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 WC2A 2LL
		Wednesday, 10 December 2014

1. MR JUSTICE WILLIAM DAVIS: This is a claim for judicial review of a decision of the Commissioner of the Police of the Metropolis whereby he refused to delete or expunge a caution recorded against the claimant. Permission has been given to apply for judicial review of that decision by the single judge.
2. It was on 5 February 2007 that a duly authorised officer of the defendant cautioned the claimant for an offence of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against The Person Act. The victim of the offence was the claimant's daughter. She was either 3 or 4 at the time. At different times different birthdays have been given for the child. The discrepancy is immaterial for these purposes.
3. The caution process necessarily involves an acceptance by the alleged perpetrator of the offence that she is guilty of it. A caution gives rise to a formal document. So far as I know, that document no longer is available. But I have no reason to doubt that it was signed by the claimant. The records that are available show that the claimant admitted an assault. Indeed, she admitted an assault immediately upon the arrival of police officers at her flat on the day before the caution was administered. Police officers had been in her general neighbourhood investigating something unconnected with her when they happened to glance up through her upstairs window. They saw a female striking a small child. I say no more than that at this stage. Nobody doubts that the police officers could at least see that. The police officers went to the claimant's flat. Their assertion was that they could hear what they described as screaming of a child from inside. When they went in they saw a child, apparently very frightened and cowering away, who had reddening to her face and swelling to her hands/lower arms. The claimant at the scene admitted striking the child.
4. The day after the incident, the child having been kept in hospital overnight, a paediatrician having regarded that as necessary and appropriate, the hospital noted just bruising to the wrists. There was no mention of any damage to the face.
5. The claimant was interviewed by police officers. I have what appears to be a relatively accurate transcript of the tape recorded interview. It discloses that the claimant was represented by a solicitor. She was asked what had happened on the previous evening. It was, by now, 5 February. She said this:

"Last week we did homework. I tried to motivate her, that's my daughter, first by helping her and, second, when she still refused to do it, I send her to go and sit in the toilet for some time. When she came back she tried to do it again, and it was then when she totally refused to do it, and I noticed there was no way I could encourage her any more, and I got a little but upset, and it was last week, and I slapped her on the wrist and asked her: 'will you do it now?' I was very upset. So it happened last week that I did slap her a few times on her wrist and then she did start to do it. Yesterday [so by now talking about 4 February] I tried a little bit of the same technique. She went to the toilet. She laid down on the floor and sleep there. When she got up she had sleepy eyes. She just wanted to sleep. And I got a little bit upset. She did not come out of the toilet. She just sit there. Maybe she was upset for the last week and she wanted to challenge me. Because the last week she did try to do something after I slapped her on the wrist, so this week I tried to push her a little bit at first, first by words, and then I slapped her, and I asked: 'Will you be that now?' And then: 'Do you want to go to the toilet?' And then she just refused to do it. And that's how I slapped her, and I slapped her a few times."

6. That account was given, effectively without prompting, by the claimant in the presence of her solicitor. The police officers continued with the interview by putting to the claimant what allegedly had been seen by police officers, including so the police officers said, the claimant striking her child on the face, to which the claimant said that that was not true. She simply had held the hand or arm of the child and slapped her wrist. When asked about the strength of the blow, she said: 'I was very upset and I was slapping her. Maybe that was painful for her obviously but I did not use all the strength'. When asked about the reaction of her child, she said she was crying but she wasn't screaming.
7. Towards the end of the interview, the claimant was asked whether she thought it was sensible to ask a 3-year-old to do her homework at 8 o'clock in the evening. To which the claimant replied: 'No.' When asked finally what her feelings were about this, she said: 'I feel shocked that I am here, even that I know I slapped her and that is inappropriate.'
8. It was doubtless in the light of that, together with the other material the police had, that they determined that some form of criminal process was appropriate. On that day in February 2007 they determined that a caution was appropriate. Whether that would be so today or in the near future remains to be seen but that is what they did.
9. In 2011 the claimant applied for employment for which appropriate CRB checks were required. That employment, so it is said in the claimant's witness statement, was as a befriender based in the client's home. I confess I do not know what such employment means, and no further explanation is given. It must be some form of employment involving close contact with someone in their own home.
10. The defendant disclosed the caution to the potential employer when the appropriate enquiry was made. In the event, the claimant did not obtain that employment. I have no direct evidence as to why. Following that, on 14 December 2011, the claimant applied in writing for removal of the caution. At that stage, the basis of the application was that the caution ought not to have been administered at all. It was based on inaccurate information and there was no proper evidence of any actual bodily harm to substantiate the more serious charge of assault. That application was refused by the defendant by a letter dated 24 August 2012. That refusal came after various exchanges of correspondence including a letter to which I shall have to return.
11. On 26 July 2013, the claimant applied again for the caution to be removed or expunged. On this occasion, the basis of the application was that indefinite retention and consequent disclosure of the caution was an unwarranted interference with her rights under article 8 of the European Convention. Her application cited the recently decided case of MM v United Kingdom (Application no. 24029/07) which was decided on 29 April 2013 in the European Court of Human Rights. The general principle of that case, as cited in the letter, was that retention and disclosure of the kind engaged in by the Commissioner was not in accordance with law.
12. The Commissioner responded in due course to that request, first, by a letter dated 19 August 2013. It was written by Mr Sayers, but it reported the findings of a Commander Basu, from whom I have evidence. It noted that Commander Basu had reviewed all the correspondence relating to the case and: "was of the opinion that the caution will not be expunged". It noted that Commander Basu had requested advice from the Directorate of Legal Services with a view to further retention of the data, in particular, the length of time that the caution would be retained. On 25 September of the same year, a further letter was sent to the claimant in which this was said:

"The advice of the Directorate of Legal Services stated that your caution should still remain. However, it would be reasonable for the Metropolitan Police Commissioner to review its retention, if you requested it, in 5 years time in 2018. As an assault occasioning actual bodily harm is a serious offence, it will not be filtered under the Home Office's old and minor convictions and cautions legislation. It will therefore be included in future DBS disclosures."

13. It was that letter which led to the application for permission to apply for judicial review. When giving leave, the single judge concluded that it was an arguable case on the basis that the continued retention and disclosure of the caution without any review until 2018 arguably was a disproportionate interference with the article 8 rights of the claimant. That then is the factual background. I turn to the relevant law. In her application in 2013, the claimant cited MM v United Kingdom. That concerned the system of cautions and retention of cautions in Northern Ireland. For my purposes there is no distinction between the system there and that in England and Wales.
14. MM had been cautioned for an offence of child abduction in 2000. At that time, the basis of the caution was that it would remain on her record, to use the vernacular, for 5 years. Subsequently there was then a change of policy in the light of, and following, the notorious Soham murders. The policy changed such that cautions were kept on somebody's record for life; in the specific case of MM, when they involved some offence against a child. The European Court of Human Rights concluded that the new policy was indiscriminate, and therefore was a violation of article 8, and not in accordance with law. The position was considered by the Court of Appeal in T v The Chief Constable of Greater Manchester and the Secretary of State for the Home Department [2013] 1 WLR 2515. I do not need to cite at length from that authority. The view of the court, the judgment being given by the Master of the Rolls, was that the provisions of Part V of the Police Act of 1997 were incompatible with article 8, those provisions being, in relation to England and Wales, the provisions which led to the indefinite retention of cautions on the police system.
15. There was in the judgment a discussion of the practicability of having something other than a blanket system. The court, at paragraph 43, said this:

"A proportionate scheme would not require the individual consideration of each case... A number of options have been suggested, including a range of what might be called 'bright-line' sub-rules."

The court went on to discuss the suggestion that there may be convictions or cautions for certain specified offences that might always remain on somebody's record, whereas others would not. That was merely a discussion in the course of the judgment. The effect of the judgment was a finding of incompatibility. In consequence, there was an amendment of both the Police Act 1997 and the Rehabilitation of Offenders Act 1974.

16. It is the Police Act 1997 which is of most relevance to this case. Section 113 of that Act in its original form required the Secretary of State to issue a criminal record certificate to any individual who made an application in the prescribed form and paid the relevant fee. A criminal record certificate was a document which gave the prescribed details of every relevant matter relating to a relevant person on the central records. A relevant matter was defined inter alia as a caution. In other words, there was no filtering or distinction. The system applied to any caution imposed at any time for any offence.
17. The amendment following T (supra) was achieved by the Police Act 1997 (Criminal Record Certificates: Relevant Matters)(Amendment) (England and Wales) Order 2013. That was a statutory instrument made on 22 May 2013. In relation to cautions, relevant matters now were restricted to (a) a current caution and (b) a caution given in respect of an offence within subsection (6D) of the amended Act. A current caution was defined in the case of an adult as a caution given within 6 years of the date on which the certificate was issued. An offence within subsection (6D) was identified as covering a large number of offences including at (e) an offence specified in Schedule 15 to the Criminal Justice Act 2003. That means a specified offence for the purposes of that Schedule. Assault occasioning actual bodily harm is a specified offence. Therefore, the provisions of the amended Act meant that retention of a caution for the offence for which this claimant was cautioned would remain indefinitely on the criminal record of the person concerned.
18. Those amending provisions were passed between the hearing of the case of T in the Court of Appeal and the judgment in the Supreme Court upon the appeal of the Secretary of State against the Court of Appeal's decision. The result of that appeal is of no immediate consequence to this case. The declaration of incompatibility was supported by the Supreme Court but the Supreme Court was able to note the amendments made by the statutory instruments, in particular the one to which I have already referred.
19. Lord Wilson, giving the first judgment of the Supreme Court identified those amendments at paragraphs 13 and 14 of the judgment, and at paragraph 15 said this:

"The recent orders, each approved by resolution of Parliament, therefore represent a departure from the former regime under which disclosure of all spent (as well, of course, as unspent) convictions and of all cautions was required if the question was put, or the application for a certificate made, in the specified circumstances. Even in those circumstances certain spent convictions and cautions, identified by their subject matter and in the case of a conviction also by the sentence, and also by the number and age of them, are no longer required to be disclosed."

20. Lord Wilson's review of the amending legislation indicated that there was no suggestion that the law as it now stood was incompatible with article 8.
21. I have been provided also with a document entitled The Disclosure and Barring Service Filtering Guide. I do not have satisfactory evidence as to when this guide was introduced. I do not have satisfactory evidence as to whether all of it was introduced at the same time. It has been suggested that parts of it actually prevent the Commissioner in this case from doing that which he ought to do to satisfy his duty under the Human Rights Act. As we shall see in a moment, the filtering rules set out in the Guide merely reflect the amendments made to the Police Act 1997 in so far as they are of significance in this case.
22. I deal then with the submissions made by the claimant. First, the filtering guidance policy issued by the Disclosure and Barring Service, it is submitted, is unlawful. It is incompatible with article 8. It does not reflect the amendments of the 1997 Police Act. It is far too wide. As to those submissions, these points arise. First, as I have already indicated, I have no evidence as to when the policy was introduced. I have no evidence as to what policy considerations were considered in its drafting and introduction. I have no evidence at all about the decision process which led to its introduction. None of that is a great surprise because the Secretary of State for the Home Department, whose policy this is, is not a party to these proceedings. I cannot possibly pass judgment on the compatibility of this policy with any part of the Human Rights Act. Next, does the policy, as a matter of fact, prevent the expunging or deletion of a caution, which appeared to be the claimant's initial submission? The wording of the policy merely sets out, in effect, the Police Act 1997 as amended. That is the effect of it. It deals with adult convictions which will persist for 11 years, and adult cautions, which will be removed after 6 years. It states that removal will not occur if the caution relates to one of the list of offences which will never be removed from a certificate.
23. For my purposes, referring back to the amendment order, that includes assault occasioning actual bodily harm, contrary to section 47, ie a specified offence under Schedule 15 of the Criminal Justice Act 2003. I do not conclude that the filtering rules mean that it is impossible, unlawful or otherwise impracticable for a police commissioner in the position of the defendant to delete or expunge a caution, should he decide that that was the appropriate course. I am fortified in that conclusion in part by the fact that the claimant himself in his grounds applies for an order to delete the caution. The defendant has a unit which is entitled The Early Deletion Unit which would hardly need to exist if the power did not exist. I am quite satisfied that there is such a power in the event that the Commissioner seeks to exercise it. The filtering rules and the policy set out behind those rules is not the provision which, in law, involves the retention of this caution. The provision in law which so involves the retention of the caution is the 2013 amendment order. That order was considered by the Supreme Court in T, in my judgment, in accordance with law.
24. So, as to the claimant's first submission, I do not find that the policy issued by the Secretary of State for the Home Department is unlawful or in any way incompatible with article 8 of the Human Rights Convention. The second submission by the claimant relates to the review suggested in the letter dated 25 September from the Commissioner. It is argued that that proposed review has no clear basis. The criteria that would be adopted when carrying out the review have not been identified. The claimant argues that the review in consequence must be arbitrary and subjective. Certainty is required in a review of this kind. Without certainty there must be a breach of her article 8 rights.
25. In his evidence, Mr Basu, the official of the defendant who made the decision in August and September 2013 said this.

"I recognise that the claimant is entitled to make further representations in the future regarding the retention of a caution, and I, or my successor in post, will review the retention, given the particular circumstances prevailing at the time and in line with the Home Office guidance and legal developments."

26. I conclude that there is in reality nothing more that Mr Basu or anyone else in his position could say at this stage, assuming, as I must for the purposes of this argument, that postponing a review until 2018 is a proportionate response. I have no possible basis to conclude that the review would be anything other than objective and proportionate. Why should it be? I have no proper basis on which to conclude that the decision taken in 2013 was carried out in an arbitrary way. It may or may not be open to criticism, as I shall come on to discuss shortly. But the mere fact that a review is not specified, when that review is to take place in 4 years time, does not, in my judgment, render it unlawful per se.
27. So I come to the third argument of the claimant, and the one on which, in reality, the case must concentrate, namely the argument that the retention of the caution was a disproportionate response, and consequently was an unwarranted interference with the claimant's article 8 rights. I should say, if it has not hitherto been obvious, that there is no dispute but that the administering of a caution and the retention of a caution constitute an interference with article 8 rights. The issue is whether that interference can be justified under article 8.2.
28. The claimant invites me to apply the test set out at paragraph 39 of the Supreme Court's judgment in T. I refer again to the judgment of Lord Wilson:

"One asks first whether the objective behind the interference was sufficiently important to justify limiting the rights of [in this case the claimant] under article 8; second whether the measures were rationally connected to the objective; third whether they went no further than was necessary to accomplish it; and fourth, standing back, whether they struck a fair balance between the rights of [the claimant] and the interests of the community."

29. The claimant relies in particular on what was said in a letter written in the course of her first application to expunge or delete the caution, when an officer of the Directorate of Legal Services at the Metropolitan Police wrote as follows:

"As things stand at present the caution remains recorded against your client and, if appropriate, that matter would be still be disclosed... Such disclosure is only likely to be relevant in relation to positions involving contact with children. It would almost certainly not be relevant to positions involving adults."

That was a letter sent on 6 March 2012.

30. In terms of the application the claimant made in 2013, it is, in a sense, of historic interest. The claimant argues that the letter shows a clear acceptance by the defendant that this caution only is of relevance to positions involving contact with children. The defendant today argues that that assertion simply is unsupportable and should not be considered by me as being in any way conclusive of the issue. They identify that the claimant applied for the position, as I have already identified, as befriender, based in the client's home. Other applications have been made for positions as a psychologist. A psychologist, the defendant argues, by definition, may come into contact with all kinds of people, particularly vulnerable people and potentially children.
31. I have to consider whether in the context of that the measures, namely the disclosure of the caution, were rationally connected to the objective, the objective being providing potential employers with relevant information about a person who potentially might be employed by them. I have come to the conclusion that the measures were rationally connected to that objective. This was a serious assault on a vulnerable child. Somebody potentially employing the claimant, whether as a befriender or as a psychologist, would have good reason to know of the conviction for assault occasioning actual bodily harm in the particular context of this case. The claimant invites my attention to paragraph 7 of Commander Basu's statement:

"Although the caution was for a serious offence of cruelty to a preschool child, I felt the claimant should be given the opportunity of making further representations at a point where the incident could be said to be historic and the child in question have grown to maturity."

32. I am invited to infer that Commander Basu had in mind that the issue was the protection of the child. I do not conisider such an inference is irresistible. I concede that Commander Basu's language is opaque but the reality is that this information was of relevance to the employers who potentially were going to employ this claimant in the sort of position for which she was applying for jobs.
33. The defendant submits, and it not significantly argued to the contrary, that it is appropriate for me to consider various criteria when considering the fair balance between the rights of the claimant and the interests of the community, which obviously includes the interests of potential employers. He stresses the underlying reliability of the facts. This was a case in which the claimant, as I have already rehearsed at some length, made clear admissions to the relevant offence. The precise detail of the offence may have been in dispute but crucially the claimant admitted two quite separate assaults on a 3-year-old (or possibly 4-year-old) child when she was in temper, those assaults involving a number of blows. I am invited to look at the seriousness of the offence. An assault on a child in the care of a mother is undoubtedly serious, whether charged as an assault occasioning actual bodily harm or, as could easily have been the case, cruelty to a child. This was the sort of case which by reference to Sentencing Guidelines Council guidelines, very easily could have resulted in an immediate custodial sentence. The offence was serious. The seriousness was aggravated in the particular context of the case by the fact that the claimant gave a false name when she was being interviewed. She was not a young person herself, she was 37, and this was a vulnerable child in her care.
34. The commander who took the decision knew not only about the matters set out referable to the caution but also other matters which would be the subject of discretionary disclosure postdating the caution, matters that were known to him at the time he made his decision, and therefore necessary and appropriate for him to consider, as set out at paragraph 9 of his witness statement. I do not need to rehearse them for the purposes of this open judgment. They disclose an unhappy history as between the claimant and her daughter.
35. This was an offence committed in 2007. The lapse of time since the offence has been relatively modest, particularly taking into account the subsequent matters. I accept the defendant's argument that all those criteria are relevant and all of them point to striking the balance between the rights of the claimant and the interests of the community such that the balance comes down in favour of the interests of he community. In those circumstances, in my judgment, the decision made by the Commissioner of Police of the Metropolis was proportionate, it was necessary, and it did not breach the article 8 rights of the claimant, given the provisions of article 8.2 of that provision. In those circumstances, this claim is dismissed.
36. MISS HEWITT: My Lord, that leaves the question of costs. I understand the claimant privately funds this matter and there is no legal aid involved.
37. MR JUSTICE WILLIAM DAVIS: Right.
38. MISS HEWITT: In those circumstances I do have instructions to make an application for an order for costs. I am not in a position to put any figures before the court, and so the application would be for an assessment.
39. MR JUSTICE WILLIAM DAVIS: A detailed assessment?
40. MISS HEWITT: Yes.
41. MR JUSTICE WILLIAM DAVIS: Yes. All right. Do you have anything to say about that?
42. MR AL MUSTAKIM: My Lord, it is discretionary and I would respectfully urge you to exercise discretion not to order costs in this matter. I say that, my Lord, because the issue which is raised is an issue of public importance. It is one where there is no current mechanism whereby one can have a system to challenge the decisions that are made with respect of the intention of disclosure. The only avenue seems to be to come to judicial review. If one is to penalise applicants like that for costs, then for them to come and enforce their rights is going to be discouraged. So I would respectfully urge you that in these circumstances that there be no order for costs.
43. MR JUSTICE WILLIAM DAVIS: I suspect the defendant would say, not least because he is doubtless the most vulnerable to people making these applications: well, actually, if somebody makes an application which has been dismissed, that is the very sort of case where an order for costs should be made so that people think twice before they come here. Otherwise, the Commissioner is going to be footing a rather large bill over the course of the year.
44. MR AL MUSTAKIM: This particular case, my Lord, is slightly different because permission was granted on the application that was made, so it is not that she was then persevering with something. The judge looked at it and he made the order. The other thing, my Lord, is they didn't put in a defence. So when the decision was made by the judge on the papers, they did not put forward a defence. You will see that from the decision of Phillips J.
45. MR JUSTICE WILLIAM DAVIS: That would be a very good argument for not giving them their costs of the acknowledgement of service. Why would it be an argument for not giving them their costs of today and the preparation of today's proceedings?
46. MR AL MUSTAKIM: My Lord, if they had done and they are pursuing those arguments that they are, then at the earlier stage the idea is to prevent, to save costs.
47. MR JUSTICE WILLIAM DAVIS: I understand that, which is why they would not get their costs of preparing the acknowledgement of service; only of today's hearing. Because the counter argument is you had the defendant's skeleton, you had the opportunity to consider the legal position, you should have backed off. I use the vernacular, but I think that is the theory.
48. MR AL MUSTAKIM: My Lord, here they conceded the case.
49. MR JUSTICE WILLIAM DAVIS: I beg your pardon? They conceded what case?
50. MR AL MUSTAKIM: This case, the judicial review. Once permission was given, they conceded the case, and then they decided to change their mind. We got a letter to sat that the case was conceded. But then, some weeks afterwards, they then said: no, we are going to pursue the matter. So the solicitors got a letter to say that they are no longer pursuing this case and that they wish to withdraw. But then they wrote to us formally, so the client was happily thinking: great, I got what I wanted. Then, some few weeks later they decide to change their mind and pursue the matter.
51. MR JUSTICE WILLIAM DAVIS: Right. Can you help me about this?
52. MISS HEWITT: I think there was a period when there was an indication to that effect, and, to some extent, that is what Commander Basu's statement addresses because you will see in part of it, my Lord, that he says: "when these matters were drawn to my attention," he gave a further review, effectively.
53. MR JUSTICE WILLIAM DAVIS: Mm.
54. MISS HEWITT: Then made the enquiries that he refers to there.
55. MR JUSTICE WILLIAM DAVIS: Yes, I see.
56. MISS HEWITT: And the up to date Family Court matter came to his attention, and it was in those circumstances that, as he said in his statement, in the light of that then the original decision must stand.
57. MR JUSTICE WILLIAM DAVIS: I see. All right. Anything else?
58. MISS HEWITT: If it assists, as far as the application for costs is concerned, the way your Lordship put it is exactly right. Of course, if this court is treated as effectively a chance to challenge, with no ramifications in costs, every decision on applications for early deletion, then that has a potentially significant effect on the Commissioner. What I am instructed of course is that costs in this case would be limited to effectively disbursements which would be my involvement and a small amount of costed involvement from the legal department within the Commissioner's. I am not, as I say, unfortunately in a position to put exact figures.
59. MR JUSTICE WILLIAM DAVIS: No. All right.
60. MISS HEWITT: But it is not beyond that. That is what an assessment would be. But I do have instructions to pursue it really not least for the reason your Lordship puts forward to my learned friend, which is in order to mark the fact that the claim is pursued and has not been successful.
61. MR JUSTICE WILLIAM DAVIS: Presumably a detailed assessment would add costs, wouldn't it? Ideally it ought to be a summary assessment?
62. MISS HEWITT: Yes.
63. MR JUSTICE WILLIAM DAVIS: Yes.
64. MISS HEWITT: My instructing solicitor would be happy for you to make an assessment now.
65. MR JUSTICE WILLIAM DAVIS: Well, I don't think that's fair to the claimant. What I am prepared to do is to say I will summarily assess costs on the basis that the defendant will get his costs of today, whatever that is.
66. MISS HEWITT: Yes.
67. MR JUSTICE WILLIAM DAVIS: But you must put that in schedule form so that the claimant has an opportunity to see it and make comment on it. If you forward that to me before the end of term, together with any comments from the claimant, then I shall make an order reflecting what I think is appropriate for today.
68. MISS HEWITT: Thank you very much.