BICK
(ON THE APPLICATION OF L)
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(instructed by John Ford Solicitors) for the Appellant
Miss FIONA BARTON
(instructed by The Directorate of Legal Services, Metropolitan Police) for the Respondent
RABINDER SINGH Esq QC
(instructed by The Treasury Solicitor) for the Intervenor
Hearing date : 13th February 2007
Crown Copyright ©
Lord Justice Longmore:
Section 115 of the 1997 Act provides, so far as material for present purposes, as follows:-
"(1) The Secretary of State shall issue an enhanced criminal record certificate to any individual who – (a) makes an application under this section in the prescribed manner and form countersigned by a registered person, . . . .
(2) An application under this section must be accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question asked – (a) in the course of considering the applicant's suitability for a position (whether paid or unpaid) within subsection (3) . . . .
(3) A position is within this subsection if it involves regularly caring for, training, supervising or being in sole charge of persons aged under 18 . . . ."
""exempted question" means a question in relation to which section 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) has been excluded by an order of the Secretary of State under section 4(4)."
Section 4(2) of the Rehabilitation of Offenders Act 1974 provides that:
"Subject to the provisions of any order made under subsection (4) below, where a question seeking information with respect to a person's previous convictions, offences, conduct or circumstances is put to him or to any other person otherwise than in proceedings before a judicial authority –
(a) the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions, and the answer thereto may be framed accordingly; and
(b) the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent conviction or any circumstances ancillary to a spent conviction in his answer to the question."
It is common ground that the relevant order has been made by the Secretary of State under section 4(4) of the 1974 Act.
"An enhanced criminal record certificate is a certificate which –
(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."
Section 115(7) then provides that:
"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 . . . ."
It is this provision that is central to this appeal.
". . . . it is useful to note the following significant aspects of the statutory scheme involving ECRCs.
(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."
"36 . . . . Having regard to the language of section 115, the Chief Constable was under a duty to disclose if the information might be relevant, unless there was some good reason for not making such a disclosure.
37 This was obviously required by Parliament because it was important (for the protection of children and vulnerable adults) that the information should be disclosed even if it only might be true. If it might be true, the person who was proposing to employ the claimant should be entitled to take it into account before the decision was made as to whether or not to employ the claimant. This was the policy of the legislation in order to serve a pressing social need."
The claimant, L, is the mother of a boy, X, who was born on 21st April 1989. He has a much older sister, Y. The family has come to the attention of both the police and social services. Because of concerns about X, the local authority arranged an initial Child Protection Conference which took place on 29th January 2002. The social worker reported concerns that X "may be exposed to drugs" and that L was not prepared to work with social services. She expressed the view that X "has no clear boundaries at home or at school" and reported that:-
"The general view of all the professionals is that [X] is at risk within his family because [L] has very little control of his behaviour and knowledge of his whereabouts for the large part of the day."
The Conference received detailed reports of the numerous occasions between August 1999 and December 2001 when X had been reported missing. It also received a detailed report from his school of his poor attendance and poor behaviour at school. The Conference was told that X was currently excluded from school for having assaulted his teacher. The teacher is quoted in the minutes of the Conference as reporting X to be out of control. A police officer from the local Child Protection Team is recorded in the minutes as saying:-
"there has been a lot of involvement with [X] and his offending and being reported missing by [L]. It is felt that a lot of the issues stem from his sister [Y], around drugs and prostitution. [X] is a frequent visitor to his sister's home."
Recording L's contribution to the discussion the minutes include this:-
"[L] refuses to accept that [X's] behaviour is a concern. [L] targeted [the social worker] as the cause of all her problems . . . . [L] said the root of the problem is the family being harassed by neighbours . . . . [L] feels that she is not being listened to and everyone else is the cause of the problems and she is not to blame."
"[L], born [date], came to police notice in January 2002 when her son, age 13, was put on the Child Protection Register under the category of neglect. It was alleged that the applicant had failed to exercise the required degree of care and supervision in that her son was constantly engaged in activities including shoplifting, failing to attend school, going missing from home, assaulting a teacher at school and was excluded from school. Additionally, it was alleged that during this period the applicant had refused to co-operate with the social services. Her son was removed from the Child Protection Register in June 2003 – after he had been found guilty of robbery and receiving a custodial sentence."
Shortly afterwards, on 21st December 2004, L was informed by the agency that her services were no longer required.
" There is a mountain of information contained within the docket, a large proportion of which is rumour, conjecture, and uncorroborated allegations. The only information that I consider to be safe to disclose is that which surrounds the applicant's son being subject of inclusion on the Child Protection Register under the category of neglect. Given that she has applied for a position involving regular contact with children, I consider this to be highly relevant; the applicant has consistently displayed a lack of ability to adequately care for and supervise her own child and the registered body should be made aware of her history when considering her employment application.
 [L] born [date] came to Police notice on 29.1.02 when her son, then aged 13 years, was put on the Child Protection Register under the category of neglect. It was alleged that the applicant failed to exercise the required degree of care and supervision in that her son was constantly engaged in activities including shoplifting, failing to attend school, going missing from home, assaulting a teacher at school and was excluded from school. Additionally, during this period, it was alleged that the applicant refused to work or co-operate with the Social Services. Her son was removed from the Child Protection Register in June 2003 having been sentenced at Court to a custodial period for an offence of robbery."
" I agree with DCI Gibson – the evidence is factual and relevant. In considering the disclosure we do identify her son by default and that does affect his rights. In this case the fact that the information is in the public domain and that the applicant seeks a post with children, and their rights need to be considered does on balance justify disclosure.
 Information should be more than speculation, it should have some basis in fact. It should be more likely to be true than not and one would need to consider whether on the balance of probabilities test it was true. Age: HO Circular Para 28 "The older the information the less likely it is to be relevant" (2003).
 The incident has been admitted or is otherwise considered to be accurate and verifiable.
 The source can be relied upon.
 The investigation has concluded and there is evidence to support the allegation.
 115(7) of the Police Act 1997 allows a Chief Officer of Police to disclose information that, in his opinion, might be relevant and ought to be brought to the attention of a registered body. Information might be relevant if a reasonable employer would find it material to a decision regarding employment, where the question of whether the applicant would pose a risk to the vulnerable was appropriate.
 The information relates to information that shows the applicant may be a risk to the physical, mental or moral welfare of the vulnerable.
 The incident was not connected with sex, drugs or violence but a lack of care.
 The incident is of concern and there is a specific reason to believe there is a risk to the vulnerable – lack of care.
 The HRA requires a balance to be struck between the right to private life and protecting the vulnerable from moral harm, mental or physical abuse. While individuals should not be at risk of being forever hounded, if a person chooses to seek this type of employment then they put themselves forward into public life and by that choice accept that information may be released. The impact of disclosure may result in his not being employed. While it would not be in society's interest to exclude an applicant from employment, social outlets, etc. as this may be a moderating factor on behaviour, the welfare of the vulnerable in respect of whom the risk may exist is of paramount importance, as it is their rights that legislation seeks to protect. The decision is one for police and there is no presumption against disclosure, the position is more in favour of disclosure unless there is a good reason for not doing so. (X v WM)
 Disclosure would cause little disruption to the applicants private life as the information will be known to most people to whom disclosure is made.
 A failure to disclose would result in the vulnerable being placed in some risk of harm through neglect.
 If information is such that it passes all other tests then it should be disclosed irrespective of DPA implications.
 Having considered these points and the information held I consider that disclosure is proportionate, in view of the nature of the information and the applicant's proposed role and necessary to protect vulnerable members of society."
The result of this was that the disclosure on the enhanced criminal record certificate ("the ECRC") was made when it was issued on 16th December 2004.
On 19th March 2006 the judge dismissed L's claim for judicial review on the basis that the legislation permitted the police to make the disclosure, that there was no error or flaw in either the approach or the decision of DCI Gibson or CS Morris and that the decision was compliant with the statutory regime and the European Convention on Human Rights ("the ECHR").
Ms Lang's first argument on the appellant's behalf was that section 115(7) could only refer to information about possible criminal activity or propensity to commit criminal acts because the police were only required (and entitled) to provide information which might be relevant for the purpose "described in the statement under subsection (2)". That statement is a statement that the ECRC "is required for the purposes of an exempted question" viz a question which is to be answered without regard to any restriction "relating to spent convictions or to any circumstances ancillary to spent convictions" (section 4(2) of the 1974 Act). So it was said that the information could only relate to criminal matters albeit that it could include information relating to possible criminal activity or criminal propensity.
"any information which . . . . might be relevant for the purpose described in the statement under subsection 2."
In my judgment the statement is the trigger for the provision of the information in that the information can only be provided in circumstances where the application is accompanied by a statement that the certificate is required for the purpose of an exempted question. Once that trigger exists, the only restriction is that the Chief Officer of Police must think (1) that the information might be relevant for the purpose for which the statement was made and (2) that the information ought to be included in the certificate.
Ms Lang listed a number of aids to construction which, she submitted, supported her argument. In chronological order these were:-
(1) the September 1993 Green Paper, preceding the 1997 legislation;
(2) the June 1996 White Paper, also preceding the 1997 legislation;
(3) the ministerial statement introducing the second reading in the House of Lords of the Bill which subsequently became the 1997 Act;
(4) the long title to the 1997 Act;
(5) subsequent official guidance in the form of DfES guidelines, ACPO guidance and Home Office guidance as contained in Home Office Circular 5 of 2005.
"29. The local records held by most police forces contain a range of information about individuals. This will include convictions and cautions for minor offences not recorded on Phoenix. Local records also include information which goes beyond the formal particulars of convictions but which may nonetheless be of legitimate interest to those considering employing individuals in particularly sensitive posts. Replies to the Green Paper suggested that the need to refer to such information in the interests of child protection was widely accepted as necessary by most, but not all, respondents.
30. After very careful consideration the Government has concluded that it is right for such information to continue to be disclosed where there are particularly strong grounds for it, such as to combat the risk of paedophile infiltration of child care organisations. It accepts that stricter guidelines on what may be disclosed would provide reassurance to those subject to checking in this way and that they should normally be able to see any information of this kind which may be made available on them."
The White Paper proposed clearer guidelines to govern the disclosure of non-conviction information as set out in Annex B. That Annex provided:-
"Proposed Guidelines on the disclosure of non-conviction information in England and Wales in the context of pre-employment checks on those seeking employment involving regular unsupervised contact with children
1. When responding to enquiries for information from local force records, the police will routinely disclose convictions, cautions and bindovers. They may also disclose other factual information about individuals where that information is deemed to be reliable and could indicate that an individual is unsuitable for the post in question.
2. The information may include details about known associates where the association gives rise to concern. It may also include details relating to decisions not to prosecute an individual or acquittals where the circumstances of individual cases give cause for concern, and where the information has not been discredited. It should not, however, include details of allegations which cannot be substantiated . . . ."
"An Act to make provision for the National Criminal Intelligence Service and the National Crime Squad; to make provision about entry on and interference with property and with wireless telegraphy in the course of the prevention or detection of serious crime; to make provision for the Police Information Technology Organisation; to provide for the issue of certificates about criminal records; to make provision about the administration and organisation of the police; to repeal certain enactments about rehabilitation of offenders; and for connected purposes.".
This long title pithily summarises the provisions of a long and complex Act of Parliament. In the light of the specific provisions contained in sections 112 – 126 of the Act, it would be inappropriate to use the phrase "to provide for the issue of certificates about criminal records" as a straightjacket inhibiting the natural construction of those sections. It is also to be noted that the long title ends with the words "and for connected purposes" no doubt partly for the purpose of avoiding arguments of the kind now put forward.
"Certificates of Criminal Records, &c"
but the "&c" confounds that argument.
"that the applicant poses a risk of physical or mental abuse to children".
But even here, the guidance does no more than (at most) proceed on an assumption of what the Act provides. Even this assumption hardly carries Ms Lang to her desired destination. One may readily grant that physical abuse must constitute criminal activity, but mental abuse, while deplorable, is much more difficult to define and it might thus be difficult to assess whether it constitutes criminal activity in any given case.
Permission to appeal has been refused on this question. Ms Lang submitted that the judge did not conduct a sufficiently rigorous assessment of the question whether the police had conducted a sufficiently rigorous assessment of the question whether the interference with L's private life constituted by the disclosure was justified and proportionate under Article 8(2) of the ECHR. The importance of this matter was said to be underlined by the fact that an individual cannot challenge the decision whether to disclose the information but can only, after the disclosure is made, challenge any factual inaccuracy in the certificate. It is said further that, on the authority of R (SB) v Governors of Denbigh High School  UKHL 15,  2 WLR 719, the court must conduct its own "intrusive" assessment of whether the decision to disclose was a justified interference with the applicant's right to private life. It was also said that Chief Superintendent Morris was factually wrong to say that the disclosure information would be known to most people to whom disclosure was made, when it was, of course, unknown to the agency who employed her and then deleted her from its books.
The overall conclusion is that the appeal must be dismissed and the renewed application must be refused.
Lady Justice Smith:
Lord Justice Moore-Bick: