QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST
B e f o r e :
|THE QUEEN ON THE APPLICATION OF NIGEL PEARSON||Claimant|
|DRIVING AND VEHICLE LICENSING AGENCY||First Defendant|
|SECRETARY OF STATE FOR THE DEPARTMENT OF TRANSPORT, LOCAL GOVERNMENT AND THE REGIONS||Second Defendant|
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MR CLIVE LEWIS (instructed by Treasury Solicitors, Queen Anne's Chambers, London SW1h 9JS) appeared on behalf of the Defendants.
Crown Copyright ©
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. 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."
At first sight it is not obvious that the ambit of "private life" might be considered to extend to circumstances such as the present case. However, on behalf of the claimant Mr Squires submits that it does, and he relies on certain authority.
"The Court notes that the medical records in question contained highly personal and sensitive data about the applicant, including information relating to an abortion. Although the records remained confidential, they had been disclosed to another public authority and therefore to a wider circle of public servants. Moreover, whilst the information had been collected and stored at the clinic in connection with medical treatment, its subsequent communication had served a different purpose, namely to enable the Office to examine her compensation claim. It did not follow from the fact that she had sought treatment at the clinic that she would consent to the data being disclosed to the Office. Having regard to these considerations, the Court finds that the disclosure of the data by the clinic to the Office entailed an interference with the applicant's right to respect for private life guaranteed by paragraph 1 of Article 8."
"The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of `private life'. However, it would be too restrictive to limit the notion to an `inner circle' in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.
There appears, furthermore, to be no reason of principle why this understanding of the notion of `private life' should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world. This view is supported by the fact that, as was rightly pointed out by the Commission, it is not always possible to distinguish clearly which of an individual's activities form part of his professional or business life and which do not. Thus, especially in the case of a person exercising a liberal profession, his work in that context may form part and parcel of his life to such a degree that it becomes impossible to know in what capacity he is acting at a given moment of time.
To deny the protection of Article 8 on the ground that the measure complained of related only to professional activities -- as the Government suggested should be done in the present case -- could moreover lead to an inequality of treatment, in that such protection would remain available to a person whose professional and non-professional activities were so intermingled that there was no means of distinguishing between them."
"First, he submits that art 8 of the European Convention for the Protection of Human Rights ... and the jurisprudence as to the requirement for a `pressing need' to justify disclosure of information about a person's private life, are of no application in the present case. This, he argues, is because the disclosure of the allegations against LM would not interfere with his private life at all. He submits that the point of impact of the allegations is not his private life but his employability. I disagree. This argument confuses the nature of the interference with the consequences of the interference. The disclosure, if made, would obviously interfere with his right to a private life. One of the consequences of that interference would be likely to be to damage his employment prospects.
[The second] preliminary point is that, if disclosure were to interfere with his right to privacy, LM could not complain because the disclosure would be as a result of his signing the Form X and authorising Z County Council to carry out a police check. But, by signing the form, LM would not be signifying his willingness to agree to the disclosure of the allegations. He understands that if he does not sign the form, his company's contract will be terminated, and he is unlikely to obtain the archery teaching post. In my judgment, on a realistic view of the facts, if LM were to sign the form, he would not be consenting to the interference with his private life that the disclosure of the allegations would entail."
"In determining whether the impugned measures were necessary in a democratic society', the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient and whether the measures were proportionate to the legitimate aims pursued."
"... whilst the adjective necessary' ... is not synonymous with `indispensable', neither has it the flexibility of such expressions as `admissible', `ordinary', `useful', `reasonable' or `desirable' and that it implies the existence of a `pressing social need'."
"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."
"... the endorsement remains relevant for sentencing purposes for 10 years. It is accepted that the conviction is spent for other purposes. Under section 4(3)(b) of the ROA a conviction which has become spent (in this case after 5 years), '...shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing him in any way in any occupation or employment.' There is therefore a balance struck between ensuring ready access by the court to accurate information relevant for sentencing purposes and ensuring that a person convicted of such an offence has his interest safeguarded. The legislation reflects the view that maintaining the endorsement on the licence is necessary to ensure ready access to accurate information on the part of the sentencing court and is also proportionate as the legislative framework taken as a whole safeguards the interests of those convicted.
Where a driver is convicted of a motoring offence requiring endorsement of the driving licence, the licence is endorsed and details of the conviction used to update the individual's record held by the DVLA. The courts do not uniformly have electronic access to the DVLA database as two major centres, Inner London and Kent to not have such links at present.
Courts can make paper applications for DVLA information. This would cause delay and the courts would not be able to deal with sentencing immediately, as they could when they rely on the licence. Furthermore, if courts did routinely make paper applications, it would reduce the speed and effectiveness of responses by DVLA.
Against that background the legislation for providing for endorsements to be maintained on the counterpart licence ensures accurate information, relevant to sentencing, is readily available to the sentencing court."
"... 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."
Subsection (3) then provides that:
"(a) any obligation imposed on any person by any rule of law or by the provision of any agreement or arrangement to disclose any matters to any other person shall not extent to requiring him to disclose a spent conviction or any circumstance ancillary to a spent conviction (whether the conviction is his own or another's); and
(b) a conviction which has become spent or any circumstances ancillary thereto, or any failure to disclose a spent conviction or any such circumstances, shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing him in any way in any occupation or employment."