Scottish Court of Session Decisions

Chief Constable Strathclyde Police, Re Petition of HM for Judicial Review [2003] ScotCS 130 (24 April 2003)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD McCLUSKEY in Petition of H. M. Petitioner; for Judicial Review of a decision and threatened acts the Chief Constable Strathclyde Police       ________________

 

 

Petitioner: Kennedy; Proven & Co.

Respondent: Maguire, Q.C.; Simpson & Marwick, W.S., for First Respondent

24 April 2003

1. On 22 November 2002, the petitioner was questioned by the police regarding allegations that he had engaged in illegal sexual conduct with three young girls. At the conclusion of the interview he was formally arrested. He was charged by the police on 23 December 2002. Early in January 2003 he appeared before the sheriff in private on a petition narrating certain offences. The sheriff granted bail on standard conditions, including a condition that the petitioner keep away from the named girls. Early in April 2003 the petitioner obtained his present job in the Centre described in the productions. The Crown did not seek to have the bail conditions reviewed in order to take account of that new circumstance. The petition narrates that the petitioner's agents received a copy of a letter which the respondent proposed to send to the manager of the Centre. A copy of that letter is contained in the productions, production number 7/5. I need not detail the terms of that because the letter itself is quite short. In effect, I understand it to do little more than to intimate to the manager of the Centre, that the present petitioner has been interviewed by the police and subsequently charged with the said crimes. Full details of the alleged crimes are not given in the letter. No details are given of the precise period covered by the charges, although reference is made to alleged offences "over a period of several months". The letter specifically narrates, "Court proceedings in relation to these charges are not yet complete".
2. Against this background the petitioner seeks declarator that the decision of the Chief Constable to disclose the information which the letter contains to the petitioner's employers is likely to lead to a violation of the petitioner's rights under Articles 3, 6 and 8 of the European Convention on Human Rights. What is sought at present stage is an interim interdict to stop the Chief Constable from sending that letter.
3. The arguments in favour of the petitioner's position are succinctly stated in the petition itself; and Mr Kennedy, who appeared for the petitioner before me today, enlarged upon those arguments. In relation to the alleged breach of Article 3 of the Convention, it was submitted that disclosure of the allegations would amount to inhuman or degrading treatment within the meaning of that Article. Counsel referred me to the well known case of Pretty v United Kingdom reported in 2002, Vol. 35 E.H.R.R. and referred me to paragraph 52 therein. That paragraph contains a definition, or at least a description, of what might constitute inhuman or degrading treatment. The argument was that the effect of sending the letter would be to create a risk of informing the general public of these allegations. The employers were not a public authority and could not be restrained from passing the information on. If the information did become more widely disseminated there were likely to be serious consequences both for the petitioner himself and for other members of his family. It was well known that vigilante activity was not uncommon when it emerged that a person was facing charges in court of molesting small children. The petitioner could be stigmatised. He could also lose his job. Indeed, if he lost his job that could create problems because his income would cease and that might even have an effect at some stage upon his capacity to pay a fine, if the court, having found him guilty, chose to consider such an option. Counsel referred to the fact that when bail was granted there was no special condition that the petitioner should stay away from children other than those mentioned in the petition itself. In response to the submission that there was a breach of Article 3 Miss Maguire, who appeared for the respondent, said that this was plainly not a case that fell within Article 3. There were no facts set out within the petition that brought the case within that Article. In my view there is no prima facie case made under Article 3. Prima facie it appears to me at this stage that that Article does not apply to the circumstances which are averred here. There is no treatment involved in the present case. The sending of the letter in my view does not amount to inhuman or degrading treatment. It simply is an intimation that a person has been charged with a crime. As Mr Kennedy pointed out there is no derogation permitted from this Article. That being so, it is clear that if it were inhuman or degrading treatment to give publicity to the fact that a person had been charged, the press could be guilty of interfering with the Article 3 right every day of the week when they publish that persons have been charged with assorted crimes. In saying that, of course, I recognise that the press are not yet said to be a public authority.
4. The next submission by Mr Kennedy was that there was prima facie a breach of Article 6(2). He developed that argument by referring me to the case of Krause v Switzerland which is conveniently summarised in Harris & O'Boyle at pages 247 and 248. However, what is abundantly clear, and is made clear from that text, is that what constitutes a violation of Article 6(2) is something akin to a formal declaration that the person is guilty of a crime at a stage when he has not been charged, or at least has not been found guilty by an independent and impartial court. Again, in response to that, reference was made by Miss Maguire to the letter. It plainly says no more than that the petitioner has been charged. It also refers to specifically to the fact that the charge has not yet been determined by a court. In my view, therefore, Miss Maguire is right to submit that prima facie there is no breach of Article 6(2).
5. The third Article to which Mr Kennedy drew the court's attention is Article 8. That, because of the Human Rights Act 1998, requires public authorities to respect the private and family life, home and correspondence of every person. Miss Maguire did not dispute that the publication of a statement of the kind contained in the letter could in certain circumstances be construed as a possible violation of the right created by Article 8(1). Accordingly, for present purposes we could proceed on the basis that prima facie there is a violation of Article 8(1). However, Miss Maguire for the respondent maintained that the action which the Chief Constable proposed to take properly fell within the provisions in Article 8(2). That provides:

" that there shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Mr Kennedy did not dispute that the sending of the letter could be construed as being in accordance with the law. Nor did he dispute that it was relevant to take account of the protection of the health and morals and the rights and freedoms of others including children whom the petitioner might meet in the course of his employment at the Centre. The nub of his argument was, however, that a judgment had to be made in the context of the particular facts as to whether or not it was truly necessary in a democratic society to do what was proposed to be done. That involved the concept of proportionality. In effect the court had to make a judgment of the matters which were referred to in the case of de Freitis v The Permanent Secretary for the Minister of Agriculture and Fisheries. Particular reference was made to a dictum of Lord Clyde quoted by Lord Steyn in Regina v The Secretary of State for the Home Dept. ex parte Daly. Mr Kennedy maintained, in accordance with the averments in the petition, that the petitioner was not employed in circumstances in which children were exposed to any risk. His job was essentially in the kitchen and the restaurant and there was no need for a warning of the kind contained in the letter to be sent to the employers. In response to this aspect of the matter, Miss Maguire referred me to the fact that the work that the petitioner was required to do involved not simply working in the kitchen or out of sight of the children. He was also engaged from time to time in feeding the animals and, in any event, like other members of the staff, wore a uniform. She submitted that children would tend to trust uniformed persons whom they encountered in premises such as this Centre. She also maintained that customers generally, including the parents, would be entitled to assume that employees wearing uniforms of the enterprise and working in the public areas were people that could be trusted as being fit to be there. She also maintained that the petitioner had in fact chosen to apply for this position. She said that the Chief Constable would not have written such a letter had the petitioner chosen to seek and obtain employment where he was not likely to be involved with young children at all. She referred me in detail to the terms of the tape recorded interview dated 22 November 2002. She was not maintaining that this court had to make any judgment about the contents of that document. Indeed Mr Kennedy maintained that it might not be admissible in evidence. However Miss Maguire's contention was that it was material that the Chief Constable had to take into account when making his assessment of what action was appropriate in terms of the potential risk to the public including children. All she maintained about the behaviour described both at the interview and in the petition itself was that that behaviour involved some element of premeditation, some element of the petitioner inducing the children to engage in illegal sexual behaviour and possibly using threats to the girls. These were all matters, she maintained, that were highly relevant to the Chief Constable's assessment of his position.

6. Both counsel were agreed that at this stage the court had to form a view as to whether or not there was prima facie a breach of the right created by Article 8. It also is necessary to form a view as to the likely impact of Article 8(2) in the circumstances. It appears to me that a judge sitting as I am hearing representations at a time when the matters of fact which may be in issue cannot possibly be resolved has simply to make the best judgment he or she can having regard to the likely effects of the sending of the letter. My judgment is that having regard to the material which was before the Chief Constable and his officers and having regard to the risk that that material suggested existed towards other children and having regard also to the character of the job which the petitioner has taken and the opportunities which that work presents to him, it was not unreasonable for the Chief Constable to make a judgment that the employer should be informed. It appears to me however that the letter itself is capable of some amendment. I raised this matter with Miss Maguire in the course of the proceedings and I understand that she is prepared to alter it in the following sense. In the fourth paragraph the first few words would be as follows

"I must stress that this information is provided to you in the strictest confidence and it should not be disclosed further."

The words from "unless" to the end of the sentence would then be deleted. At the end of the paragraph, after the word "safety" there would be inserted words such as:

"If, however, you feel that it may be necessary to make any further disclosure in order to protect any individual then you should first communicate with our local divisional commander."

7. In the light of the judgment I have made on the material before me I conclude that a letter sent in these terms would not prima facie breach the rights of the petitioner under any of the Articles and in particular under Article 8. I shall accordingly decline to grant the interim interdict which is sought in terms of the petitioner. I shall, however, order intimation to the parties specified in the schedule for service, although I understand that because they have caveats lodged in the Court of Session they are already aware of these proceedings and have chosen not to take part.
8. After I had intimated the conclusion which I had reached in the light of the submissions Mr Kennedy quite properly sought leave to reclaim in terms of paragraph 38.4(4) of the Rules of Court. Miss Maguire took no strong position against the granting of leave. However she did point out that the granting of leave would have the effect that the letter would not in fact be sent and that therefore several weeks might pass before the letter could be sent.
9. In the light of those considerations and in the light of my decision as to the terms of the letter itself and the interests which I have had to consider and to balance, it seems to me that if this letter is to be sent it ought to be sent at once. In these circumstances I have decided to refuse to grant leave. Accordingly leave is refused.