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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> A, R (On the Application Of) v Secretary of State for the Home Department  EWCA Civ 597 (21 April 2016)
Cite as:  EWCA Civ 597
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ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE DINGEMANS)
Strand, London, WC2A 2LL
B e f o r e :
Lady Justice Hamblen
Lord Justice Longstaff
| R. (on the application of A)
- and –
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
WordWave International Limited trading as DTI
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
Mr J Moffett (instructed by Government Legal Department) appeared on behalf of the Respondent
Hearing date: 10 February 2016
Crown Copyright ©
"... comply with the law, must be necessary for public protection, and must be proportionate."
"The likelihood and degree of harm which may arise as a result of the disclosure, including the potential impact on the offender, must be assessed. Information should be disclosed only where this is a necessary and proportionate step to protect the public."
"Seeking representations should be the norm, but there might be occasions where it is not possible or safe to seek representations."
"It appears from the introduction to the CSOD scheme guidance document ... that in June 2006 the Secretary of State for the Home Department commissioned a review of child sex offender arrangements for protecting the public. It was decided to strengthen MAPPA and to introduce a pilot scheme in relation to the disclosure of information relating to sex offenders. The scheme was piloted in four police areas from September 2008 until September 2009. That showed that there were a manageable number of inquiries; 12 inquiries, seven applications, and one disclosure on average in each police area each month. Reports indicated that police officers considered that the disclosure scheme had tightened up procedures and given clarity about what the public could expect. Reports indicated that offenders were worried about negative reactions at the start but by the end of the pilots considered that this was an extension of existing schemes."
"1. An application for disclosure must relate to a specific subject and to a specific child or specific children (paragraphs 3.2, 4.3, 4.6, 5.2.5).
2. A disclosure will only be made if a specific child is, or specific children are, at risk (paragraph 4.7).
3. Before any disclosure is made the applicant's identity and good faith will be verified (5.2.2, 5.2.5).
4. Decision makers are expressly reminded that all stages laid down by the guidance should be followed and they are consistently cross-referred to the three stage test that must be applied (2.2, 3.3, 5.6.22) [I will return to the three stage test].
5. Further, decision makers are expressly reminded that any disclosure must be in accordance with the subject's Convention right (3.5, 5.6.15).
6. A decision as to whether to make a disclosure is taken only after a full risk assessment has revealed concerns about the subject (5.4).
7. If concerns are raised about the subject, before reaching a decision as to whether to make a disclosure the decision maker must consider whether to seek representations from the subject (5.5.4). Further, the applicant for disclosure must be informed that such representations might be sought (5.2.9).
8. Where the subject is managed under MAPPA [as is the case with the appellant] the decision as to whether a disclosure should be made will ordinarily be taken at a MAPPA meeting (5.6.13).
9. When deciding whether to make a disclosure the decision maker must apply a three stage test which expressly directs the decision maker to balance the risk to the child against the potential consequences for the subject (5.6.14, 5.6.15) [I will return to those paragraphs].
10. A disclosure will only be made to a person who is in a position to use the information in order to safeguard the relevant child or children and therefore even if a disclosure is appropriate it might not be made to the applicant (2.2, 4.3, 4.8, 5.1.3, 5.5.5, 5.6.22).
11. The person to whom a disclosure is made will be told that the information disclosed can only be used for the purposes of safeguarding children and that person will be asked to give an undertaking to keep the information confidential (5.2.11, 5.2.12, 5.6.24)."
"5.6.14 ... [decision makers] must ensure that the three stage test set out below (5.6.15) is satisfied before a decision to disclose any information is made.
5.6.15. There is a general presumption that details about a person's previous convictions are confidential. The police will only be disclosing convictions or indeed intelligence lawfully under the CSO disclosure scheme if:i. they have the power to disclose the information. If they are relying on their common law powers, the police must be able to show that it is reasonable to conclude that such disclosure is necessary to protect the public from crime. In the context of this scheme, the police would have to conclude that disclosure to the applicant is necessary to protect a child from being the victim of a crime (most probably, sexual abuse committed by the subject of the request);ii. that there is a pressing need for such disclosure; andiii. interfering with the rights of the subject (under Article 8 of the European Convention of Human Rights) to have information about his/her previous convictions kept confidential, is necessary and proportionate for the prevention of crime (or in the interests of public safety or for the protection of morals or the rights and freedoms of others). This involves considering the consequences for the subject if his/her details are disclosed against the nature and extent of the risks that subject poses to the child or children. The police should also consider the risk of driving the subject to become non-compliant where he/she may pose a greater risk to other children. This stage of the test also involves considering whether further information should be sought from the subject (see paragraph 5.5.4) and the extent of the information which needs to be disclosed eg the police may not need to tell the parent the precise details of the offence for that parent to be able to take steps to protect the child.
5.6.14. Information about a person's previous convictions is also sensitive, personal data under the Data Protection Act 1998 and therefore the police must also be satisfied that disclosure is in accordance with the eight principles set out in that Act ..."
"It is declared that the terms of the Child Sex Offender Disclosure scheme guidance are unlawful insofar as it does not include a requirement that the decision maker consider, in the case of any person about whom disclosure should be made pursuant to the scheme, whether that person be asked if he wishes to make representations in order to ensure that the decision maker has all the information necessary to conduct the balancing exercise he is required to perform justly and fairly."
"If the application raises 'concerns', the police must consider if representations should be sought from the subject to ensure that the police have all necessary information to make a decision in relation to disclosure."
"47. The presumption set out in paragraph 2.2 of the guidance [that is, in favour of disclosure in certain circumstances] read on its own may be difficult to sustain as lawful. However it is not necessary to consider that issue as the detailed process set out at paragraph 5.6.15-16 is careful and clear as to the process which must be followed. Subject to the issue on giving the offender the opportunity to make representations, the process there set out is unexceptionable and complies with the principles stated in ex parte Thorpe  QB 396 as modified by Article 8 ...
48. As the presumption set out in paragraph 2.2 of the guidance is given prominence under the heading 'Aims', it would seem to us that, to avoid the risk that the productions under Article 8 might be rendered nugatory by an application of what it stated in paragraph 2.2, this part of the guidance must be revised to make clear that the detailed application of the process is contained in section 5 of the CSOD guidance. It will not be necessary to make any declaration or grant other relief to that effect, if the Home Secretary includes this amendment within the timetable we have requested ..."
"The basis on which disclosure decisions are made is described in detail in section 5 below (in particular, see the legal considerations in paragraphs 5.6.15 and 5.6.16)."
"The Strasbourg Court considers that the possibility of reviewing the retention of sensitive personal information and notification requirements in respect of such information is highly material to the question of whether such retention and notification requirements are proportionate and thus compliant with Article 8."
"It is difficult to see why the same approach should not apply to disclosure."
"The court recognises that there may be a need for a comprehensive record of all cautions, convictions and even other information. However, the indiscriminate and open-ended collection of criminal record data is unlikely to comply with the requirements of Article 8 in the absence of clear and detailed statutory regulations clarifying the safeguards applicable and setting out the rules governing, inter alia, the circumstances in which data can be collected, the duration of their storage, the use to which they can be put and the circumstances in which they may be destroyed."
"The guidance explains that in this context a balancing exercise must be carried out, but specific information regarding the scope of the discretion to disclose and the factors which are relevant to the exercise of such powers in the context of disclosure of criminal record information is not provided."
"The court highlights the absence of a clear legislative framework for the collection and storage of data and the lack of clarity as to the scope, extent and restrictions of the common law powers of the police to disclose caution data. It further refers to the absence of any mechanism for independent review of a decision to retain or disclose data under common law police files."
"In my judgment the statements of the European Court of Human Rights in MM of which Miss Simor [Mr Southey's predecessor] relied were not statements of general principle which might be taken into account by this court under the provisions of the Human Rights Act. The statements in MM were statements made on the facts of the particular case of MM. The European Court of Human Rights has never held that the police are restricted to exercising statutory powers if they are to show that they are acting in accordance with the law. The common law provides a sufficiently certain source of powers in this case. Reports show that there had been an increased consistency of practice following the production of the CSOD scheme; see paragraph 45 above."
"The communication of data to private parties should only be permissible if, in a particular case, there exists a clear obligation or authorisation, or with the authorisation of the supervisory authority."
"In the generality of cases without that person being afforded such an opportunity, the decision maker might not have all the information necessary to conduct the balancing exercise which he is required to perform justly and fairly. Whilst each case will turn on its own facts, it is difficult to foresee cases where it would be inappropriate to seek representations, unless there was an emergency or seeking the representations might itself put the child at risk."
"In the event that the subject has convictions for sexual offences against children, poses a risk of causing harm to the child concerned and disclosure is necessary to protect the child, there is a presumption that this information will be disclosed."
I would add only this in respect of the second of Mr Southey's propositions: that the occasions upon which it might be appropriate to exercise a discretion not to seek representations are spelt out in some detail in paragraph 10.1.3 of the MAPPA guidance. It is unnecessary for present purposes to spell that out, but merely to observe that that guidance which Mr Southey contended should be read together with the disclosure scheme under challenge before us, of which it forms in these circumstances part, emphasises that seeking representations should be the norm but need not always be the case.
With those observations, I agree entirely with my Lord's judgment.