England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST

		Royal Courts of Justice Strand London, WC2
		6th November 2002

1. MR JUSTICE MAURICE KAY: On 23rd January 1997 the claimant pleaded guilty to an offence of driving with excess alcohol pursuant to section 5(1) of the Road Traffic Act 1988. He was fined £150 and subjected to a one-year disqualification from driving. His licence was obligatorily endorsed under section 44 of the Road Traffic Offenders Act 1988.
2. The provisions of two different statutes impact on the future significance of such a conviction. The first of those statutes is the Road Traffic Offenders Act itself. If a person is convicted of a second similar offence within 10 years, then by section 34(3) there is a minimum disqualification period of three years. Related to that is section 45(7), which is to the effect that an endorsement of the disqualification remains in force and in being for a period of 11 years. The purpose of that is clearly so that, in the event of a further conviction for a similar offence within 10 years, allowing an extra year for disposal of the later case, the licence will reveal to the sentencing court the liability for the minimum three-year disqualification. There are also provisions imposing on a licence holder a duty to produce his licence to the court on pain of a criminal sanction -- that is in section 27.
3. The second statute is the Rehabilitation of Offenders Act 1974. By section 1, section 5 and Table A the net effect is that a conviction of the kind incurred by the claimant for which he was fined and disqualified becomes a spent conviction within the meaning of the Act after five years. Section 4 deals with certain effects of rehabilitation in that way. I shall return to it later.
4. The claimant has, since his conviction, trained and qualified as a heavy goods vehicle driver. His present complaint is that he cannot now find employment in that capacity because employers, probably under pressure from their insurers, require him to produce his licence and counterpart and, upon learning of the spent conviction, decline to employ him. That reference to licence and counterpart calls for a brief explanation.
5. Until quite recently the driving licence was a single paper document with a part for the insertion of endorsements. We are presently in a period of transition, by the end of which the paper driving licence will have disappeared and have been replaced by a plastic card licence bearing the photograph of the licensed person. It is that piece of plastic which is the driving licence standing alone. However, a person who has one of the new plastic licenses is also required to keep a counterpart, which is a piece of paper upon which endorsements are entered rather in the manner in which they were entered on the licence itself under the previous system.
6. The claimant's case is that he was entitled to the full benefits of the Rehabilitation of Offenders Act, but the provision in the Road Traffic Offenders Act which keeps his endorsement in being for six years beyond the end of the rehabilitation period, and prevents him from obtaining a clean licence during that time, prejudices him in a way which involves interference with his private life pursuant to Article 8 of the European Convention on Human Rights. If that is right, he contends for a construction of the Road Traffic Offenders Act in accordance with section 3 of the Human Rights Act 1998 in such a way as to avoid that prejudice or, alternatively, a declaration of incompatibility under section 4.
7. Article 8 is in the following terms:

"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.

8. The first authority is MS v Sweden [1999] 20 EHRR 313. That concerned a Swedish woman who made a claim for compensation under the Industrial Injury Insurance Act in Sweden. She subsequently discovered that in response to a request for her records from the relevant period by the social insurance office, and without consulting her, a clinic which she had attended had supplied copies of records dating from up to five years following the accident, which included details of an abortion she had had as a result of a back problem. It was that disclosure which she alleged interfered with her private life and contravened Article 8.
9. The relevant part of the judgment is to be found in paragraph 35 of the judgment. It is in the following terms:

"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."

10. The second authority is Niemietz v Germany (1993) 16 EHRR 97. The applicant in that case was a lawyer whose offices had been searched by the German police pursuant to a search warrant issued by the Munich District Court. The warrant ordered the search in order to obtain information which would reveal the identity and possible whereabouts of a third party who was the subject of criminal investigation. In considering whether there had been interference with the applicant's private life, the court said in paragraph 29:

"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."

11. Mr Squires submits that the circumstances of the present case fall within principles that were expounded in those authorities. The claimant is seeking to develop a relationship -- one of employment -- in the outside world, but is meeting interference as a result of the disclosure of personal data which are apparent from the continuing endorsement, notwithstanding that the conviction which gave rise to it is spent under the Rehabilitation of Offenders Act.
12. On behalf of the DVLA and the Secretary of State Mr Lewis submits, first, that the facts of the present case call for a more rigorous analysis. Neither defendant has disclosed data of a personal nature to anyone and would not do so without that person's consent. What has happened is that the claimant, having decided upon a change of career, has applied for employment as a heavy good vehicle driver and, upon request from prospective employers, he has disclosed the endorsement which is apparent on the counterpart of his licence. The disclosure is with the claimant's consent. Indeed, it is disclosure by the claimant himself. Second, it is submitted that the Strasbourg authorities relied upon by the claimant go nowhere near as far as is suggested. This is apparent not only from the reasoning, but also from the facts of the cases. What was in issue in MS and Niemietz was manifest interference with private life. MS concerned personal material of extreme confidentiality, which is not the case here, not least because the claimant's conviction is a matter of public record. Moreover, in Niemietz the issue was whether the protection of Article 8(1) extended to a person's professional, as opposed to private, life.
13. These rival submissions then focus on a more recent domestic authority, namely, R v A Local Authority in the Midlands ex parte LM [2000] 1 FCR 736. The claimant in that case had in the past had allegations of sexual abuse made against him, but no further action had been taken. More recently, during the course of an acrimonious divorce, his wife had alleged that he had sexually abused their daughter, but, again, no further action was taken. At all times he had denied those allegations. It was decided to place the name of the family on the Child Protection Register. Some time after that the applicant set up his own bus company, and in 1995 he entered into a contract with the local authority's Education Department to provide school bus services. When the Education Department learned of the history it terminated the contract. In July 1997 the applicant's bus company entered into another contract with a second local authority to provide school bus services, and they also offered him a voluntary teaching post in archery. Whilst that second local authority had yet to begin its enquiries, the applicant wrote to the local authority and the police seeking assurances that if any inquiries were received from the second local authority no information regarding the allegations of sexual abuse would be disclosed. The respondents refused to give those assurances and that is what became the subject of the challenge in the court.
14. In the course of his judgment Dyson J referred to two preliminary points taken by counsel on behalf of the local authority and the police. He said at pages 744 to 745:

"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."

15. Mr Squires submits that the case of LM bears similarity to the present case. He relies on what Dyson J refers to as "a realistic view of the facts", whereby a person seeking to obtain or retain an employment or business relationship can only do so by acquiescing in disclosure of personal data, it being immaterial whether that disclosure is by himself or by someone else but with his permission. I have not found this to be an easy issue to resolve. However, I have come to the conclusion that, notwithstanding the cogency of Mr Squires' submissions, the authorities, both in Strasbourg and the domestic one, do not address circumstances such as those in the present case. Not only is the information in the present case of a very different nature from that in MS and LM, it is information which came into the public domain on the claimant's conviction. Whilst the Rehabilitation of Offenders Act confers certain privileges on the claimant, that does not necessarily mean that the continuation of the endorsement beyond the period of rehabilitation is an interference with his private life within the meaning of Article 8(1). In my judgment it is not, and it would take a sizeable extension of legal principle and its application to make it so. The right upon which the claimant relies is in fact a limited privilege, provided not under the Convention but by domestic legislation. The fact that the limitation under domestic law could have been formulated more generously does not mean that the privilege in its statutory form and in its relationship to other legislation, including the Road Traffic Offenders Act, is such that the adverse consequences of other legislation, in this case the continuation of the endorsement beyond the end of the rehabilitation period, amounts to an interference with the Convention rights enshrined in Article 8. I am satisfied, therefore, that the circumstances of the present case do not engage Article 8(1).
16. The claimant having failed to establish an engagement of Article 8(1), it is not strictly necessary for me to consider the question of justification under Article 8(2). But lest I am wrong about Article 8(1), and in deference to the excellent arguments of counsel, I shall deal with it.
17. It is, of course, common ground that if there was an interference with private life it was "in accordance with the law", namely the Road Traffic Offenders Act. The question becomes: was it "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"?
18. A useful starting point is to be found in the case of Z v Finland [1997] 25 EHRR 371 at paragraph 94:

"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."

19. In The Sunday Times v The United Kingdom [1980] 2 EHRR 245 further useful guidance was given as to what is "necessary" in a democratic society. The court said at paragraph 59:

"... 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'."

20. As to the question of proportionality, I have well in mind the speech of Lord Steyn in Regina (Daly) v Secretary of State for the Home Department [2001] 2 WLR 162, at paragraphs 24 to 28, including his adoption of the three criteria articulated by Lord Clyde in de Freitas v Permanent Secretary of Nursery and Agriculture [1999] 1 AC 69 at page 80, the three criteria being:

"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."

21. The evidence about justification is to be found in the witness statement of Mr Robert Toft of the DVLA. He states:

"... 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."

22. Mr Toft also states that the system is kept under review in part to observe the fair balancing of the conflicting interests at stake. It is apparent from that evidence that the sole purpose relied upon is in relation to the future sentencing of repeat offenders.
23. Taking that as his starting point, Mr Lewis makes a number of submissions to the effect that the statutory provisions and their operation are indeed justifiable. He submits that the interference with private life, if such there be, is minimal and only relates to particulars of conviction for one offence for a limited period; that is so long as the conviction remained relevant to sentencing. The endorsement does not affect the existing employment of the claimant. Nor would it affect any other employment prospect, save as a professional driver. Even then, there are safeguards to ensure respect for the interests of the endorsed licence holder. The safeguards include those found in section 4 of the Rehabilitation of Offenders Act. Section 4(2) provides that:

"... 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."

24. Mr Lewis places particular emphasis on that section 4(3)(b). (I add that the provisions of section 4 are subject to certain exceptions which are provided for in the public interest, but they have no application to the present case or circumstance.)
25. It follows from those provisions, and particularly section 4(3)(b), that a jobseeker with a spent motoring conviction, but a continuing endorsement on his licence in relation to it, cannot lawfully be discriminated against in relation to dismissal or exclusion from employment; and, as Mr Lewis puts it, Parliament is entitled to assume that prospective employers would not wish to act unlawfully and would not wish to run the risk of claims for compensation from unsuccessful job applicants. These, he suggests, are important safeguards, highly material to the determination of whether the system as a whole strikes a fair balance between the claimant's interests and the interests of the public at large. Further, he observes that drink driving is a serious offence, with obvious risks to the public, and there is a public interest in ensuring that the sentencing system designed to punish and deter such activities is effectively enforced.
26. He then submits that it is of particular relevance that what is in issue here -- the source of the alleged interference -- is in fact something enshrined in a statute, and he points to the observation of Lord Bingham of Cornhill in McIntosh v Lord Advocate [2001] 3 WLR 107 at paragraph 36 to the effect that, where such a scheme is contained in a statute, it is "approved by a democratically elected Parliament and should not be at all readily rejected": see also R v DPP ex parte Kebiline [2000] 2 AC 326 at 380 to 381 per Lord Hope of Craighead and Poplar Housing Association v Donoghue [2001] 3 WLR at page 203.
27. Finally, Mr Lewis relies on the fact exposed by the evidence that the system is kept under review to ensure that it remains necessary and to ensure that the balance that has been struck remains fair and appropriate.
28. Although this is not a case within a context of socio-economic policy in the large sense, it is one in which Parliament has considered what is appropriate to provide an effective and efficient system for the provision of sentencing information in relation to a serious criminal offence, in particular a repeat offence within a prescribed period. In my judgment Mr Lewis is correct in his submission that if there is interference, it is minimal. Not only does it have temporal limitation from the end of the rehabilitation period to the 11th anniversary of the conviction, it will arise only in particular and contingent circumstances in relation to which a statutory safeguard is provided in the form of section 4 of the Rehabilitation of Offenders Act. The disadvantages of which the claimant complains cannot lawfully be imposed on him. If particular employers, at the behest of insurers or otherwise, are contravening or ignoring section 4, that cannot, in effect, defeat justification for the continuing endorsement for sentencing reasons pursuant to the Road Traffic Offenders Act. I agree with Mr Lewis that such employers would not be acting in a sanction vacuum. I see no reason why, if he had any evidence, a rehabilitated drink driver who is refused a driving job simply by reason of his spent conviction should not be able to maintain an action for breach of statutory duty.
29. Mr Squires suggests that the survival of the endorsement beyond the end of the limitation period has no purpose other than "administrative convenience". That has become something of a pejorative term. The purpose is to enhance the efficiency and effectiveness of sentencing in respect of repeat offences of a specific and serious kind in circumstances where the evidence establishes that the alternatives would be more costly and less reliable.
30. For all these reasons, I am satisfied that even if Article 8(1) is engaged in this case, the interference is justified under Article 8(2).
31. MR LEWIS: Could I then ask for an order dismissing the claim and also an order for costs, not to be enforced without the leave of the court. I understand my learned friend's client is legally aided.
32. MR JUSTICE MAURICE KAY: You agree to both those orders.
33. MR SQUIRES: Yes, my Lord.
34. MR JUSTICE MAURICE KAY: The wording in relation to the rider on costs ought to be the one more recently approved, not to be enforced without leave. What is the actual wording?
35. THE ASSOCIATE: Determination of the liability postponed until further--.
36. MR JUSTICE MAURICE KAY: Yes. It makes no difference, but we had better have the more recent wording.
37. MR SQUIRES: My Lord, as has been mentioned, my client is publicly funded. I ask for an assessment.
38. MR JUSTICE MAURICE KAY: Yes, certainly.
39. MR SQUIRES: My Lord, I also ask for permission to appeal to the Court of Appeal. As I mentioned, my Lord, the Article 8(1) point is not an easy issue and has considerable wider significance in relation to what can and cannot be put on documents and when it is and is not an interference when someone in the position of the claimant is required to produce documents.
40. MR JUSTICE MAURICE KAY: Well, Article 8(2) is not, in my view, as difficult. Article 8(2) is not difficult, and what I have decided is that, even if there is interference, it is justified. Do you have an arguable ground of appeal in relation to that? Because you would need it, would you not? There would be no point in permitting you to appeal on ground one, an interesting point though it is, if in reality it is an unappealable finding, unless you can justify it.
41. MR SQUIRES: Yes. In relation to the arguability -- I will not repeat the arguments that were raised before, but I only again state that this too raises issues of public import in relation to the role of deference to Parliament in relation to human rights issues and because it is a much wider question of necessity and how that relates to administrative convenience, which we submit is once removed from those factors that justify interference if it were to be found to exist.
42. MR JUSTICE MAURICE KAY: Mr Lewis, what do you say?
43. MR LEWIS: Well, my Lord, the question is whether Mr Pearson in his case would have a realistic prospect of success. It is not for this court to invite the Court of Appeal to engage in interesting hypothetical questions. We say there would be no realistic prospect of success in the light of your Lordships judgment.
44. MR JUSTICE MAURICE KAY: Yes. Mr Squires that reflects my view. Interesting though Article 8(1) is and difficult as it is, it seems to me that the claimant does not have any prospect of success, and I do not think there is any other compelling reason just because 8(1) is interesting if, as I believe, the appeal fails on 8(2). Of course, if you feel strongly about the subject you can seek your remedy in the Court of Appeal.
45. MR SQUIRES: I am obliged, my Lord.
46. MR JUSTICE MAURICE KAY: Thank you both very much.
(The Court Adjourned)