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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> X (South Yorkshire) v Secretary of State for the Home Department & Anor [2012] EWHC 2954 (Admin) (24 October 2012) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2012/2954.html Cite as: [2012] EWHC 2954 (Admin), [2013] 1 WLR 2638, [2013] WLR 2638 |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
LEEDS |
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B e f o r e :
and
MR JUSTICE HICKINBOTTOM
____________________
X (South Yorkshire) |
Claimant |
|
- and - |
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Secretary of State for the Home Department |
Defendant |
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and Chief Constable of South Yorkshire |
Interested Party |
____________________
Jason Coppel
(instructed by Treasury Solicitor) for the Respondent
The interested party did not appear
Hearing date: 26 July 2012
____________________
Crown Copyright ©
President of the Queen's Bench Division:
Introduction
This is the judgment of the court.
1. Background
i) The CSOD Guidance sets out inadequate procedural safeguards for an offender in respect of whom disclosure is to be made, as the offender is not given the opportunity to make representations.
ii) The CSOD Guidance misstates the test that the police must apply in deciding whether to make disclosure.
2. The various regimes for the disclosure of information about child sex offenders
i) The duties at common lawii) The general obligations under MAPPA (which are described at paragraphs 9 and following)
iii) The specific obligation introduced in July 2008 by s.327A of the Criminal Justice Act 2003 (CJA 2003).
iv) The CSOD Scheme introduced at the end of March 2010.
(a) The applicable legal principles at common law
"When, in the course of performing its public duties, a public body (such as a police force) comes into possession of information relating to a member of the public, being information not generally available and potentially damaging to that member of the public if disclosed, the body ought not to disclose such information save for the purpose of and to the extent necessary for performance of its public duty or enabling some other public body to perform its public duty…. The principle, as I think, rests on a fundamental rule of good public administration, which the law must recognise and if necessary enforce.
It seems to me to follow that if the police, having obtained information about an individual which it would be damaging to that individual to disclose, and which should not be disclosed without some public justification, consider in the exercise of a careful and bona fide judgment that it is desirable or necessary in the public interest to make disclosure, whether for the purpose of preventing crime or alerting members of the public to an apprehended danger, it is proper for them to make such limited disclosure as is judged necessary to achieve that purpose.
While it is permissible for a public body to formulate rules governing its general approach to the exercise of a discretion, it is essential that such rules should be sufficiently flexible to take account of particular or unusual circumstances, and in a situation such as the present, where the potential damage to the individual and the potential harm to members of the community are so great and so obvious, it could never be acceptable if decisions were made without very close regard being paid to the particular facts of the case. The consultation of other agencies, assuming that time permits, is a valuable safeguard against partial or ill-considered conclusions."
"However, in doing this, it must be remembered that the decision to which the police have to come as to whether or not to disclose the identity of paedophiles to members of the public, is a highly sensitive one. Disclosure should only be made when there is a pressing need for that disclosure. Before reaching their decision as to whether to disclose the police require as much information as can reasonably practicably be obtained in the circumstances. In the majority of the situations which can be anticipated, it will be obvious that the subject of the possible disclosure will often be in the best position to provide information which will be valuable when assessing the risk."
After referring to Article 8 of the Convention, Lord Woolf continued at page 429:
"The fact that the convictions of the applicants had been in the public domain did not mean that the police as a public authority were free to publish information about their previous offending absent any public interest in this being done. As Lord Bingham C.J. stated, before this happens it must at least be a situation where in all the circumstances it is desirable to make disclosure. Both under the Convention and as a matter of English administrative law, the police are entitled to use information when they reasonably conclude this is what is required (after taking into account the interests of the applicants), in order to protect the public and in particular children."
(b) The establishment of MAPPA
(c) The 2007 Home Office Review on the protection of Children from Sex Offenders
(d) s.327A of the CJA 2003: Disclosure of information about child sex offenders
"has reasonable cause to believe that—
(a) a child sex offender managed by it poses a risk in that or any other area of causing serious harm to any particular child or children or to children of any particular description, and
(b) the disclosure of information about the relevant previous convictions of the offender to the particular member of the public is necessary for the purpose of protecting the particular child or children, or the children of that description, from serious harm caused by the offender."
(e) The MAPPA Guidance on disclosure under s.327A
"must consider in each case whether disclosure of information about an offender to others should be made to protect victims, potential victims, staff, and other persons in the community. This applies to all categories and levels of MAPPA cases. The overriding factor is the need to protect the public and safeguard children."
"10.6 Cases being managed at level 1 must be reviewed in line with the lead agency's policy. Part of the review will consider disclosure. It is not necessary to inform the MAPPA Co-ordinator about disclosure decisions for level 1 offenders, but details must be recorded on the lead agency's system and must be made available if required. A decision to disclose to a third party may result in a referral for level 2 or level 3 multi-agency management."
"Disclosure of the details of MAPPA offenders to a third party must comply with the law, must be necessary for public protection, and must be proportionate."
A summary of the law is provided and criteria set out as to proportionality (see paragraphs 10.11 and 10.12).
"10.13 It is preferable that the offender knows that disclosure is taking place. On occasion, the offender may make the disclosure himself or herself in the presence of the police or the Offender Manager, or may later confirm or verify the content of the disclosure. However, there will be cases where informing the offender that disclosure is taking place could increase the potential risks to the victim(s) or other individuals. In those cases, informing the offender may not be appropriate. In such circumstances, the person receiving the disclosure should be told that the offender does not know that disclosure has been made."
(f) The introduction of the CSOD Scheme
"the Government is commencing the roll out the Child Sex Offender Disclosure Scheme nationally with the first phase of forces 'going live' from 1st August 2010."
As the CSOD Scheme was not statutory and as the Home Secretary had no power under our constitution to tell Chief Constables to adopt it, it was adopted voluntarily by all Chief Constables. A further announcement was made by the Home Secretary about the roll out in August 2010.
"Under the CSO Disclosure Scheme anyone can make an application about a person (subject) who has some form of contact with a child or children. This could include any third party such as a grandparent, neighbour or friend. This is to ensure any safeguarding concerns are thoroughly investigated. A third party making an application would not necessarily receive disclosure as a more appropriate person to receive disclosure may be a parent, guardian or carer. 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. Under the CSO Disclosure Scheme, disclosure will only be made to a parent, carer or guardian but outside of the process, disclosure may be made to others. In any event disclosure may not always be to the original applicant." (emphasis added)
The words emphasised were, no doubt, meant to reflect s.327A (2) and (3) to which we have referred at paragraph 14 above, but the words are, as we explain at paragraph 29.iii) below, materially different.
"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; and
(iii) interfering with the rights of the offender (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 offender if his/her details are disclosed against the nature and extent of the risks that offender poses to the child or children. The police should also consider the risk of driving the offender to become non-compliant where he/she may pose a greater risk to other children. This stage of the test also involves considering the extent of the information which needs to be disclosed e.g. you 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.
5.6.16 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 (see Appendix H for details of these principles and guidance on how they can be practically applied."
(g) ACPO Guidance on Protecting the Public: managing sexual and violent offenders
(h) Differences between the MAPPA and CSO Disclosure
i) The MAPPA scheme is statutory. The CSOD scheme is not.ii) The MAPPA scheme is applicable to all MAPPA authorities who must have regard to the statutory guidance. It is for individual police forces to decide whether to adopt the CSOD Scheme and how to implement it. Each Chief Constable is therefore responsible for the CSOD Scheme and its implementation in the particular police area.
iii) The MAPPA Scheme applies to providing disclosure where there is a risk of serious harm to children and disclosure can only be made if it is necessary to protect from the risk of serious harm. The CSOD Scheme does not require serious harm, only harm.
iv) The MAPPA Scheme is directed at the management of the risk caused by the offender and the giving of disclosure in that context. The CSOD Scheme is aimed at giving a right to the public to obtain disclosure.
v) There is a statutory presumption of disclosure under s.327A of the CJA 2003 (which provides for the duties under the MAPPA Scheme) if the statutory criteria are met. There is also a presumption of disclosure in the CSOD Scheme; the lawfulness of that presumption was the second main issue argued before us - see paragraphs 44 and following.
vi) S.327A of the CJA 2003 provides only for the disclosure of relevant previous convictions; the CSOD scheme permits the disclosure of other relevant information.
3. The issues
(1) The extent of the right to make representations
(a) The Guidance given
i) Each offender is told of the scope of the scheme at the outset. The CSOD Guidance provides:
"3.8 Engagement with Registered Sex Offenders
Prior to implementation, it is vital that the remit of the Scheme is effectively communicated to [Registered Sex Offenders] residing in the area and those being released from prison into the area. The provision of information and reassurance about the Scheme's remit is vital to minimising the risk of their going 'underground' and not complying with their supervision requirements. [Registered Sex Offenders] should be regularly updated about the Scheme to ensure that key messages are continually embedded."
It was this provision that prompted the letter from the South Yorkshire Police to the claimant to which we have referred at paragraph 3. The letter did not seek any observations that the claimant might have about disclosure. It merely informed him of the CSOD Scheme and that his previous convictions might be disclosed under the Scheme.
ii) Consideration is given to informing the offender, before disclosure is made, that it is taking place. The CSOD Guidance provides:
"5.6.19: Before disclosure is made either about the subject's convictions or other offending or intelligence then consideration should be given to whether it is necessary to inform the subject of the disclosure that it is taking place. The MAPPA meeting/safeguarding strategy meeting/discussion or case conference should make a decision on this when deciding whether disclosure should occur."
iii) If the offender is to be involved in making disclosure, the offender can in such circumstances make representations.
"5.6.25. There may be occasions when it may not be appropriate to inform the subject that the disclosure is taking place (premised on an assessment of risk). On occasion, it may also be appropriate to involve the subject in 'self-disclosure'. This may be by the subject making the disclosure to the applicant/carer in the presence of the officer/police staff member. Alternatively it may involve the subject making the disclosure to the applicant/carer themselves and the officer/staff member then confirming the relevant facts have been disclosed with the applicant/carer. Involving the subject in the disclosure may facilitate their understanding of the risk they pose of causing harm to a child and allow the subject to be part of their own offender management. It also enables the subject to object and provide reasons why the information should not be disclosed." (emphasis in bold type added)
(b) The submissions of the parties
(c) Our conclusion
i) In R(L) v Commissioner of Police for the Metropolis [2010] AC 410, the claimant had applied for an enhanced certificate under Part V of the Police Act 1997. That part of the Act established the statutory scheme administered by the Criminal Records Bureau to ascertain whether a person seeking certain types of employment or having other contact with children had either a criminal record or there existed other relevant information about his or her behaviour. Although the claimant had no previous convictions, information was disclosed about her placement on the child protection register and the allegations which led to this. The Supreme Court apart from concluding that the provisions and its operation were compatible with Article 8 and proportionate, also considered the right to make representations. Lord Hope said at paragraph 46 in relation to what was in issue, namely the disclosure of the other information:"In cases of doubt, especially where it is unclear whether the position for which the applicant is applying really does require the disclosure of sensitive information, where there is room for doubt as to whether an allegation of a sensitive kind could be substantiated or where the information may indicate a state of affairs that is out of date or no longer true, chief constables should offer the applicant an opportunity of making representations before the information is released. In R (X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65 at paragraph 37 Lord Woolf CJ rejected Wall J's suggestion that this should be done on the ground that this would impose too heavy an obligation on the Chief Constable. Here too I think, with respect, that he got the balance wrong. But it will not be necessary for this procedure to be undertaken in every case. It should only be resorted to where there is room for doubt as to whether there should be disclosure of information that is considered to be relevant. The risks in such cases of causing disproportionate harm to the applicant outweigh the inconvenience to the chief constable."Lord Neuberger drew a clear distinction between the disclosure of information about previous convictions where there could be little doubt as to its accuracy and disclosure of other information. He said at paragraph 82:"In a nutshell, as Lord Hope has said, the issue is essentially one of proportionality. In some, indeed possibly many, cases where the chief officer is minded to include material in an ECRC on the basis that he inclines to the view that it satisfies section 115(7)(b), he would, in my view, be obliged to contact the applicant to seek her views, and take what she says into account, before reaching a final conclusion. Otherwise, in such cases, the applicant's article 8 rights will not have been properly protected. Again, it is impossible to be prescriptive as to when that would be required. However, I would have thought that, where the chief officer is not satisfied that the applicant has had a fair opportunity to answer any allegation involved in the material concerned, where he is doubtful as to its potential relevance to the post for which the applicant has applied, or where the information is historical or vague, it would often, indeed perhaps normally, be wrong to include it in an ECRC without first giving the applicant an opportunity to say why it should not be included."ii) In H and L v A City Council [2011] EWCA Civ 403, a convicted sex offender challenged the decision of a City Council to disclose details of his offence to other persons. One of the complaints made was that the decision was made without giving the offender an opportunity of commenting. The Court of Appeal held that in the circumstances both the common law and the requirements of Article 8 required the Council to give the offender the opportunity to comment: see paragraphs 49-52 and 69.
(2) The description of the balancing exercise in the CSOD Guidance
(a) The nature of the dispute
(b) Our conclusion
Conclusion
Observations