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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> A, R (on the application of) v Chief Constables Of C & Anor [2000] EWHC Admin 408 (25 October 2000)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/408.html
Cite as: [2000] EWHC Admin 408, [2001] 1 WLR 461
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QUEEN v. CHIEF CONSTABLES OF `C' and `D' EX PARTE `A' [2000] EWHC Admin 408 (25th October, 2000)
Case no: CO/2840/2000
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
Wednesday, 25 October, 2000
THE HONOURABLE MR JUSTICE TURNER
-------------------
-V-
THE CHIEF CONSTABLES OF `C' & `D'
EX PARTE `A'
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
____________________
TIMOTHY STRAKER QC and PAUL GREATOREX (instructed by the County
Solicitor) appeared for the 1st Respondent
NIGEL GIFFIN (instructed by the County Solicitor) appeared for the
2nd Respondent
GERARD CLARKE (instructed by the National Association of Head Teachers)
appeared for the Applicant
Judgment
As Approved by the Court
Crown Copyright ©
TURNER J:
Introduction
2. The applicant contended that the decisions concerned were unlawful because either they were contrary to relevant Home Office guidance and/or the Data Protection Act 1984 or 1998 and/or Article 8 of the ECHR and/or the principles of natural justice and/or Wednesbury principles.
3. The applicant is a school teacher who happens also to be a homosexual. In broad outline, this case is concerned with the fact that in C as well as in B complaints had been made about the applicant's conduct towards pupils which led to police investigation, but which did not lead to criminal proceedings. During 1999, the applicant applied for employment by D Education Authority. A conditional offer of employment was made. The local constabulary D were requested to perform a child access vetting enquiry in respect of the applicant. As the result it obtained the information concerning the previous police investigations which it then passed over to the County Education Authority. It is the actions of the two respondents in passing over the information from the one to the other and then to the Education Authority of which the applicant complains in these proceedings. He claims that the consequence of their having done so was to cause the offer of employment to be withdrawn.
History
4. The history of the case is as follows. On 20 July 1999, the applicant attended an interview for the headship of an infants' school in D. He was offered the post with a starting date of 1 January 2000. The applicant was called back for interview on 8 December. He was then informed that the offer of employment was withdrawn due to the entry of an incorrect date on his application form. Apparently this related to an employment which the applicant had held some eight years previously. He was also informed that the Authority had received a negative police check the details of which it was unwilling to divulge. It remains a suspicion in the applicant's mind that it was not the inaccurate information which had led to the withdrawal of the offer but the results of the police check.
5. The application form which the applicant completed and signed contained declarations to the effect that the applicant had neither convictions nor cautions for sexual assault and that there were no cases pending of a similar character. It was part of the printed pro forma that the applicant also `agree(d) to a police check being made for the existence and content of any criminal record' he had and that `spent convictions (would) be disclosed'. On the lower part of the pro forma there is a section described as being for LOCAL EDUCATION AUTHORITY USE ONLY. This is section of the form is in the nature of a request to the relevant police authority and states that "The above named will have substantial access to young persons under the provisions of the Joint Circular 44/86; 102/88; 9/93. Please check for any record of convictions or cautions".
6. The relevant circular is 9/93. Only the passages in the document which bear on this case are set out below.
SUMMARY OF CONTENTS
This Circular published jointly with the Home Office, the Department of Health, and the Welsh Office, provides at Annex A, revised guidance about the arrangements for criminal background checks on persons appointed to work with children.
SUBSTANTIAL ACCESS
To qualify for a police check, posts should entail a substantial level of access to children which may be unsupervised, and will be regular or sustained. Many of those staff in the list given in paragraph 17 [which includes the post for which the applicant was applying] will have substantial access to children in these terms and, therefore, should be checked through these arrangements. In some cases, however, the situation may be less clear. ... .
THE POLICE CHECK
For all posts covered by these arrangements, the police check will be made against national and local police records. The national records include details of:
persons convicted of reportable offences, that is broadly speaking, those offences for which a term of imprisonment may be given; and
persons who are to be prosecuted for such offences.
Depending on the policy of the police force concerned, local police records may contain details of:
convictions for certain minor offences,
cautions,
bind-overs (including those where there has been no conviction), and
other relevant factual information which the police would be prepared, if necessary, to present as evidence before a court or a tribunal. This may include information about acquittals or decisions not to prosecute where the circumstances of the case give cause for concern.
Information from local records, other than details of convictions, non-conviction bind-overs and cautions, should be disclosed only on the authority of a police officer of the rank of Assistant Chief Constable, or above or, where appropriate the Head of the National Identification Bureau.
SENIOR NOMINATED OFFICER
With the exception of non-metropolitan district councils or, subject to the agreement of the local police force, a small number of senior officers (eg assistant director or equivalent) in each relevant department should be responsible for the operation of the procedures, and in particular for:
overseeing the checking procedure within the authority ...
ensuring that requests fall within the terms of this circular;
ensuring that information received from the police is released only to those who need to see it; ...
PROCEDURE
A police check should not be requested until a conditional offer of employment has been made. A check should not be made if an applicant is found unsuitable for other reasons.
Requests for a police check should be sent to the chief officer of the police force in the area in which the applicant has applied to work. They will liaise as necessary with the applicant's "home" force. Requests must be made in a form consistent with the model lay out shown [and used in the present case]. The applicant must sign the form or give his permission in writing for a police check to be carried out. It should be made clear to the applicant that refusal could prevent further consideration of the application.
**************
Where information provided by the police differs from that provided by the applicant, and it is of significance, the employing authority must discuss it the discrepancy with the person before reaching a decision whether to appoint.
Where there is disagreement, the person should have the opportunity to see the information provided by the police. ....
8. The applicant has at all times strenuously denied that he has at any time behaved indecently towards any child in his charge. The allegations investigated by the separate police forces were, he contends, false in the sense of having been motivated by malice. For the purposes of this judgment it is a matter of no consequence whether the allegations were false or not. It is not competent for this court to carry out any form of enquiry as to the truth or falsity of the allegations.
9. It was the case for the applicant that disclosure, of the kind which occurred in this case, should only take place when there was a pressing need supported by cogent evidence. There was neither pressing need nor cogent evidence in the case of either disclosure. In particular when allegations which raise suspicion, and no more, are made disclosure should be the exception and not the rule. It makes no difference that in the present case one public body was disclosing to another. The `pressing need' test had still to be applied. All that the second respondent had done was to have applied a low level of relevance to the question whether it should have disclosed or not.
The disclosures
10. The disclosures of which the applicant complains were contained in a letter written by an assistant chief constable of D on 6 December 1999 and was in the following terms:
Our enquiries ... reveal an investigation was carried out by the C Constabulary following allegations of inappropriate behaviour with children at W... Primary School in 1998 whilst employed as Headteacher.
We have also established that a similar investigation was carried out by B Police following previous allegations of inappropriate behaviour towards children at S... Primary School in 1996 whilst employed as a Reception Teacher.
The investigations were independent of each other albeit of a similar nature. The allegations included specific instances of indecent assaults on boys. The Crown Prosecution Service decided there was insufficient evidence to charge Mr A... with any offences following the investigations.
In view of the matters referred to above, I have no hesitation in disclosing the information to you. However, I am concerned that Mr A... may be currently employed in a position where other children may be at risk, albeit in another County and with another Education Authority. If you are able to confirm this then could you please contact me in order that I can ensure that this information is passed to the appropriate County Education Officer.
Applicant's case
11. It will be recalled that the decision in ex parte Thorpe was one which arose out of the decision of a senior police officer to reveal to the owners of a caravan site information which had been published in the local press concerning the convictions of the applicant and his wife of various paedophile offences. Thereupon the owners had requested the applicants to vacate the site, which they did. The applicants then commenced proceedings for judicial review seeking declarations that the policy and the decision to inform the caravan site owners were both of them unlawful. Although the case was presented on a different basis in the Court of Appeal, the decision of the Divisional Court was nevertheless approved. In a passage of the judgment which is to be found at p428 Lord Woolf MR said
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 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 be in the best position to obtain the information which will be valuable in assessing the risk. In this case the gist of what Detective Sergeant Lewis had learnt about the applicants should have been disclosed to them.
12. Criticism was directed at the C Constabulary because, the request had come from another police force, they had treated it as routine and had not applied the pressing need test. Inferentially, the point that was being made was that before responding to D's request, C should have gone through the rigorous series of tests which the Home Office Circular suggests should be carried out. C had also taken the view that the exchange of information between police forces was governed by the requirements of data protection and the "rules and legislative provisions which allow us to transfer such information"; see witness statement of the Assistant Chief Constable of the C Constabulary. This witness also confirmed that he would not have expected to have had chief officer involvement in authorising the exchange of such information, as such exchanges are of the essence of police intelligence and law enforcement agencies nationally.
13. Much reliance was placed on the decision of Dyson J in the case of R v. Local Police Authority in the Midlands ex parte LM [2000] FLR 612 in which he held that the power to disclose information about non-conviction matters existed in a case where there was genuine and reasonable belief in the necessity to disclose for the protection of children. He also held that before such information was disclosed, in accordance with the decision in ex parteThorpe (above), each case should be considered on its own facts and that a blanket approach to disclosure was impermissible. No such disclosure should be made unless there was a pressing need, in the public interest so to do. Thus, there had to be a balancing exercise carried out in which the need to protect children, on the one hand, was set against the need to safeguard the rights of the individual, on the other. Dyson J went on to hold, see holding (4) in the headnote
Even if the correct test had been applied, the decision to disclose would have been unlawful. Disclosures of allegations of child sex abuse can have grave consequences and so there must be real and cogent evidence of a pressing need for disclosure. There was no such evidence here. To have disclosed the allegations would have been irrational.
In my view the guiding principles for the exercise of the power to disclose in the present case are those enunciated in (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 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. It is true, as Mr C pointed out in his letter ... Lord Woolf referred to the requirement of a pressing need for disclosure to `members of the public'. But that was because on the facts of the case the persons to whom disclosure was to be made were members of the public. The same principle applies regardless of the identity of the person or persons to whom disclosure is to be made.
14. Basing himself on ex parte LM, counsel for the applicant submitted that (a) disclosure should only be made when there was a pressing need for that to take place (b) this required a detailed consideration of the case by a person of some authority (c) the test was the same for whatever authority was the disclosing authority and (d) there was a distinction between an operational enquiry on the one hand and information which would be disclosed in response to a child access vetting enquiry made by an outside police force on the other. It was necessary for the force which was responding to the request to analyse the information which was available to it, before passing it on, or there was a risk that the receiving force might give it more weight than it should. The C force was also in error in not providing an opportunity for the applicant to comment on the information before passing it on to D. It was suggested that, following an observation by Kennedy LJ in Woolgar v. Chief Constable of Sussex Police [2000] 1 WLR 25, the applicant should have been informed what the authority intended to do in order that he could consider making an application to the court for its assistance; see p37 of the judgment. Thus, it was submitted that the point was one where there had been a breach of the principles of natural justice.
The case for C
15. On behalf of C it was submitted that the principles which govern disclosure of information between police forces should be seen differently from those which govern disclosure by a public authority to the public and, also, from the police as a public authority and, say, a local education authority. As a matter of law, it was submitted that there was an obligation on police forces to co-operate with each other in performing their law enforcement functions.
16. Under section 1 of the Police Act 1996, England and Wales are divided into police areas which differ in size and geographical spread. A constable has all the powers and privileges as such throughout the area covered by two countries; section 30. It is apparent from these and other provisions that there is a measure of central direction and control such that in a practical sense it is not realistic to expect separate police forces to operate as though `Chinese walls' were erected between them. It was of the essence of police intelligence that there were no bars to the provision of information in the possession of one police force being freely passed to another.
17. Analysis of the applicant's claim, it was suggested, showed that it involved two different propositions. The first was that the transfer of information between forces was subject to the same constraints as if it were to take place between a police force and a non-public authority. Secondly, it must be the applicant's case that, before C provided information to D, he should have been afforded the opportunity to make representations to C why there should either be no, or only modified disclosure.
18. As to the first of these, the outstanding point is that the exchange of information between police forces is both a proper and essential function of efficient policing. By virtue of the provisions for co-operation contained in the Police Act, the law expressly contemplates that there will be widespread exchange or transfer of information between forces. It was submitted that the common law did not require that a person had to have, or as here merely suspected of having, committed offences. Such was not expressly illegal. There was no inherent procedural impropriety and there was no element of irrationality in making that transfer. On these bases there were no grounds upon which the court could, in the circumstances of this case entertain an effective application for judicial review of the actions of C Constabulary.
19. It was submitted that the only point which might be arguable was if the applicant ought to have been afforded the opportunity to make representations, and this had been denied; that would have amounted to procedural impropriety. As against this submission, there was no statutory requirement that such should take place. The Data Protection Act 1984, had no application to this case because it only applied to information which was automatically processed. The Data Protection Act 1998, which significantly was passed in the same year as the Human Rights Act, however, recognises that information of the kind which is involved in this case is "sensitive personal data"; as to the meaning of which, see section 2. Under this Act, personal data which are processed for the prevention and detection of crime are exempt from the first data protection principle (which requires that personal data shall be processed fairly and lawfully under Schedule 1 part 1 of the Act) if one of the conditions in Schedule 2 and at least one of the conditions of schedule 3 are met. These conditions are (Schedule 2), so far as material to this case either that it is necessary for the taking of steps at the request of the data subject with a view to entering into a contract or that the processing is necessary for the exercise of functions of a public nature exercised in the public interest. Under paragraph 7 of Schedule 3 processing which is carried out for the exercise of any functions conferred on a person by or under any enactment is exempt. Data which are processed in circumstances specified in an Order made by the Secretary of State are also exempt. The Order known as the Data Processing (Processing of Sensitive Personal Data) Order 2000 has been made by the Secretary of State. Article 2 provides that
The circumstances specified in any of the paragraphs in the Schedule to the Order are circumstances in which sensitive personal data may be processed.
The processing is necessary for the exercise of any functions conferred on a constable by any rule of law.
20. It was submitted that the act of transfer by C to D did not, by itself have any adverse effect on the applicant's private life. The information remained confidential to that other police force until it took action to dispense the information either to the public or to another public authority, as happened here. Accordingly, there was neither prospective nor actual breach of any of the applicant's human rights.
21. Turning to the facts of the case which was sought to be made against C, it was submitted that the response which had been made dealt with the questions on the basis that it was another police force which would have ultimately to consider what it would do with the information which was to be transferred. The Assistant Chief Constable was not concerned to claim that he had taken personal responsibility before the information had in fact been transmitted. In paragraph 38 of his witness statement the officer said that he had been fully aware of the procedure which had been followed "from (his) regular updates on the case" and accepted "organisational responsibility for the decision taken by his staff and approved of it". Reference was made to the statement of Mr Cake (see below) where he said that the D Constabulary "takes its own independent decision as to what to disclose ... to third parties", in support of the proposition that it was for the receiving force to decide how the information it received should be treated.
22. Properly understood, neither the decisions in ex parte LM nor ex parte Thorpe were concerned with the position concerning disclosure or transfer of information between police forces. It was submitted that what Dyson J said, in the former case, at p622
The same principle, however, applies regardless of the identity of the person or persons to whom disclosure is to be made.
Mr C considers that a different public interest test should be applied. For the reasons that I have already given, I think that Mr C was wrong about that.
The case for D
23. On behalf of D Constabulary it was accepted that information of the kind in issue here should only be disclosed on the basis of `pressing need'. There were four limbs to the case that D faced. These were:
A. That the Constabulary had asked itself the wrong question;
B. It had reached an unreasonable conclusion (Wednesbury irrationality);
C. It failed to investigate the allegations before making disclosure;
D. It had failed to afford the applicant an opportunity to make representations before passing the information to the LEA.
These points will be considered in turn.
B. A proper understanding of the lengthy and detailed process of reasoning contained in paragraphs 10 to 18 of Mr Cake's statement provided a sufficient indication that the decision was not irrational, in the Wednesbury sense. In summary, weight was attached to the views of the officers who had investigated the complaints which had been made to the police in both B and C. Those views were that there was no reason to suspect that the complaints were other than genuine and well founded. Furthermore, it was not an irrelevant consideration that there had been complaints of a similar nature in a school setting, in two separate counties within the relatively short timescale of two years.
24. In this context, there had also to be addressed the question of `pressing need'. It was submitted that a decision by one public authority, the police, to another in the position of a local education authority was not, pace Dyson J in ex parte LM, to be equated with publication to members of the public as in ex parte Thorpe. It was submitted that there was no basis for any assumption to be made that the LEA would not treat the information otherwise than in accordance with the guidance in the Circular and that it would accordingly deal with the information only in accordance with the `need to know'. It was unarguable that the applicant was a person who fell within that class of persons who would have substantial access to young and vulnerable children. So, it was submitted that, even if the allegations which had been made only carried a low possibility of being true, the risk in that event was one in which that there was a pressing need for the LEA to have been notified.
25. Finally, the welfare of the children in respect of whom the risk existed was a matter of paramount consideration. They have rights under the ECHR which are entitled to respect; see Article 8(2).
26. C While accepting that the pressing need test was apposite, it was submitted that it was relevant to enquire for what purpose the information was to be transmitted by the D Constabulary. In this context it was further submitted that there was no duty upon it to re-investigate the original allegations and form its own view as to their truth or falsity. No more was it any part of the Constabulary's function to decide whether or not the applicant should be appointed by the education authority who were in the best position to evaluate the materiality of the information. On the contrary, it was the duty of the Education Authority to make its own assessment of the information to enable it to decide whether or not to confirm the appointment. In making the decision to what extent it should assess any of the information before passing it on, it was material to consider that it was to be passed to another authority operating in the public field which had a specific duty to consider the interests of child protection. There was no basis for D to doubt the opinions of the B and C police officers who had carried out the original investigations. There was plainly, however, a duty on D to assess whether or not there was a pressing need for the education authority to be given access to the information to enable it to discharge its functions satisfactorily.
27. D Although Mr Cake has accepted that he would have permitted the applicant to make representations (see paragraph 21 of his statement), further that he would be prepared to receive representations if the issue arose again, it was contended that it was now impossible to ascertain why they had not been sought by Mr Furnace (the officer now on long term sick leave). It was not accepted that it was legally necessary or practicable for a public authority in the position of D Constabulary to invite representations. It would be otherwise if it were a question of conveying the information to the public, as was the case in ex parte Thorpe.
28. The obligation for any public authority to receive any representations which the applicant might wish to make in relation to the information, must rest with the authority which would have to decide whether or not to confirm his appointment.
29. Further submissions were directed to the issue of the applicant's human rights under the provision of Article 8 of the Convention. There were two aspects for consideration. The first was whether this Article was engaged at all. The second was that, even if it were, the second paragraph of it justified the disclosure of the information because it was "in the interests ... of the prevention of crime, for the protection of health or morals, or for the rights or freedoms of others". As to the first of these points, the issue depends on the resolution of the question whether, in putting himself forward for employment in the public sphere, the applicant is waiving that right, or otherwise subjecting his private life to an element of intrusion by a public authority. The pointers in the direction of this being the correct way to approach this issue are the grant of the permission for a police check to be carried out which was provided in the form of application to the education authority. In R v. Worcester County Council and Others CO/4550/99 Newman J considered the question how far the concept of "private life" was congruent with an individual's employment life. Having referred to Niemitz v. Germany [1993] 16 EHRR 97, Amman v. Switzerland (16 February 2000) he said
27. In my view there is little in these cases to support the conclusion that an implied statement in connection with the suitability of a person to be employed, derived from the history of his employment, interferes with his private life. It is information in connection with his public life, in this instance as a teacher. It does not fall within the bracket for inclusion envisaged in Niemitz in connection with forming relationships in the course of business or professional life. It goes to the manner in which he has conducted his professional life and the implied statement in connection with his public life.
28. Ultimately each case depends on its own facts, but I extract the following from the cases:
(1) The "notion of private life" is broad enough to include, to a certain degree, activities which can be seen to be an aspect of the development and fulfilment of an individual's personality, for example, in establishing relationships, even though various activities have occurred in a professional or business context.
(2) The effect, where appropriate, of including activities in a business and personal context within Article 8 is limited and selective. It recognises the conduct as being within private life. It does not extend the notion of private to an individual's business or professional life.
(3) Activities occurring within an individual's business and professional life will be encompassed within Article 8 where the dividing line between them and private life is not clearly distinguishable, for example, where it can be seen that it has occurred at a place where access to the public is excluded and some domestic authority is exercised.
30. In my judgment, the reasoning in (Thorpe) and the approval given by the Court of Appeal to Buxton J's approach (in the Divisional Court; see p415G to 416C) does not point in the opposite direction. ... . The critical point which led Buxton J to conclude that Article 8 was engaged, was the conjunction between communication of information by the police of convictions and the presence of individuals on the site. This meant that the individuals were at risk of forever of being hounded and unable to leave the past in the past. ... . If a person chooses to assert a right to be employed as a teacher or social worker, he puts himself forward into public life and by that choice information is released about his public life.
30. In summary, it was submitted on the facts that D had applied the correct "pressing need test" and that there was such a need for the local education authority to be informed of the matters disclosed as the result of the police check. In later detailed written submissions counsel for D elaborated why he submitted that it had asked itself the correct questions and arrived at a conclusion which was reasonably open to it. The written submissions also condescended into detailed matters concerning the quality of the decision making by both B and C. Having regard to the conclusion which I have reached in this case, it is unnecessary for me to do more than to say that I have studied those submissions. Had it been appropriate to embark on an enquiry into the value to D of the information provided by both B and C, I would have been minded to find that there was ample material available to D to have reached the factual decision that it did in these respects.
Discussion
31. It has to be remembered in all these cases that the absence of conviction, caution or even arrest and prosecution does not mean that the allegations were not in fact true. Clearly, in a case where there has been no conviction or admission, great circumspection needs to be shown in handling sensitive information.
32. In discussing how the court should approach the `decisions' it is appropriate to take note of the relief which is sought. The two `decisions' that are challenged are the `decisions' by the two police forces to pass on the non-conviction information relating to the applicant to bodies which are also themselves public authorities. Declarations are sought that neither was entitled to pass on that information and that such disclosure as has taken place contravened the provisions of the Data Protection Acts of 1984 or 1998. I propose to decide the last points at the outset.
33. In my judgment the applicant has no basis for making a valid complaint that there was any breach, or breach which could be properly entertained in proceedings for judicial review, of any provision in either Act. As to the earlier Act, it did not apply to information which was manually processed, as it was here. As to the later Act, although the information plainly falls within the category of "sensitive personal data", it is equally clearly exempt from the provisions of the Act by virtue of the first data protection principle and the provisions of the Data Processing Order (above).
34. The first ground upon which review was sought was "illegality". The illegality upon which reliance was based was fourfold as set out above. In reality the four condense into two only. This is for the reason that the data protection point proves, as above, to be without any proper legal foundation. That leaves illegality as formulated by the applicant and consisting either of failure to have complied with the provisions of the Circular, the principles of natural justice and Wednesbury irrationality. A failure to comply with a Government Circular cannot of itself lead to any actionable illegality. It can, however, properly be relied upon as evidence that a public body which should observe its provisions has not complied with some other administrative duty in an appropriate or lawful manner. In the present case, there is an obligation at common law, and probably also under statute, for police forces to co-operate with each other and, for that purpose, to provide information to other police forces which will enable them better to perform their police functions. As has been seen, neither Act contains any inhibition on the provision of sensitive information which is, or may be, of value to another force. No other source of statutory prohibition has been suggested.
35. Breach of one of the conventional elements of natural justice is probably an inappropriate head under which to base a claim for relief. Natural justice should not be regarded as a discrete head of relief. As Lord Diplock said in Council of Civil Service Unions v. Minister for the Civil Service [1985] 374 at p410
Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call "illegality", the second "irrationality" and the third "procedural impropriety". That is not to say that further development on a case by case basis may not in the course of time add further grounds. I have in mind "proportionality" which is required in the law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.
No doubt there is an absolute and unconditional obligation binding the police authorities to take all steps which appear to them to be necessary for keeping the peace, for preventing crime ...
36. In the present case it is necessary to determine whether the passing of information from one police force to another amounts to a `decision' which attracts an obligation that should be judged according to the principles of procedural fairness. In ex parte Thorpe, information passed from agencies (police and probation), which operated in the public sphere, into the public domain. In such a case, it is easy to identify the stage at which procedural fairness should operate. It is, in my judgment less easy to identify the existence of such a stage when information is merely passed from one police force, when both were doing no more than act as a local division of an agency which has national responsibilities, to another which shares identical characteristics. The respondents both submitted that neither police authority was doing more than acting as a conduit for the passage of information. While the word `conduit' may be a figurative description of what was done, it does not assist in defining what are the characteristics of an activity that will attract a duty to act with procedural fairness.
37. In De Smith, Woolf and Jowells Principles of Judicial Review (1999) the suggestion is made
That entitlement (to procedural fairness) can arise from a statutory duty to provide a particular procedure, or from a relationship recognised by the common law, involving deprivation or diminution of a right or protectable interest. It may also, these days, arise out of a "legitimate expectation" encouraged by the decision maker.
In the case law since the late 1960's, the courts have demonstrated considerable flexibility in their manipulation of the critieria used for determining the circumstances in which a duty to observe the rules of natural justice would be implied. And as long as it was remembered that the degree of procedural formality required by the rules was capable of considerable variation according to the context, an extension of the range of situations to which they were applied did not attract the criticism that the courts were "over-judicialising" administrative procedures. Since 1967, the courts began to employ the term "duty to act fairly" to denote an implied procedural obligation - the contents of which may fall considerably short of the essential elements of a trial or a formal enquiry - accompanying the performance of a function that cannot, without overly straining linguistic usage, be characterised as judicial in nature. ... The principal value of the introduction of the duty to act fairly into the court's vocabulary has been to assist them to extend the benefit of basic procedural protections to situations where it would be both confusing to characterise as judicial, or even quasi-judicial, the decision-maker's functions, and inappropriate on a procedure analogous to a trial.
38. So long as, in the instant case, no public authority had taken a decision which had, or could have had the effect of prejudicing any of the applicant's rights, the scope for imposing an obligation on those authorities that they should act with procedural fairness was limited, if it existed at all. The public authority to private individual divide, which is readily identifiable as the stage at which procedural fairness should be found to operate is not present. It is for these reasons that I respectfully find that I am unable to follow the dicta of Dyson J in ex parte LM in the passages of his judgment which have already been cited. In fairness, it is not apparent that, any more than in the present case, he was assisted by detailed submission on the question whether or when a duty should be held to arise, rather than the circumstances and manner in which it should be exercised. The consequences of that judgment, if it were literally applied, seem to me respectfully to fall foul of the caution against "over-judicialising" the administrative process.
39. There is no doubt as to the existence of the power, indeed it may more properly be described as a duty, as between one police force and another, to disclose sensitive information as the result of a child access vetting enquiry. The question at issue, then, is whether the judicial function has any role to fulfill in evaluating the process. I abjure the word `decision', by which one police force communicated the information to the other.
40. It is precisely because of the decision of the police to disclose sensitive personal information to the public concerning the applicants' past in ex parteThorpe that the duty, not to act in a way which was procedurally unfair, was found to exist. In the present case, the transfer of information by B and C to D had no immediate or even indirect consequence for the applicant. It is well arguable, and I would be minded to hold, that the mere transfer of information between police forces which did not, by itself, impinge on the rights of the applicant, was not a situation in which the doctrine of procedural fairness was engaged at all.
41. What then of the position of D when the information was passed by them to the education authority? There cannot be the slightest doubt that the education authority had a lawful interest and a "pressing" need to receive the information which was in the possession of the County Police since it was or could be important as affecting the decision which it was required to make. In one sense, the education authority was the body best qualified to decide what, if anything, it would make of the information with which it was being provided. If it was uncertain about the strength of the complaints and needed to know more in order that it could make an informed decision, it was always at liberty to ask for assistance from the communicating police force for its opinion about that matter. It would thereafter be for it to decide whether, or to what extent, the non-conviction material should inform its decision. Before it did, it would, of course, have to provide the applicant with at least the gist of that information and offer him the opportunity to make representations about it. But I am not concerned with the mechanics of a situation which is not before me and which, on the evidence, never happened. There is evidence before the court that the decision of the education authority was not related in any way to the non-conviction material available to it.
42. There is, in my judgment, nothing in the point as to the rationality of the decision, if such it was, for D to communicate non-conviction material to the local education authority for the purpose for which it had been sought. If the information was in the possession of D, subject only to the question whose was the obligation to assess its worth, there was clearly a most "pressing need" for it to be made available to the education authority.
Conclusion
43. In summary, therefore, there was, in my judgment, no procedural impropriety arising as the result of the separate `decisions' by C to communicate with D and for the latter to communicate the results of its enquiries to the education authority. Important as the Circular from the Home Office, undoubtedly is, its legal significance is limited. I doubt not that it sets out a code which amounts to administrative "best practice". It can no more, dictate the circumstances in which the law will intrude on the administrative process than the law says that it can. On a simple basis, there is an obvious need to keep non-conviction material in the hands of as few people as practicable in a well administered society. To the extent that the Circular encourages confidentiality, in this narrow and non-technical sense, it is, in my respectful opinion, a wholly meritorious document. But it cannot, nor does it attempt to, impose fetters on the obligations of police authorities to pass information between each other. What it does attempt is to prescribe a means of limiting the opportunity for sensitive personal data to reach the public domain. It is significant, in my view, that the Circular restricts the number of people, as well as the positions which they hold, to those to whom such sensitive information may be passed - see paragraph 19 of the Circular.
44. In the result and for the reasons which I have given, the application fails and must be dismissed.
One last point is for consideration is that of delay. Given my decision on the substantive issues in the case, delay as a factor in the exercise of discretion to grant relief does not arise. Had the decision on the substantive aspects of the case been otherwise, it would have been necessary to analyse the reasons for the delay in bringing this case before the court and whether or not there were good reasons for the delay.
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MR JUSTICE TURNER: Mr Giffin, Mr Greatorex, Mr Clarke, I am grateful to you all for the editorial corrections which you prepared. You may or may not have noticed that there have been some textual alterations to the judgment since the draft was prepared. I have discovered one or two typographical errors that I had not spotted before and had managed to evade counsel also. I propose to introduce those corrections as I hand the judgment down, thank you.
As I have already indicated, the draft judgment was made available to the parties. I have made various typographical corrections and one or two editorial corrections. There still remain some corrections to be made.
Paragraph 11, line 6, between the words "caravan owners" the word "site" should be inserted. Paragraph 14, for some reason the name of the case was not underlined, that is Woolgar -v- Chief Constable of Sussex Police. In the line after that case appears, the word "of" at the beginning of the next line should be deleted. Paragraph 19, line 9, the word "is" should be "are". Two lines up from the bottom of the page, the sentence which ends "under any enactment" insert the words "is exempt".
Paragraph 22, the pre-penultimate line, "was wrong if it was intended" insert "to apply to inter-police force transfers of information". Paragraph 32, line 1, in the middle of the line delete the word "took". Paragraph 36, line 4, insert a comma after the parenthesis:
"...(Police and prohibition), which operated in the public sphere..."
Four lines lower down, the word "act" should be transposed to the end of the line so that it reads:
"...when both were doing no more than act as a local division of an agency..."
That concludes the alterations and I now formally----
MR GIFFIN: My Lord, I noticed something further just at the last moment. In paragraph 23 of the judgment. My Lord sets out lettered submissions, A to D. A and B are introduced below, but I do not think one sees C and D as such, I think we were probably content for them to come at the start of paragraphs 26 and 27 respectively.
MR JUSTICE TURNER: Yes, I am most grateful to you, C after 26 and D after 27 thank you. One final matter before we leave this case is, I have received a note from the Press Association and the Editor of the Strand News which concerns publicity in this case. Inadvertently it is conceded that in reporting the earlier hearing, the two police forces were identified. The note then proceeds to say:
"Whilst we appreciate the concerns of the parties, we wonder if the court was asked to consider the competing interests of the press in being able to carry fully detailed reports of a case involving a matter of public interest. In the past it has been most unusual to restrict the reporting of names except in cases where the welfare of minors or vulnerable adults was involved. It has been even more unusual to ban the naming of a police force given the importance of their accountability to a public which should be fully informed of policing activities, save in very exceptional circumstances."
It seems to me inevitable, given the content of the judgment, that if the names of the police forces are given, it is a very short trail to discovering the identity of the Applicant.
There are two questions: one, is it in the public interest that the Applicant's name should not be divulged?
Two, if it is, is it sufficient if the police forces are simply identified by a letter which does not correspond with the initial letter of the county of which they are the respective police forces.
MR CLARKE: My Lord, I have discussed with my learned friends the matters that we needed to canvass with my Lord before departing this was, being one of I think an anonymity order. My Lord, the Applicant's position is, that we would invite the Court to continue the order in the form as originally granted by Newman J on the permission application. My Lord, can see it is set out on page (i) of the bundle.
MR JUSTICE TURNER: I do not have the bundle with me.
MR CLARKE: My Lord, I can hand it up. Basically to summarise it:
"It is a publication of the applicant's name and address or any matter calculated to identify him in any proceedings, including the names of the respondents, the applicant's past and potential employers, the school where he worked and the sort of work he was currently doing and the persons been involved with the investigation against him."
MR JUSTICE TURNER: What is the basis for the Applicant's anonymity?
MR CLARKE: My Lord, the problem is we are dealing with allegations of a highly charged nature, which allegations have not of course been the subject of criminal proceedings and are in their nature unproven. The nature of the allegations are such that they inevitably are very damaging to an individual if they are disclosed beyond certain narrow confines. My Lord of course has looked at this case in the context of disclosure within specific public authorities for very specific purposes involving general disclosure to the public at large.
My Lord, we are dealing here with small schools in small communities and the protection that really matters is not only that the applicant himself would be classed as a vulnerable adult but also for the minors involved, because we are dealing with very small schools and very small communities where I would respectfully agree with what my Lord has indicated that if one names the police forces----
MR JUSTICE TURNER: I do not think you need worry about that so far as I am concerned because it is a very short trail.
MR CLARKE: We expected on the part of the press that regrettably what has happened in the publications after the last hearing, is that there was sufficient indication for the applicant to be virtually identified, that is unfortunate because the trail can be pursued if one names the respondents and names the local education authorities and that kind of thing. That is why we say that in this case, given the acutely sensitive nature of the unproven allegations in question, given the background of protection not only of the individual adult but of the children, we say it is appropriate for the Court to make this order balancing the public interest in knowing about important public issues against the rights of the individuals concerned.
My Lord the Applicant's position is we would invite the Court to continue the order in its present form. It is made under section 11 of the Contempt Order.
MR JUSTICE TURNER: This would involve substituting names in the text of the judgment?
MR CLARKE: My Lord, is right. The judgment itself of course can stand. It is really only reporting of the judgment, whether in the law reports or in the press reports. That is commonplace in cases involving children and, I think, one of the other cases that we looked at was ex parte A and a police force in the Midlands or an education authority in the Midlands----
MR JUSTICE TURNER: That was ex parte LM.
MR CLARKE: One gets this sort of thing in educational law reports and these law reports all the time, where initials and acronyms are used to prevent identification of the relevant parties and that some times where there is an appropriate need, as we say there is here, it goes beyond simply the Applicant himself or herself. My Lord, that is the Applicant's position on the reporting order.
MR JUSTICE TURNER: Yes, Mr Greatorex.
MR GREATOREX: My Lord, the First Respondent has no submission on that. We are happy with what the court decides.
MR GIFFIN: My Lord, there is nothing I wish to say on that unless there is anything your Lordship wishes us to say?
MR JUSTICE TURNER: If the order of anonymity is to be preserved, it seems to me appropriate that they should be identified with the letter B, C and D. In that way the counties will not as readily be identified as if K, G and W were used. There are, as I think at the moment, powerful reasons why anonymity should be preserved, but before I finally confirm the order, is there anything the press would like to say further?
MEMBER OF THE PRESS: I do not think so my Lord. You have our written application.
MR JUSTICE TURNER: I do indeed, and I am most grateful to you for it. I accept the apology that the reporting was inadvertent in the first place, but there are, especially in the light of the unproved allegations, powerful reasons of fairness why nothing should be published which will lead to the identity of this particular applicant.
MEMBER OF THE PRESS: My Lord, just a point of further clarification. Bearing in mind the earlier inadvertent publication, we are probably now in a situation where we are not going to be able to report the case at all.
MR JUSTICE TURNER: That would be unfortunate.
MEMBER OF THE PRESS: That is the situation. There is a cross-identification because of the earlier publication.
MR JUSTICE TURNER: It could be. I will hear from counsel further about that, but it does not seem to me necessarily that even the most zealous individual will pick up from the report of today's judgment and go back to three weeks ago and identify the police forces concerned and probably the least said about that the better. I would not anticipate that publication of the case in terms of anonymity that we have discussed will breach that order.
MR CLARKE: My Lord, I respectfully agree and certainly it is no part of the applicant's position to try and prevent reporting on his public interest. I should also say that we are not here -- we recognise that it was inadvertent and that is the end of it.
My Lord, other matters----
MR JUSTICE TURNER: Can we just deal with that. Are you satisfied with that?
MEMBER OF THE PRESS: Just one thing, my Lord. From our point of view if these matters be drawn to public attention at each hearing so that it is on the record and people in court understand the position straightaway because, I think it is right to say that at the previous hearing, there was no mention at all of the extent of the order in force.
MR JUSTICE TURNER: In the ordinary way the order is published, is it not, in the press room?
MEMBER OF THE PRESS: We pick up our cue from what appears in the cause list. If something appears by initial, then we know we cannot identify the individual, that is what we go for.
MR JUSTICE TURNER: I am grateful to you for that. It indicates that the listing authorities in this building should be alerted to any order of confidentiality that is made.
MEMBER OF THE PRESS: My Lord, the position in this case was that, in fact, the listing authorities were alerted, I believe it did appear under the initial S, but the parties were named, the police authorities were named.
MR JUSTICE TURNER: I have the listing here. It says the Queen on the application of A again C. It plainly would be a matter of necessity that the listing authorities in this building, when an order of anonymity has been made, should themselves respect that order. I think that is the short point and I will draw that to the attention of the listing authorities. I am most grateful to you.
MR CLARKE: My Lord, there are other matters.
MR JUSTICE TURNER: I expect there is going to be an application for costs before we get to other matters.
MR CLARKE: That is right. I will leave that to my learned friend to make.
MR AUDEN: My Lord, first of all, I would like to make an application for our costs in this matter. I believe that there may be an argument from my learned friend on that and it might be best to hear argument and I will then deal with that. I do have a summary assessment of costs, I can hand that up (same handed).
MR JUSTICE TURNER: Is there a dispute?
MR CLARKE: My Lord, there are two points. One is a matter of principle----
MR JUSTICE TURNER: That is another matter. As a matter of detailed assessment.
MR CLARKE: My learned friend Mr Giffin's clients put in a costs estimate in due time and we agree that. The First Respondent's assessment only reached us just before the court hearing this morning my Lord, so there appears to be noncompliance with the practice direction on this. That is a matter which the court can take into account. My only observations on quantum is that the First Respondent is -- we say, and it does seem to come out at the top end for a one day judicial review which normally comes out at about £10,000, this one is something like £13,000. My Lord, we do know that it is always invidious making these observations, but I have to do it.
MR JUSTICE TURNER: You think counsel's fee was excessive.
MR CLARKE: My Lord, I note the presence of junior counsel at the hearing, but it only charged for presence at the hearing.
My Lord, the skeleton argument was drafted by my learned friend, Mr Straker QC, himself. The junior was not involved in that preparation and was not involved at any stage, other than attendance at the hearing. As I say, I dislike quibbling with these points.
MR JUSTICE TURNER: I think we all have to be adult about it, because you are about to ask for leave to appeal. I have to be adult in the same way you do.
MR CLARKE: I have to say my Lord is entirely wrong.
MR JUSTICE TURNER: Yes, you do.
MR CLARKE: My Lord, we would quibble with the costs and say that an appropriate figure would be one that I say would -- certainly the junior at the hearing should not be allowed.
MR JUSTICE TURNER: You should take the junior out.
MR CLARKE: My Lord, I have no observations on the amounts. My learned friend Mr Giffin's comes in about £9,500 and we have no quibble with that.
MR JUSTICE TURNER: Do you want to argue junior counsel? It was a bit of a luxury. You were, in a sense, least in the line of fire.
MR AUDEN: My Lord, yes. This was a complex case. There were a number of issues that had to be dealt with shortly.
MR JUSTICE TURNER: It seemed to me that Mr Giffin was able to deal with them more than adequately.
MR AUDEN: Yes, my Lord, I do appreciate that the fees involved at the beginning -- it was a case in which quite a lot of research had to be done in preparation for it and that this case necessitated junior counsel for the final preparation and to attend. Again I say this was a complex case and there were issues to be dealt with shortly before the hearing after the drafting of the skeleton.
MR JUSTICE TURNER: It is not a proper case for junior counsel, otherwise the costs will be in the sum adjusted to take account of that ruling. Mr Clarke, you want leave to appeal?
MR CLARKE: My Lord, I do ask for permission to appeal and I do it for these reasons: the case raises issues of public importance and I would suggest that the argument that my Lord canvassed have indicated an emerging tension in the authorities between, on the one hand, the line of authority that my learned friend Mr Giffin placed reliance on, when we talk about the free exchange of information in the public interest and, on the other hand, the line of authorities which are illuminated by cases such as ex parte Thorpe and ex parte LM, where we see perhaps a slightly more restrictive approach.
MR JUSTICE TURNER: I found no tension between Thorpe and my decision, the only tension I found was between ex parte LM.
MR CLARKE: That was a further point. My Lord, that one has to (inaudible due to coughing) certain observations made by Dyson J. My Lord is entitled to do that. It is not a decision that binds, my Lord but----
MR JUSTICE TURNER: Comity requires that I should only disagree if I am convinced that I am right, that may be your difficulty.
MR CLARKE: Indeed, but what we say is that when one looks at -- I would say that there is some divergence of approach in, for example, the cases about consultancy index and cases involving police disclosures were all broadly within the same umbrella of the area of public law in dealing with disclosure in respect of noncontradiction information but in different contexts and there are some divergence of approach indicated by the various judicial opinions on the subject.
My Lord, in this particular case my Lord has decided not to agree with certain observations of Dyson J in another case which, on our submission, is a similar case and, for all these reasons----
MR JUSTICE TURNER: Of course, Dyson J's case was going to fail on the facts any way and on one approach what he said was, in old fashioned terms, obiter, not necessary to his decision.
MR CLARKE: Indeed. Of course, even if that had to be so, one heard different expressions of principle one from my Lord and one from Dyson J in respect of the same subject matter. Albeit that is----
MR JUSTICE TURNER: You say the Court of Appeal should be allowed to sort out the spat between judge's at first instance? You do not put it quite like that, but that is what you are saying.
MR CLARKE: There are, I would say, some identifiable differences of approach between different division of the Court of Appeal in respect of the different context of disclosure----
MR JUSTICE TURNER: What I have endeavoured to do in this judgment is to try to identify the circumstances in which the court can find a decision where procedural impropriety can be a factor or is a fact. In that narrow sense, I have decided this case on its own special facts.
MR CLARKE: What my Lord has done, if I read the judgment correctly, is it comes close to saying that the decision of the sort which is susceptible to judicial review and----
MR JUSTICE TURNER: It does say precisely that, but that is based on a factual analysis.
MR CLARKE: My Lord, if we are being adult about this, my Lord has diverged from the pressing need test established by Thorpe.
MR JUSTICE TURNER: No, we do not get that far on my analysis.
MR CLARKE: My Lord, on that analysis my Lord reads it as -- the matter was argued on behalf of the constabulary on the basis that they did make a decision, particularly D, a decision to disclose and my learned friend Mr Giffin, in particular, has accepted the Thorpe test and indeed LM. My learned friend would have accepted the relevant test as he said it passed the test.
If I read the judgment correctly, my Lord has adopted a slightly different angle on it than that put forward by my learned friend, Mr Giffin.
MR JUSTICE TURNER: I have and the judgment expressly recognises that with due diffidence, I may say.
MR CLARKE: My Lord, yes. With due diffidence I am satisfied----
MR JUSTICE TURNER: Diffidence ill becomes you, Mr Clarke.
MR CLARKE: My Lord, I will try. With respect, we say this is a matter, given the overall context of the public issues that are at stake, it should be looked at by the Court of Appeal and I would invite my Lord to take the step----
MR JUSTICE TURNER: If you are to persuade me you will have to encapsulate the point or points you wish to argue.
MR CLARKE: We wish to argue that what my Lord has done has failed to recognise that there was here a decision to disclose, in particular by D which should have been subject to the Thorpe and LM tests. My Lord decided there was really no decision here, which is a pressing need decision of the kind characterised in Thorpe and the LM case that my Lord has heard. We also say that my Lord, in so far as one looks at the exchange of information the authorities have erred by disagreeing with Dyson J's observation on that point in the LM case. We also say that when my Lord expressed a doubt as to whether procedural impropriety alone would justify a freestanding judicial review challenge here. My Lord has gone someway adrift, we would say, from Lord Diplock classic formulation in the GTUK (?) case. We put it that way----
MR JUSTICE TURNER: Despite the fact that I referred to it.
MR CLARKE: Yes, my Lord. We say this all in the context of issues undoubtedly of considerable public importance so that applying the modern approach to permission to appeal, we say there are good arguable points with prospects of success and some other compelling reason for the grant of permission, namely significant public importance of the issues in this case and the need to go to the Court of Appeal. We would say to tidy up the law as it developed on this subject in a number of different and particular statutory and regulatory contexts, not only the police but also medical services, consultative (inaudible) and all those sorts of things. There are an array of authorities now, and it is about time, we say, particularly in the light of the recent coming into force of the Human Rights Act to revisit this area and perhaps give some general guidance and value to all those public authorities operating in this difficult field. My Lord, that is my submission.
MR AUDEN: My Lord, as leave to appeal is concerned, we take the view that your Lordship gave a clear judgment in this case on which we need not trouble the Court of Appeal. There is no conflict with Thorpe and, as far as we are concerned, there is no conflict with the GCUK (?) case. This was an
error (?) case on the particular facts. Based on particular facts, this would be an inappropriate case to proceed to the Court of Appeal.
MR GIFFIN: I respectfully echo the point that although potentially there are some interesting theoretical questions this case is not a good vehicle. So far as the substance of my Lord's decision is concerned, my Lord has found in very robust terms that there was ample material justifying disclosure, not the slightest doubt of pressing need and clearly a most pressing need. The applicant's best point was the question of what procedure was followed, but the fact is that the information is now with Warwickshire and my clients have said that in relation to any future disclosure they would be minded to seek representations. So factually it is most unlikely that this Applicant is going to achieve anything.
MR JUSTICE TURNER: Even if he wins on the law, he looses on the facts.
MR GIFFIN: My Lord, quite so. If one is looking for a vehicle for clarification of the law, it may be, I respectfully submit, that a case where the disclosure occurred at a time when neither the current Data Protection Act nor the Human Rights Act was actually in force, it is unlikely to be the best vehicle for giving future guidance. My Lord, subject to those submissions, we leave the matter in your Lordship's hands.
MR JUSTICE TURNER: I refuse permission to appeal. The underlying facts in the case, even had I been in favour of the applicant on the point of law, would have meant that the case failed any way.
MR CLARKE: There is one other matter. When permission was granted both the respondents gave an undertaking to the court not to disclose any information about the Applicant until the determination of the substantive application for judicial review or further orders, unless they first give ten days notice to the applicant of any proposed disclosure, including the content thereof. An undertaking by both forces before Newman J when permission to move was granted.
My learned friend Mr Giffin has indicated, on behalf of the Second Respondent, that undertaking is continued pending application by my clients to the Court of Appeal for permission to appeal on the assumption, on our side's undertaking that we would submit that application and pursue it expeditiously, which we will do.
I would invite my learned friend Mr Auden for the First Respondent to indicate that that undertaking is forthcoming from the First Respondent. I believe he has taken instructions on that, but I do not know if he is able to indicate his position.
MR AUDEN: My Lord, I have contacted my instructed solicitor, who is not here this morning. I have not heard back from them. I do not anticipate any problem, but if it was possible to have a five minute adjournment so I can call them back to see if particular----
MR JUSTICE TURNER: No, because I am a member of another constituted court and I suspect this court is required by another constitution. The appropriate thing would be to grant you liberty to mention this matter to me at some point today when I become available.
MR CLARKE: I am content with that.
MR JUSTICE TURNER: At the present time, the undertaking on behalf of the Second Respondent which continue until leave is granted by the Court of Appeal, and if granted continued until determination of the appeal.
MR CLARKE: That was my friends understanding.
MR GIFFIN: My Lord, yes.
MR JUSTICE TURNER: It is an undertaking in those terms, Mr Auden which is sought from your clients.
MR AUDEN: Yes.
MR JUSTICE TURNER: It may be significant if you obtain their instructions and communicate that by document to me rather than we continue in open court.
MR AUDEN: I think that would be sensible. I will send a message to your clerk.
MR GIFFIN: I would formally ask your Lordship to make an order for costs in the agreed sum in my favour and I ask your Lordship to do that. It is £9,471.03 including VAT.
MR JUSTICE TURNER: What is the adjusted sum for the First Respondent? It is £1,250 plus VAT at 17.5% to be taken away from the figure of £13,111.23. That is the sum, whatever it is, in which I assess your costs.
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