England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		7th March 2007

1. MR JUSTICE LLOYD JONES: This is an application for permission to apply for judicial review. The claimant seeks permission to challenge a decision by B County Council ("the Council") taken on 26th September 2006 not to permit its education transport contractors to use the claimant as a sub-contractor driver in the performance of education transport contracts. On 24th January 2007 Forbes J directed that the matter be listed for oral hearing of the permission application with the substantive hearing to follow immediately if granted. He also granted expedition and made directions.
2. The Council provides home to school transport for some 25,000 pupils a day in accordance with its responsibilities under the Education Act. About 60 per cent of these pupils attend mainstream schools. The balance attend special needs schools for children with learning difficulties and/or physical disabilities. The Council has a large number of contracts with companies and firms for the provision of this education transport. The conditions of contract are the same for all contractors. The conditions which applied for non-PSV vehicles from December 1994 until 2006 included the following:

"2.5 The contractor must not under any circumstances employ a driver for the operation of the contract who has any unspent criminal convictions involving violence, or offences to children. All known criminal convictions must be notified to the Council and will be considered in strict confidence . . .

2.7 The Council shall be entitled to object to the employment of any driver, on a school contract, whose conduct is considered by the Council to be inappropriate. This may include conduct inappropriate having regard to the age and number of children to be conveyed and any physical/learning difficulties they may have, or incidents of a racial or sexual nature."

Similar conditions appear in the arrangements in relation to PSV vehicles, and these provisions also make specific provision for "escorts". These are appointed by the Council and their responsibility is the supervision and care of the children on the vehicle.

3. In August 2006 the Council changed its conditions. Its new conditions include paragraph 6.1.4 which provides:

"The contractor shall on the request of the Council remove from any or all contracts, any or all of its personnel that the Council deems unsuitable to perform the service. The Council's primary consideration in such cases is the safety and well-being of passengers."

While some companies and firms engage employees to perform their contracts, others subcontract to independent contractors in order to meet their contractual obligations. Following an incident involving such a driver, from 2003 the Council required its transport contractors to check the suitability of any new driver by relying on enhanced disclosure from the Criminal Records Bureau ("CRB"). In April 2005 the Council advised its education transport contractors that it now required that all drivers (that is, not just those taken on after 2003) used by contractors in contracts with the Council to transport children and vulnerable adults should be CRB checked.

4. The claimant was born on 27th November 1959. She holds a combined hackney carriage and private hire driver's licence which was issued by a District Council. Between 1999 and 2005 she had been a self-employed driver working for a firm providing education transport to the Council. It had a contract with the defendant to transport children with special educational needs on a daily basis to two schools in another county where the defendant had placed them. The claimant became involved in this work after her own daughter with special needs mentioned the fact that the existing driver was leaving.
5. The claimant, in the course of this work, drove a minibus with wheelchair access, usually carrying between four and six children. Another individual worked as the escort on the minibus. It is accepted that there were never any complaints concerning the manner in which the claimant performed her duties.
6. In 2005 the claimant decided to change the firm for which she provided her driving services. The new firm advised her that the CRB procedure would need to be complied with, and accordingly an application under the CRB procedure was duly made. This disclosed that the claimant has a number of criminal convictions. These fall into three groups.
7. The first group of convictions contains convictions for offences for which she was sentenced on 2nd February 1976 before a Juvenile Court. On that occasion the offences were four offences of threats to kill. The sentence in each case was a Supervision Order of 2 years concurrent. Threats to kill were contained in four letters sent to a teacher at the school at which the claimant was then a pupil. I have seen the letters. They are very frightening and disturbing.
8. The background to these offences is apparent from the Social Services file which was obtained by the Council with the consent of the claimant during the course of the Council investigation into the claimant's application. This records that the claimant had been involved in several incidents concerning the use of weapons -- guns, an air pistol, a shotgun and knives -- that she had been involved in stalking teachers, setting fire to a room at her home, severely damaging it to the extent that the fire brigade was called, false imprisonment, sending threatening letters, threats to kill and criminal damage. It revealed that on two occasions she had returned to the school from which she had been excluded, rejoined her old class and, as the file put it, "had a go at her old teacher". She pointed a knife at the teacher and slashed the teacher's tyres. She had also attempted to strangle the teacher.
9. The second group of offences resulted in convictions on 19th May 1976. This time the matters were before the Crown Court and were considerably more serious. She was convicted of having a firearm with intent to commit an indictable offence contrary to section 18(1) of the Firearms Act 1968, possessing a firearm while committing an offence contrary to section 17(2) of the Firearms Act 1968, and using a firearm to resist arrest contrary to section 17(1) of the Firearms Act 1968. On the third count, that of using a firearm to resist arrest, she was sentenced to 7 years' detention pursuant to section 53(2) of the Children and Young Persons Act 1953. No separate penalty was imposed on the other counts.
10. The information on the Social Services file reveals that following her suspension from school as a result of sending death threats to the teacher, the claimant had returned to the school bearing a loaded shotgun together with a quantity of rounds (12 in total). She had gone into the classroom where the teacher (who had been the subject of the threats to kill) was present and put that teacher in fear of her life. She then falsely imprisoned over 20 pupils who were present. When the teacher fled and locked herself into the adjoining preparation room, she took a pupil and held a gun to the pupil's head in an attempt to force the teacher to leave the preparation room. Despite requests from other teachers and the police, she still held hostage other pupils, who were 32 in number. When the police overpowered her, the shotgun was discharged into the ceiling; the falling debris slightly injured a child in the room. After she was overpowered by the police she tried to escape but was recaptured.
11. The Council made further enquiries from the members of staff at the school in relation to the incident. They were informed that the offence was a personal vendetta conducted against this particular teacher by the claimant. The incident had lasted some hours and, until the police decided to rush in and overpower her, showed no prospect of ending peaceably.
12. The third group of offences resulted in convictions in the Crown Court on 17th May 1977. The offences were two counts of false imprisonment and one count of wounding contrary to section 20 of the Offences Against the Person Act 1861. The sentence in each case was a Hospital Order made pursuant to sections 60 and 65 of the Mental Health Act 1959. I am grateful to Mr Giffin QC who has identified the criteria for the making of an order under that statute. The judge was required to be satisfied that the claimant was suffering from a psychopathic disorder as defined in section 4 of the Act to a nature or degree that warranted detention in hospital for treatment.
13. The circumstances giving rise to those offences were that while the claimant was detained in Borstal, where she was placed in the psychotherapeutic unit, she was involved in an escape attempt during which she carried a knife. A prison officer was slightly wounded whilst disarming the claimant. That resulted in the imposition of the Hospital Order. There is no official record of the sentencing remarks in the papers but the sentencing judge is reported as having said that on the basis of medical evidence he was satisfied that the claimant needed treatment in her own interests and in the interests of society.
14. These were clearly very serious and dangerous offences, and Mr Giffin, who has appeared on behalf of the claimant, has not sought in any way to minimise them. However, it is clear that since the age of 21 the claimant has not only kept out of trouble in the sense that she has not committed any further criminal offences, but she has made a good life for herself. It is not suggested, and there is no evidence, that she has suffered any further difficulties with her mental health. The Council's own analysis refers to her having led a blameless life since May 1977. As an adult she has married and brought up two children, now aged 20 and 19, one of whom has special educational needs. She obtained employment shortly after her discharge from prison and she has held a number of responsible jobs since then, including working as an auxiliary nurse and a childminder, without incident or complaint.
15. In about March 2006 the Council advised that the claimant had been assessed under the CRB procedure as not being suitable. In April 2006 the claimant appealed against this assessment and sent to the Council various documents in support of her appeal. By letter dated 21st August 2006 the Council confirmed that the claimant would not be permitted to be used as a driver in the performance of education transport contracts with them.
16. She was advised of a further right of review. She invoked that by letter dated 28th August 2006. With that letter she sent a statement explaining her past conduct. On that occasion the Citizens Advice Bureau assisted her and made submissions on her behalf. A senior legal officer within the Council was then charged with reviewing the papers and preparing a report for the Head of Corporate and Legal Services. Under cover of a minute dated September 2006, the senior legal officer provided his report. He recommended that the claimant should not be permitted to be used as a driver in education transport contracts with the Council.
17. By letter dated 26th September 2006 from the Head of Corporate and Legal Services to the claimant, the Council advised the claimant that she would not be permitted to be used as a driver in educational transport contracts with the Council, and in that letter the Council set out its reasons. It reads as follows:

"I understand that you wish the County Council to review the decision of the Passenger Transport section that you should not be permitted to drive on school passenger transport contracts.

As the work of a contract driver involves substantial opportunity for access to children the County Council has a balancing act; it must have regard to its overriding duty to protect children but it also operates an equal opportunities policy which seeks to prevent unfair discrimination against workers with criminal records.

As I am sure you are aware, [B] County Council meets the requirements for exemptions under the Rehabilitation of Offenders Act 1974. However, in determining suitability for drivers working on school contracts the County Council seeks to adhere to the Code of Practice and guidance produced by the Criminal Records Bureau which takes into account:

• The nature of the offence.

• Whether the conviction is relevant to the position in question.

• The seriousness of any offence revealed.

• The length of time since the offence occurred.

• Whether there is a pattern of offending behaviour.

• Any other relevant factors.

In your case all of the above matters were taken into account and a decision was reached by the department that you would not be deemed suitable to work on school contracts as in the normal course of your duties you would have the opportunity for unsupervised access to children. Although information of this kind would not necessarily preclude you from driving on school contracts, the County Council had to take into account the following factors:-

• The date of the allegations.

• The nature of the allegations.

• The fact that there was more than one allegation.

• The fact that you have several weapons and school related convictions which resulted in various penalties including imprisonment being imposed by the court. In the course of these offences you put both a teacher and pupils in fear of their lives.

• The fact that whilst in Borstal you led an attempted escape and in doing so committed further weapons related offences, in the course of this escape you also injured a prison officer, which necessitated hospital treatment. As a result of this incident, the court made a hospitalisation order in respect of yourself.

In considering the above factors the risk of harm to children was regarded as high, and a decision was made that you would not be deemed suitable to work on school contracts. It was considered that the risk to children, since your last offence, was still significantly such that the County Council would be failing in its duty if it did not preclude you from working on school contracts where you would have unsupervised access to children.

Having considered the decision made by the Environment Department, I would advise you that I considered the original decision made by the department was appropriate and it was a decision for which the department was entitled to use its discretion.

However, I have reconsidered this decision, and in doing so, have taken into account the mitigation proffered in your letter, and also (with your written permission) your Social Services file. My decision is that the decision of the Environment Department should not be overturned. In reaching this decision I am mindful of the fact that any approval would allow you unsupervised access to children. In view of the type and seriousness of your past convictions such unsupervised access would, despite the passage of time, be a risk that the County Council is not prepared to take. One of the factors which has also been considered in reaching my decision is as to whether or not it would be possible to offer some form of supervision for a limited period of time. I have considered this and regret to say that having due regard to the nature and circumstances of your convictions, it is not possible to even offer this to you.

Accordingly, I am therefore not in a position to approve you for working on school contracts.

Whilst I appreciate your position, I do not accept that the County Council's decision is such that it should deprive (in view of what is stated above) you of a livelihood. Should any company wish to retain you limited to those routes which serve routes other than those on school contracts they will no doubt wish to undertake their own risk assessments in relation to passengers (including school children) using these routes."

18. Mr Giffin submits that the claimant has been rehabilitated with complete success. She has had no problems with the law, she has held down responsible employment, she has brought up children of her own, and she has acted as a representative of her community. Nevertheless, he says that the Council has decided that she cannot be trusted to go on doing the very work that she has already done in an unexceptional manner for six years.
19. Against that background, he submits: first, that the Council's decision is irrational or disproportionate; secondly, that Article 8 of the European Convention on Human Rights is engaged and that the Council's response was disproportionate -- in particular he says that there was no pressing need for the decision in question; thirdly, it is said that the Council's reasoning process in making its decision was flawed; fourthly, he says by way of alternative that the Council's decision was expressly predicated on the proposition that approval would permit the claimant to have unsupervised access to children, however the work she has done for the Council has always involved working with an escort; fifthly, he says that in so far as the claimant would be working with an escort, the Council was wrong to have regard to those of the claimant's convictions which are spent convictions by reason of the Rehabilitation of Offenders Act 1974.
20. Before turning to address each of those matters in detail it is necessary to consider a preliminary point taken by Mr Coppel on behalf of the Council. That is the question of whether this dispute and of the decision of the Council are subject to judicial review. The Council maintains that it is exercising a contractual power in relation to its contractor, the transport company, in order to control who carries out the duties and that it is, accordingly, not amenable to judicial review in this regard. It is, it says, a matter for the Council.
21. The claimant submits that the issue between the claimant and the defendant is amenable to judicial review and puts it on the following alternative bases. First, it says that in deciding the claimant should not be permitted to drive on its school passenger contracts the Council was exercising a function regulated by section 17 of the Local Government Act 1988 because a contract for the supply of school transport services is a public supply contract within the meaning of section 17(3) of that Act. Further, it is submitted that in relation to a subsisting public supply contract, giving or withholding approval for persons to be sub-contractors for the purposes of the contract falls within section 17(4)(c)(i) of the Act. The claimant says that as a self-employed driver the claimant would have been such a sub-contractor in relation to the undertaking which was subject to the transport contract with the Council.
22. The Council submits that section 17 prohibits very specific conditions in the procurement policies of public authorities and that its provisions do not preclude a public authority from requiring that the drivers used by the contractors in providing its services to the public authority are fit for purpose. To my mind there is considerable force in this submission. In Matra Communication SAS v The Home Office [1999] 3 AER 562 Buxton LJ observed at pages 574-5 that Part II of the 1988 Act has limited objectives in that it prohibits very specific conditions in the procurement policy of public authorities. It merely prohibits certain specific conditions from being included in invitations to tender that are otherwise not regulated by it at all. The present case is not concerned with the specific statutory duties under Part II of the Local Government Act 1988. In particular, it is not suggested that the Council has had regard to any non-commercial matters contrary to section 17.
23. However, the claimant is able to derive some assistance from the statutory scheme to this extent. First, section 19(9) contemplates the availability of judicial review for reasons other than a breach of the obligation under section 17. However, it does not indicate in what circumstances that remedy might be available. Secondly, the duty to give reasons imposed by section 20 is not limited to giving reasons for breach of duty under section 17. The point is made that the duty to give reasons provides some support for the availability of judicial review.
24. Of greater significance, to my mind, is the fact that the claimant was also able to point to authorities in which the decisions of local authorities to strike firms off approved lists of contractors were held to be susceptible to public law challenges on the grounds of unfairness, legitimate expectation, and (possibly) irrationality. In R v Enfield London Borough ex parte Unwin Ltd (1989) Admin LR 51 the Queens Bench Divisional Court appears to have assumed that this was the case. It held that where a contractor had been on an authority's list for a long time, without previous complaints having been made to justify its removal from the list, the contractor would have a legitimate expectation of fair treatment over and above the specific provisions as to the giving of reasons contained in section 20 of the 1988 Act. Glidewell LJ also suggested at page 63 of the report, without deciding the point, that such a decision would be open to challenge on the grounds of irrationality.
25. In R v Bristol City Council ex parte Barrett, unreported (CO/4181/1999), the local authority had removed the applicant's name from a number of lists of contractors which the Council maintained. The applicant brought proceedings for judicial review. The defendant authority resisted on the grounds that its decision to exclude the applicant was not amenable to judicial review and that it was taken on proper commercial grounds and for sound reasons. Jackson J considered that the Enfield case illuminates the principles which this court should apply when considering the legality of a local authority's decision to exclude contractors from an approved list of tenderers. He rejected the submission on behalf of the defendant that it was immune from judicial review. He further rejected the submission that the decision in Unwin should be confined to the first ground on which it was based -- namely the breach of section 20 -- and that the discussion of fairness and legitimate expectation was obiter and wrong. Jackson J concluded:

"I am afraid that I do not agree. What Glidewell LJ said about fairness and legitimate expectation forms part of the ratio of the decision in ex parte Unwin. It is binding on me and I must follow it. See R v Manchester Coroner ex parte Tal [1985] QB 67 at 81 D-E. Furthermore, as a matter of general principle, a decision by a local authority to strike a contractor off an approved list of tenderers does contain a public law element. This view is reinforced by the provisions of section 19 of the Local Government Act 1988 which contemplates the possibility of judicial review in respect of such decisions."

Jackson J went on to make an order quashing the Council's decision on public law grounds. He considered that the reasons advanced by the Council did not stand up to scrutiny. I agree with Jackson J that Unwin is binding on this court.

26. In the present case we are concerned with the position of a sub-contractor. Furthermore, the Council does have a contractual power to direct the contractor as to which sub-contractors he will use. It is also suggested on behalf of the Council that we are here concerned with the termination of an existing contractual arrangement and not with the administration of a system under which contracts may be let in the future, although this is far from clear on the evidence. Nevertheless, I do not consider that these features serve to distinguish the present case from Unwin or Bennett.
27. Mr Coppel has relied on a decision of the Court of Appeal in Hampshire County Council v Supportways Community Services Ltd [2006] EWCA Civ 1035. In that case the claimant was aggrieved at the manner in which the Council had conducted a review for which express provision was made in a contract between the Council and the claimant. It brought parallel claims in breach of contract and judicial review. The Court of Appeal, having rejected the private law claim, concluded that this was essentially a matter of private law and not public law. In that case the only duty owed to the claimant was the contractual duty. The Council's public law duty was owed to the Secretary of State. Factually, the situation under consideration in that case was remote from the present case. By contrast, I consider that Unwin and Bennett are directly in point. The issue here is whether the claimant should be an approved sub-contractor.
28. Furthermore, I consider that there is considerable force in the submission that there is a pronounced public law element to the decision which is challenged in this case. The Council was not simply exercising a contractual power to require the removal of a sub-contractor. It was not merely a matter of commercial assessment and its economic consequences. It was taking a policy decision in pursuit of its public duties as an education authority as to the suitability of the claimant to act on behalf of the Council in the discharge of these particular functions. The Council, in exercise of its public law powers, has set up an elaborate structure to enable it to give effect to its policy decisions as to the suitability of individuals to provide services.
29. In these circumstances, the decision of the Council in the present case is amenable to judicial review.
30. The second basis on which the claimant contends that the decision of the Council is amenable to judicial review is that Article 8 of the European Convention on Human Rights is engaged.
31. Although it is established that private life for the purposes of Article 8 may include activities of a professional or business nature, it does not follow that Article 8 will automatically be engaged in any dispute following the termination of an employment or a disqualification from office. Indeed, as Stanley Burnton J observed in R (Wright) v Secretary of State for Health [2007] 1 AER 825 at paragraph 65, termination of employment or suspension from work or disqualification from specified employments or areas of work, do not in general engage Article 8. The Convention does not confer any right to work in a chosen profession. However, the particular circumstances of a case may nevertheless engage Article 8.
32. In R (Dr D) v Secretary of State for Health [2006] EWCA Civ 989, the Court of Appeal was prepared to assume that Article 8 was engaged. That case concerned an alert letter sent by the National Health Service to all NHS bodies making them aware that the claimant was considered to be a person whose performance or conduct could place patients or staff at serious risk. Although the matter is dealt with briefly, in view of the conclusion that the same test of pressing need applied as a matter of domestic law, it is likely that the Court of Appeal was influenced by the draconian nature of the disclosure, its effect on the reputation of the claimant, the stigma attached to the disclosure and the fact that such a letter effectively prevented the subject from practising his profession in the United Kingdom.
33. In R (Wright) v Secretary of State for Health, the claimant was placed on the Protection of Vulnerable Adults list, thereby effectively preventing him from working as a care worker with vulnerable adults. Stanley Burnton J, having referred to the general position that Article 8 will not be engaged in disputes concerning termination, suspension or disqualification from employment or office continued:

"However, the basis of provisional listing on the POVA list is suspicion of misconduct serious enough to indicate that a person constitutes a risk to vulnerable persons. That is calculated to interfere with his personal relationships with colleagues and the vulnerable persons with whom he has worked and with others. The judgment of the European Court of Human Rights in Turek v Slovakia supports this conclusion; there is no authority binding on me that requires a different conclusion. In my judgment, therefore, Article 8 is engaged."

34. In the present case, the Council submits that these cases are to be distinguished. It is said that an alert letter has a much wider effect upon the subject's hopes of holding gainful employment than in this case. Similarly, it is said that being placed on a statutory list, such as occurred in Wright, which was concerned with section 82 Care Standards Act 2000, makes it unlawful for any employer to engage the listed person in any employment where there may be contact with a vulnerable adult. By contrast, it is said that these drastic consequences do not flow in the present case. The claimant is free to carry on work as a taxi driver and, indeed, to work with children. The Council has simply decided that it does not wish her to provide such services to the Council.
35. I am unable to accept this submission. The evidence shows that the effect of the Council's decision has been to prevent the claimant from providing services to the particularly vulnerable children with special needs to whom she provided them for the previous six years. The effect of the decision is not limited to working for a particular main contractor. She has, in fact, been reduced to taking employment as an attendant at a public lavatory. The basis of the decision is her unsuitability to have contact with children because of her previous conduct, previous psychiatric condition and the risk of a recurrence. The Council has acted on the basis that she constitutes a risk to vulnerable persons. There is, to my mind, undoubtedly a considerable stigma attached to that finding even if it is not widely publicised. Moreover, the inevitable consequence of this decision has been a profound interference with her personal relationships with colleagues and the vulnerable persons with whom she has worked. In the particular circumstances of this case, I am satisfied that Article 8 is engaged.
36. On behalf of the claimant, Mr Giffin submits that while the claimant's case as a matter of domestic law can be put on the basis of fully fledged irrationality, it is not necessary for the claimant to go so far as to show irrationality in this Wednesbury sense. He says that in the circumstances of this case the court is entitled to intervene if satisfied that the Council's response was a disproportionate one.
37. He submits that in the circumstances of the present case the appropriate test is to ask whether it can be shown that there was a pressing need to take such action. Here he relies on the decision of the Court of Appeal in Dr D. In that case Laws LJ observed at paragraph 31:

"Mr Lynch QC accepts that pressing need is the test to be applied in this case. I agree. The importance of the decision to the appellant demands nothing less. I think it is significant to notice that this result is given by the common law, for it illustrates the distance the law has travelled since the field of executive discretion was dominated by the Wednesbury bludgeon. It is an odyssey which owes much to the ECHR as a source of inspiration, but its outcome does not depend upon the application of any Article of the Convention."

I accept that in the present case, by the same token, the importance of this decision to the claimant demands nothing less than the application as a matter of domestic law of the test of pressing need.

38. In Dr D Laws LJ explained the operation of this test in the following way at paragraph 29:

"The test for disclosure is 'pressing need'. I doubt whether further analysis would be particularly helpful. It must I think be obvious that the ascertainment of such a pressing need will require a balance to be struck between the interests of the person who is the subject of the allegations and the interests of the party to whom disclosure is proposed to be made (or those for whom that party is responsible, such as a health provider's patients); and a clear conclusion that in the circumstances the latter must prevail over the former. The nature and strength of the allegations and the vulnerability of the class of persons to be protected are likely to be at the centre of the decision-maker's consideration."

Furthermore, it is common ground between the parties that if, as I consider to be the case here, Article 8 is engaged, then the appropriate test on proportionality to be applied is the same test of pressing need.

39. I turn, therefore, to consider the application of these tests in the present case. Here, the claimant challenges both the approach of the Council and its decision.
40. So far as the approach was concerned, the Council was clearly required to evaluate the risk. The approach adopted by the Council was that it may refuse to accept the performance of the contractual provisions between it and its contractors where use is made of the services of any driver who presents an enlarged risk of harm to children.
41. I accept the submission of Mr Coppel that a risk assessment necessarily involves an evaluation of the likelihood of an occurrence and applying that probability to the assessor's aversion to that occurrence.
42. Although Mr Giffin criticises the Council for failing to state precisely what occurrence or event was contemplated, it is to my mind clear that the Council had in mind the risk of some physical harm or injury to the children trusted to the care of the claimant. It is not possible in the particular circumstances of this case to foresee or predict the nature of the harm or injury or the manner in which it might be brought back. The Council, to my mind, is not to be criticised for not attempting to define it with greater precision.
43. Mr Coppel rightly identifies that the risk of harm or injury to a child carries with it the highest degree of aversion. To my mind, the reason for this is the vulnerability of children, vulnerability and threat being the fundamental elements in any risk assessment. It seems to me, therefore, that the approach adopted by the Council was entirely rational and proportionate.
44. Mr Giffin accepts that it is the rationality or proportionality of the ultimate conclusion of the Council which matters for the purposes of this limb of challenge. He submits that it was simply irrational and wholly disproportionate to conclude that the claimant posed a high risk of harm to children in all the circumstances of the case. He points in particular to the following matters:

(1) The fact that it was some 30 years since the claimant had done anything to suggest that she posed any risk of harm to anyone.

(2) The fact that she had lived the whole of her adult life in a manner which was blameless and free of any relevant problems.

(3) The fact that she had undertaken a variety of types of employment over a long period, including work with children and vulnerable adults, as well as bringing up her own children, without any incident occurring to suggest that she posed any risk of harm to anyone at all.

(4) The fact that she had been undertaking the very work now in question for a period of some six years, without any incident occurring to suggest that she was other than entirely satisfactory or that she posed any risk of any kind.

45. In arriving at its decision the Council took into account, and was clearly entitled to take into account, the nature of the misconduct, the extent of that misconduct, the time which had elapsed since it had occurred and the mitigating circumstances.
46. So far as the misconduct itself was concerned, I have already given an account of it. These were clearly very serious offences which exposed the victims, who in the second group of offences included children, to a high degree of danger and fear.
47. If these offences had been committed recently there could be no question of the claimant being permitted to work with children. It seems to me that the crucial consideration in the present case is the passage of time since the commission of the offences and what has or has not occurred during that period. The Council expressly accepted that the risk of a recurrence of such behaviour was reduced by the fact that nothing of this kind had happened in 30 years. Nevertheless, it maintained that there was still a risk which it was not justified in taking. The question is whether that makes the decision irrational or disproportionate.
48. To my mind, the nature of the offending conduct of the claimant was so extreme and so dangerous that the Council was clearly entitled to come to the conclusion that there was here a real risk of recurrence and that it should not take that risk -- or more importantly it should not expose the children in its care to such a risk, notwithstanding the fact that there had been no recurrence for almost 30 years and that the passage of time could be considered to reduce the risk of a recurrence.
49. In this respect it is important to have regard to the evidence which was before the Council. It had information concerning the offences. It had supplemented that information by statements from members of the staff at the school where the firearms offences were committed. It also had the Social Services file on the claimant from the time of her troubled youth. It did have some evidence in the form of reports from psychiatrists from January of 1976 following the commission of the first group of offences which indicated that she was not suffering from any psychiatric illness or psychotic condition. Subject to that, there was no medical evidence as to the state of mind of the claimant at the time she committed the second or third groups of offences -- beyond the fact that an order was made under the Mental Health Act in respect of the offences involving the attempted escape from Borstal and the use of a knife.
50. I consider it of critical importance here that the Council did not have any evidence as to the current state of mental health of the claimant. Initially, Mr Giffin accepted that there was no duty on the Council to obtain such evidence before taking its decision. However, he later submitted that if the Council sought to go behind the discharge of the claimant from hospital and the fact that there had been no repetition of the offending behaviour for some 30 years, it was necessary that the Council should itself have obtained some psychiatric evidence as to the claimant's condition. To my mind, the Council is not to be criticised in this regard. It was for the claimant to place before the Council such material as she considered appropriate and relevant to its decision on that application. The fact that the Council was entitled under its own CRB procedures to seek information from third parties and that it did so in this case, seems to me to be beside the point. I consider that it was the responsibility of the claimant to place before the Council any medical evidence she wished it to take into account.
51. Nevertheless, Mr Giffin submits that in the absence of medical evidence as to the current state of mental health of the claimant, it was irrational and disproportionate to conclude that there was a current risk, given the passing of the last 30 years without incident, and in particular the fact that the claimant had discharged the duties of this very position for some six years in a wholly unexceptional way. He says there is a rank inconsistency between these factors and the conclusion that the claimant still suffers from the condition which led to her offending behaviour. I am unable to accept these submissions. The defendant has not necessarily concluded that the claimant is still suffering from the medical condition from which she suffered at the time she committed her offences. The Council was, rather, concerned to evaluate the risk of a recurrence of such behaviour. It had before it no evidence in the form of a medical report or otherwise that her previous medical condition was no longer present or that it could not recur. In particular, the Council was not concerned solely with the current situation. It was also concerned with the possibility of a recurrence of such behaviour at some date in the future. The decision letter makes clear that the decision-maker was concerned that, notwithstanding the absence of any recurrence in the last 30 years, there might be some recurrence of such behaviour with grave consequences. There was no evidence put before the Council to indicate that that was no longer a possibility. There was nothing to allay the Council's fears.
52. Moreover, in this regard I consider that it was obviously highly relevant to the Council's decision that the offences included offences in a school setting and that they included offences against children in that the children in the school were held hostage.
53. There is a further item of evidence to which the Council now draws attention. There was before it a letter of explanation from the claimant which provided an account of the offences. I realise that it must have been a very painful task for the claimant to address these matters after so many years. However, I regret to say that this letter did not give a full account of what had occurred. On the contrary, it sought to minimise and excuse what had occurred. The point is fairly made by Mr Coppel that the letter failed to give any insight into the offending behaviour or its effect on others, a fact which, far from being reassuring, is very troubling. However, on the evidence before me there is nothing to suggest that the officers of the Council involved in the decision-making process went so far as to draw that conclusion. The memorandum prepared by the senior legal officer in relation to the appeal review refers to the fact that the letter does not focus on the fact that some of her convictions were of a very serious nature or that these occurred in a school environment. I accept the submission of Mr Giffin that it does not go further and link the lack of insight with an increased risk. Nevertheless, this does not in any way invalidate the conclusion to which I have come for the reasons stated above.
54. In its account of the original decision, the decision letter states:

"In considering the above factors, the risk of harm to children was regarded as high and the decision was made that you would not be deemed suitable to work on school contracts."

Mr Giffin draws attention to the finding that the risk was high and suggests that this was further evidence of irrationality given the passage of time. He also points to the fact that Mr Coppel in his submissions has sought to distance himself from this finding and to apply a lower test. However, I am persuaded that these words can fairly be read, and should be read, as referring not to the risk of a recurrence of the offending behaviour but to the product of a recurrence, should it occur, and the possible consequences. I do not consider that this passage advances Mr Giffin's submissions.

55. In all the circumstances, I consider that the Council, in its approach and in its decision, was reasonably entitled to seek a high degree of reassurance there was no real residual risk to the children for whom the Council was responsible. In the absence of evidence which was capable of providing such reassurance, the Council was entitled not to take the risk -- or more accurately and more importantly, to expose the children to that risk.
56. In the course of his oral submissions Mr Giffin accepted that in the present context a pressing need would be shown if there was a real risk posed by the claimant to the children. For the reasons which I have given, I consider that the Council was entitled on the evidence before it to conclude that there was such a real risk. Similarly, I consider that the Council has shown that there existed a pressing need for it to take this action.
57. In this regard, I would draw attention to the fact that the Council gave careful consideration to the adoption of a less intrusive course, ie, the possibility of continuing to use the services of the claimant subject to some form of supervision for a limited period of time, possibly two years. However, as its decision letter makes clear, it rejected this course having regard to the nature and circumstances of the claimant's convictions. To my mind there was no practicable alternative to the course decided upon by the Council. There was a pressing need for it to act and no lesser measure could have met the legitimate objective of protecting the children for whom it was responsible.
58. Mr Giffin on behalf of the claimant makes a number of specific criticisms of the reasoning process of the Council. First, he said that the Council ignored the fact that when the claimant committed the offences she was in a disturbed state of mind. In response, the Council states that it simply was not in a position to conclude that the claimant was suffering from a mental condition throughout the time of committing the various offences, that the claimant is wholly free from any such condition now, or that the claimant will not at any time in future be subject to such a condition.
59. In this regard, I note that the early psychiatric reports on the Social Services file, from January of 1976, do not conclude that the claimant was at that time suffering from a mental illness or a psychotic condition. Moreover, the Council makes the valid point that in assessing the suitability of the claimant for working with particularly vulnerable children, the risk assessment is not the same as in assessing release from a secure hospital.
60. Secondly, it is said on behalf of the claimant that the Council appears to believe that the claimant has some sort of continuing, underlying problem or issue about schools. To my mind, there is nothing to indicate that this was any more than the recognition by the Council of the fact that the claimant's past misconduct had focused on educational establishments as relevant to the identification of risk to children. In my judgement, it was clearly right to do so.
61. Thirdly, it said that it is hard to escape the conclusion that the decision makers were influenced by a fear of ill-considered public criticism. To my mind, there is nothing to support this criticism. However, I should add that I do accept the submission by Mr Coppel that the Council was entitled to have regard to its responsibility for maintaining confidence in its education transport system.
62. I turn to the alternative basis on which the claimant puts her case. This has two limbs.
63. First, it is said that the Council's decision was expressly predicated on the proposition that approval would permit the claimant to have unsupervised access to children. However, the work she has done for the Council and the work she wanted to go on doing has always involved working with an escort. The claimant indicates that the decision letter refers at a number of points to the fact that approval would permit the claimant to have unsupervised access to children. However, the claimant says that the work she did always involved her working with an escort and did not involve unsupervised access to children. The claimant says that the Council failed to have regard to this consideration and could not rationally have refused to permit its contractors to use the services of the claimant on jobs where an escort was present. As Mr Coppel puts it, the question then becomes: on the assumption that the Council could rationally refuse to permit contractors using the services of the claimant in the absence of an escort, is it irrational for the Council to consider that the presence of an escort would sufficiently alter the risk such that the contractors should have been permitted to use the claimant on that basis?
64. The contractual provisions make clear that escorts are appointed by the Council with the responsibility for supervising and caring for the children. They have no responsibility to supervise the driver, nor do they exercise any control over the driver.
65. To my mind, once it is accepted that it was rational and proportionate for the Council to conclude that the claimant must not be used on occasions when an escort was not present, it was entirely rational for the authority to conclude that the presence of an escort does not alter the risk to the children so as to make any material difference.
66. In this regard, I would draw attention again to the fact that the Council in its decision letter expressly considered whether it would be possible to permit the claimant to drive under supervision provided by the Council. This appears to contemplate a person with responsibility for supervising the claimant and so might be thought to provide a greater likelihood of reduction of risk than the mere presence of an escort for the children. Alternatively, it may be read as a reference to the presence of an escort. In either event, the Council rejected this possibility, not on the basis of any practical considerations but "having due regard to the nature and circumstances of your convictions".
67. In all the circumstances, I consider that the Council's refusal to allow the claimant to continue to operate in the company of an escort was entirely rational and proportionate.
68. Finally, the claimant makes a further submission in relation to the status of her convictions under the Rehabilitation of Offenders Act 1974.
69. The claimant accepts that to the extent that the claimant would be working without an escort the Council was entitled to have regard to all of her convictions. However, it was submitted that the claimant would in fact always be working with an escort and therefore it was unlawful for the Council to have regard to her spent convictions.
70. Here it is necessary to refer to the relevant statutory provisions from the 1974 Act which provides in the relevant part:

"1. Rehabilitated persons and spent convictions

(1) Subject to subsection (2) below, where an individual has been convicted, whether before or after the commencement of this Act, of any offence or offences, and the following conditions are satisfied, that is to say --

(a) he did not have imposed on him in respect of that conviction a sentence which is excluded from rehabilitation under this Act; and

(b) he has not had imposed on him in respect of a subsequent conviction during the rehabilitation period applicable to the first-mentioned conviction in accordance with section 6 below a sentence which is excluded from rehabilitation under this Act;

then, after the end of the rehabilitation period so applicable (including, where appropriate, any extension under section 6(4) below of the period originally applicable to the first-mentioned conviction) or, where that rehabilitation period ended before the commencement of this Act, after the commencement of this Act, that individual shall for the purposes of this Act be treated as a rehabilitated person in respect of the first-mentioned conviction and that conviction shall for those purposes be treated as spent . . .

4. Effect of rehabilitation

(1) Subject to sections 7 and 8 below, a person who has become a rehabilitated person for the purposes of the Act in respect of a conviction shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction; and, notwithstanding the provisions of any other enactment or rule of law to the contrary, but subject as aforesaid --

(a) no evidence shall be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in Great Britain to prove that any such person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which was the subject of a spent conviction; and

(b) a person shall not, in any such proceedings, be asked, and, if asked, shall not be required to answer, any question relating to his past which cannot be answered without acknowledging or referring to a spent conviction or spent convictions or any circumstances ancillary thereto . . .

(3) Subject to the provisions of any order made under subsection (4) below --

. . . (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.

(4) The Secretary of State may by order --

(a) make such provisions as seems to him appropriate for excluding or modifying the application of either or both of paragraphs (a) and (b) of subsection (2) above in relation to questions put in such circumstances as may be specified in the order;

(b) provide for such exceptions from the provisions of subsection (3) above as seem to him appropriate, in such cases or classes of case, and in relation to convictions of such a description, as may be specified in the order."

71. It is common ground that the first group of offences and third group of offences are offences in respect of which the rehabilitation period has long expired by virtue of section 5(4A) and section 5(7) respectively. It is also common ground that the offences relating to the offence in the school, the second group of offences, are not offences in respect of which the claimant can ever become a rehabilitated offender.
72. Mr Giffin relies on Section 4(3)(b) and submits that the spent offences are not a proper ground for excluding a person from any occupation or employment or for prejudicing him in any way in any occupation or employment, subject only to exceptions created by legislation.
73. In this regard one must turn to the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975:

"None of the provisions of section 4(2) of the Act shall apply in relation to --

(aa) any question asked by or on behalf of any person, in the course of the duties of his work, in order to assess the suitability of a person to work with children, where --

(i) the question relates to the person whose suitability is being assessed."

"Paragraph (b) of section 4(3) of the Act shall not apply in relation to --

. . . (b) any office, employment or occupation specified in Part II or Part III of the said Schedule 1 or any other work specified in paragraph 12, 13, 20 or 21 of Part II of the said Schedule 1 . . . ."

Part II of Schedule 1 includes:

"(14) Any work which is --

(a) work in a regulated position . . . "

74. Schedule I Part 4 provides that "regulated position" means a position which is a regulated position for the purposes of Part II of the Criminal Justice and Court Services Act 2000. Section 36 of that Act defines "regulated position" as follows:

"(1) . . . (c) a position whose normal duties include caring for, training, supervising or being in sole charge of children.

(d) a position whose normal duties involve unsupervised contact with children under arrangements made by a responsible person . . . "

75. Mr Giffin submits that the position in question is neither a position whose normal duties include caring for, training, supervising or being in sole charge of children; nor involving unsupervised contact with children in arrangements made by a responsible person.
76. However, Mr Coppel refers to section 35(5) which provides:

"The reference in subsection (1)(d) to the unsupervised contact is to contact in the absence of any responsible person or carer; and in this subsection 'carer' means a person who holds a position such as is mentioned in subsection (1)(c)."

A responsible person is defined in section 36(13) and it is common ground that the escort who travels on the minibus which the claimant drives is not a responsible person.

77. It is therefore necessary to enquire whether the escort is a carer; that is, whether the escort holds a position whose normal duties include caring for, training, supervising or being in sole charge of children. The contract provisions regarding escorts make clear that they are engaged to care for and supervise the children on the bus. The escort is a carer for purposes of 36(5).
78. Finally, it is necessary to ask if the position in question is one whose normal duties involve contact with children in the absence of the escort. It seems to me inevitable that there would be contact between the driver and the children in the absence of the escort. In particular, the escort would be involved in assisting children to move between their homes and the bus. If this is correct, I consider that the Council would have been entitled to take account of the spent convictions.
79. However, even if I am wrong in this conclusion, the claimant has to overcome two further difficulties. First, Mr Coppel says that the claimant did not confine her application to being a driver in relation to supervised transport. Her application was to be permitted to drive children on school passenger transport contracts. We do not have in evidence the original application by the claimant. However, that would be true of the original application made by the claimant if, as appears likely, it was made on the Council's standard form. The original application would have been to be permitted to drive children on school passenger transport contracts. The effect of the provisions to which I have referred is that the Council would be entitled to take account of all of her previous convictions in considering that original application. That is what in fact occurred.
80. However, after the decision was taken and after these proceedings were commenced on 26th January 2007 the claimant wrote to the Council asking whether it was willing to approve her to drive only on supervised transport and asking the Council to consider the letter as a formal application for such approval. In its response the Council stated:

"An escort's role is not to supervise a driver. Nor can the County Council guarantee that the contractor would only give you work with an escort. Moreover, for those to whom you would be providing the service there is no way of knowing whether there should or should not be an escort."

If I am wrong in my conclusion as to the effect of the statutory provisions, it would follow that in considering this later application the Council should not have considered the spent convictions (I would observe in passing that I have considerable difficulty in seeing how, as a matter of practicality in those circumstances, the Council could have been expected to put out of its mind the spent convictions).

81. However, it is necessary to consider what material would have been before the Council if it had disregarded those spent convictions. First, there would have been the evidence of the convictions of May 1976, the second group of convictions. These were the offences relating to the incident at the school: the hostage taking and the use of a firearm. These were by far the most serious of the offences. They will never become spent offences under the Rehabilitation of Offenders Act. The Council rightly attached great importance to those offences and the circumstances of their commission.
82. Secondly, there would have been the evidence on the Social Services file, other than the facts of the convictions for the spent offences. This file reveals a very disturbing history of violence and dangerous conduct involving victimisation.
83. In these circumstances, I have no doubt that the Council would inevitably have come to the same conclusion, even if it had excluded from its consideration the spent convictions. In coming to this conclusion I note in particular the following further matters:

(1) The importance the Council attached to the second group of convictions.

(2) The Council's published CRB procedure which states:

"Any criminal record involving any offences against children and vulnerable adults, serious sexual offences, and serious violent offences under sections 18 or 20 of the Offences Against the Person Act 1861 will usually disqualify a driver from working on a [B] Council passenger transport contract."

(3) The particularly vulnerable nature of the passengers who would be driven by the claimant.

(4) I also note the evidence before the court as to the manner in which the Council has dealt with other applications from other drivers who have much less serious convictions than those in the second group of convictions in the case of the claimant.

84. I consider that the outcome would inevitably have been the same.
85. For these reasons I have come to the clear conclusion that the Council did not act unlawfully in taking its decision that the claimant should not be permitted to drive on school passenger transport contracts. I have no doubt that the fact that these very serious convictions from her youth have come back to haunt her will have been a source of great distress to the claimant who has led a blameless life since her discharge from hospital almost 30 years ago, and who has performed these very duties for a number of years in a wholly unexceptional way. However, the interests of the claimant are not the only interests involved here. The Council was faced with the task of balancing the interests of the claimant with the interests of the children for whom it is responsible. This court can intervene only if the Council can be shown to have acted unlawfully in its decision-making process. I am entirely satisfied that in this case there is no basis for this court to intervene.
86. Accordingly, I propose to grant permission to apply for judicial review but to dismiss the application.
87. MR GIFFIN: My Lord, as far as that issue of anonymity is concerned, I would seek an order under Rule 39.2(4) of the CPR that the claimant's identity not be disclosed. Such orders in practice, as my Lord will know frequently are taken, I believe, to include a prohibition on disclosing details which would or could lead to the identification of the claimant. In this particular instance, if my Lord was minded in principle to make such an order, I would suggest that that the case should be referred to as R (on the application of A) v B Council and that there be no disclosure of the identity of the particular authority or the geographical locations concerned. I say that because, given the particular type of transport that is being concerned, there probably would be a significant risk. Your Lordship has the point. My Lord, as to the principle --
88. MR JUSTICE LLOYD JONES: It is going to call for some careful editing of the transcript, much of the substance of it will require redrafting.
89. MR GIFFIN: I suspect the main thing is the Council's name. Of course, my learned friend is quite right in what he said at the outset that he is not particularly concerned about people going through the law reports.
90. MR JUSTICE LLOYD JONES: Part 39?
91. MR GIFFIN: Part 39.2(4) which, if your Lordship has the current White Book, is page 1022. The test is necessity to protect the interests of the party. Your Lordship has already held in judgment, in connection in particular with the finding of the applicability of Article 8, that the matters concerned represent -- I think your Lordship used the word "stigma", in the effect of my Lord's judgment. It has involved discussion of spent convictions which my Lord has held were proper matters for the Council to take into account, but nonetheless are matters which normally a person should be entitled to regard as not in the public domain. It involves discussion of material which has come from the claimant's confidential Social Services file.
92. It is, in my submission, plain that it would be adverse to the interests in the broader sense for this material which she might have hoped to put behind her a long time ago to be put out in into the public domain. Of course she has chosen to litigate the issue but I hope my Lord will take the view that it was not a frivolous application.
93. MR JUSTICE LLOYD JONES: I will hear what Mr Coppel has to say.
94. MR COPPEL: My Lord, we do not have a position in relation to anonymising the claimant's name alone. What we do not believe should be done here is that there be any further anonymisation including the Council or any other facts. In relation to that may I make the following observations.
95. First of all, that the facts themselves are of course on the public record. Your Lordship has seen, for example, the report from the newspaper many years back. True historic interest for those who scour the newspapers or may have a recollection. Nevertheless, it is on the public record. Secondly, there is no suggestion, no hint anywhere, of any hostility having been shown to the claimant from, for example, what has already taken place. She is no longer working contracts. There is no suggestion of any stigma having attached to her.
96. MR JUSTICE LLOYD JONES: Well, there is effectively a ban on her from providing her services to any contractor for the purposes of education transport.
97. MR COPPEL: Yes, my Lord, but there is no suggestion from her that she is being ostracised or she has had hostile correspondence or anything like that; which sometimes of course does happen, misplaced public criticism of individuals for what has taken place. There is no suggestion of that. I do not in any sense down play the effect that this had upon her being able to perform a particular contract. What I am saying is that it has not generated anything beyond that, anything personal, any animosity towards her. That is relevant in the exercise of your discretion in deciding how far the anonymisation should go.
98. The last point that I make is that we cannot see that it would be actually adverse to her interests if the anonymisation did not go beyond that. Judgments of this court by and large are not scoured by members of the public and do not -- and my Lord, we would suggest, will not -- result in any stigma being attached to the claimant merely, for example, by the naming of the Council itself. We suggest a measured approach. We do not have a view in relation to the claimant's name, but beyond that we do not see that there should be any further anonymisation.
99. MR JUSTICE LLOYD JONES: Do you have any submissions?
100. PRESS REPRESENTATIVE: Just one thing, my Lord, occurs to me. That is, given you are making an order for anonymity, supposing that you do, to name the Council given the facts of this case would considerably tend to identify. That is my concern. The facts of the case would tend to identify. I just thought I would say that so we are absolutely clear.
101. MR JUSTICE LLOYD JONES: I am grateful. A large number of people drive buses and minibuses for the Council, including those for vulnerable adults and children with special needs. I am minded to grant the order but I am minded not to anonymise the Council. I would be anxious to protect the position of those who report these matters, making clear that if . . .
102. MR GIFFIN: My Lord, I will seek to move your Lordship from that provisional view because this is a matter of very substantial importance to my client. My Lord is disposed to order that her anonymity be protected. The question therefore becomes simply that whether disclosing other details would be likely to create a serious risk that that primary purpose would be subverted. My Lord has heard from Mr Ascot, whose experience of these matters is probably greater than the rest of us combined, who is normally getting to his feet to urge more rather than less openness. He has told your Lordship that he sees, as I understood it, a significant risk that in these circumstances identifying the local authority would subvert the primary purpose of the order.
103. I do remind your Lordship that, as one sees simply from the case titles referred to in some of the cases before the court, Dr D for example, it is by no means unusual for a public authority itself not to be named, as in the case of ex parte LMN, there is Turner J decision which is referred to as A v Chief Constable of B and C County Council. Those may not be the precise letters. There is another decision of Burton J. It is by no means an unusual approach to take, and in this instance one has to look at the fact not only that it is a provision of school transport for a particular county, but there is also your Lordship's judgment which should be freely reported except restricting where it refers to the particular kind of school transport, namely transport for children with special educational needs. It refers to various details about the claimant's family situation. I think, my Lord, it even refers to the route on which the claimant was previously driving. I do urge with really all the force I can command that allowing an identification of geographical area A -- there is a legitimate public interest in knowing about a case of this kind and the approach the court has taken to it, but that public interest, I suggest, is not materially advanced by knowing the particular area. It creates a very real risk that it will lead to the claimant herself being identified with consequences not only for her but to the daughters as well.
104. MR JUSTICE LLOYD JONES: I am persuaded that there should be an order pursuant to Part 39.2(4) prohibiting the disclosure of the identity of the claimant. I make that order because I am satisfied that it is necessary in order to protect her interests. I had originally thought that it would nevertheless be appropriate to allow the publication of the name of the defendant authority. However, having considered the matter further in the light of the submissions which have been made, I am persuaded that that would inevitably have the effect of tending to disclose the identity of the claimant, and I consider that there is no public interest in disclosure of her identity which outweighs the need to protect her.
105. In those circumstances, I am going to say that the order should extend to a prohibition on disclosing the identity of the defendant Council. It will also extend to a prohibition on disclosing the destination of the route which she was operating. Any other matters?
106. MR GIFFIN: My Lord, no.
107. MR COPPEL: My Lord, I make an application for costs. The defendant has been, of course, successful in this application. Costs normally follow the event. The matter originally was set for one day. Those who instruct me prepared a summary assessment schedule. Plainly that has gone by the by. We might put the summary assessment point to one side and consider the principle. As I say, my Lord, the defendant has been successful and on ordinary principles is entitled to its costs. My learned friend has a Legal Aid certificate, I think, with effect from a couple of days ago. I do not know the exact date.
108. In those circumstances, the appropriate order would be that thereafter those costs not be permitted to be enforced without the permission of the court.
109. MR JUSTICE LLOYD JONES: The costs incurred after the date of the certificate should not be enforced without leave of the court?
110. MR COPPEL: Exactly, my Lord. Before then, costs should follow the event.
111. MR JUSTICE LLOYD JONES: Mr Giffin?
112. MR GIFFIN: My Lord, I find it difficult to resist the proposition that costs should follow the event as far as your Lordship's order is concerned. One would hope that in the circumstances the Council would think about what it wished to do, but that is a matter for the Council subsequently. So far as the appropriate form of order is concerned, my understanding is that the normal order in the case of the publicly funded party is that your Lordship makes the order for costs against, in this case, the claimant but that the amount of her personal liability, if any, be determined by the costs judge.
113. MR JUSTICE LLOYD JONES: To be assessed if not agreed.
114. MR GIFFIN: To be assessed. That is part of that process. There is a practical point in this case because there is currently an issue which my instructing solicitors are pursuing with the Legal Services Commission about when the Legal Aid should run from because, to cut a long story short, they managed to perhaps handle the application in not as expeditious and efficient a way as they should have done. That is all a matter that can be dealt with when the amount of the personal liability, if any, is assessed. I think that creates no prejudice for the Council. I think I even detect that Mr Coppel would not resist what I am suggesting.
115. MR JUSTICE LLOYD JONES: What I am minded to do is to say that there should be an order that the claimant pay the defendant's costs not to be enforced without the leave of the court. There is a question about the date which has to be resolved. The amount is to be assessed if not agreed.
116. MR GIFFIN: My Lord, I am probably not giving your Lordship the assistance I should be able to, but I think that is really the old form, Legal Aid. I would have thought that the current standard form of order in the case where there is an assisted party would be appropriate in this case. I suspect that the associate is much better at forming that than me.
117. MR JUSTICE LLOYD JONES: My understanding is that previously it was an order not to be enforced without leave of the court.
118. MR GIFFIN: Then your Lordship's understanding is different from mine. That probably means I am wrong. The question of leave of the court no longer comes in. It is an order against the claimant that the amount of the claimant's liability is to be assessed.
119. MR JUSTICE LLOYD JONES: Yes. There is the question of the order for costs and there is the question of assessment. It is quite a lot of costs concerned. I am minded to make that order if it is not resisted, but if you have been legally assisted all the way through that would be an order not to be enforced without the permission of the court. So I am minded for the moment to say that there should be no enforcement of the costs so that this matter can be resolved. So far as the assessment of those costs is concerned, it is not any longer a matter for me to do a summary assessment, and it is a case where there should be a detailed assessment unless the parties are agreed. Do you want to dissuade me.
120. MR GIFFIN: My Lord, from my client's point of view --
121. MR JUSTICE LLOYD JONES: I am seeking to protect her position.
122. MR GIFFIN: Well then, my Lord, I am fine with that.
123. MR COPPEL: We are happy with the form of order which your Lordship has suggested which accommodates the point your Lordship makes.
124. MR JUSTICE LLOYD JONES: The last part says to be assessed if not agreed because it has to be back before the judge anyway.
125. MR GIFFIN: My Lord, since I am not in a position to take any instructions I should ask for permission to appeal in order to preserve the position. I appreciate that the issues of principle my Lord has, in effect, determined in my favour. Really, the basis on which I say there is an application for permission to appeal is simply the importance of the matter to the claimant and to say that on the facts given, the lapse of time which my Lord identifies as a critical factor, I would appreciate, if my Lord has not taken a clear cut view, there is nonetheless a realistic prospect that a different court might take a different view.
126. MR COPPEL: My learned friend has made the point so far as the wider principles are concerned that it may in a sense have been resolved in his favour. My learned friend says that it is in the claimant's interests. As your Lordship has already observed, it is not only this claimant's interests in play but those of the wider public. In those circumstances, if my learned friend really does wish to go to the Court of Appeal he should try and entice them himself.
127. MR JUSTICE LLOYD JONES: Any further submissions?
128. MR GIFFIN: No, my Lord.
129. MR JUSTICE LLOYD JONES: I am going to refuse permission to appeal. I am satisfied that it has no realistic prospect of success.
130. MR COPPEL: Nothing else, my Lord.
131. MR JUSTICE LLOYD JONES: Thank you both very much.