President of the Queen's Bench Division:
This is the judgment of the court.
- In 1990 the claimant pleaded guilty at Sheffield Crown Court to two offences of indecent assault on a child and was sentenced to 2 years imprisonment. In 1996 he pleaded guilty to four offences of indecent assault on a child and was sentenced to 4 years imprisonment. He was placed on the Register of Sex Offenders and will remain on it for life, subject to being able to make from 2013 an application for removal under the new legislative provisions which came into force on 1 August 2012.
- At the end of March 2010, the defendant (the Home Secretary) promulgated a non-statutory scheme known as "The Child Sex Offender (CSO) Disclosure Scheme Guidance Document" (the CSOD Guidance). Following some pilots, the CSOD Guidance set out a Scheme (CSOD Scheme) which it was open to other Chief Constables to introduce nationwide from 1 August 2010. Under the CSOD Scheme members of the public can ask the police to provide details of a person who has some form of contact with children with a view to ascertaining whether that person had convictions for sexual offences against children or whether there is other relevant information about him. It will be necessary to describe the CSOD Guidance in more detail.
- On 2 February 2011, the South Yorkshire Police who had decided to adopt the CSOD Scheme wrote to the claimant to tell him of that fact and that the CSOD Scheme might affect him. On 15 June 2011, the claimant began these proceedings against the Home Secretary and South Yorkshire Police to quash the CSOD Guidance. Prior to the hearing the claim was amended and relief was no longer sought against South Yorkshire Police, although the Chief Constable remained an interested party.
- The two principal grounds on which the CSOD Guidance is challenged are:
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
- Before turning to consider these grounds of challenge to the CSOD Guidance, it is essential to set the CSOD Scheme in the context of the other duties of the police and others in relation to disclosure of previous convictions of child sex offenders and other relevant information about them. There are now in essence four:
i) The duties at common law
ii) 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
- The right and duty of the police to provide information they have acquired about a person's previous convictions to other persons has been long recognised as requiring a balance to be struck between the public interest in disclosing what is necessary to protect the public and the protection of the individual. In R v Chief Constable of North Wales ex p Thorpe  QB 396, a case which concerned the policy of the North Wales police in relation to the disclosure of information about paedophiles, Lord Bingham CJ in this Court formulated the general duty at page 409:
"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."
- Lord Woolf MR, in the Court of Appeal, emphasised the need to consider each case on its own facts. He said at page 428:
"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."
- It was common ground in this application that these legal principles of the common law remain applicable to disclosure under the various schemes, save to the extent modified by Article 8.
(b) The establishment of MAPPA
- Under s.67 the Criminal Justice and Court Services Act 2000, responsible authorities which came to be known as "Multi-Agency Public Protection Arrangements" (MAPPA) were established. The objective was to provide for cooperation in each of the 43 police areas between the police, probation and prison services in the assessment of the risks posed by those convicted of violent and sexual offences and in the management of those risks. A formal mechanism was set out to strengthen this co-operation through a body in each area. The body is referred to in the legislation as the "responsible authority" – police, prison and probation working together - though it is not a statutory body. It is convenient to refer to it as "the MAPPA authority". The provisions of the Criminal Justice and Court Services Act 2000 were re-enacted with amendments by s.325 of the CJA 2003. There have been still further amendments. Amongst the categories of persons covered by MAPPA are those, such as the claimant, who are Registered Sex Offenders.
- Under s.325(8) of the CJA 2003, the Secretary of State for Justice can issue guidance as to how MAPPA authorities are to discharge their functions. By s.325(8A), the MAPPA authorities are to have regard to any guidance given by the Secretary of State when discharging their functions. Version 2 of the Guidance issued in 2007 set out advice on disclosure of previous offences; it is not necessary to refer to it. The current MAPPA Guidance, version 4, was issued in 2012. It is very long document, comprising some 147 pages, excluding the appendices and forms. It requires the systematic collection of information relevant to the risk posed by each offender to which the MAPPA regime is applicable, a regular review of the assessment of that risk on the basis of the available information, and a plan to manage that risk. One available intervention aimed at controlling and reducing opportunities for harmful behaviour as part of the management plan is to disclose information about the offender to third parties (see paragraph 12.22).
(c) The 2007 Home Office Review on the protection of Children from Sex Offenders
- In July 2007 the then Home Secretary published the Home Office Review of the Protection of Children from Sex Offenders. It considered and rejected calls for the introduction of the equivalent of legislative measures in the US known as "Megan's law" under which there is general public access to details of convicted sex offenders living in a particular area.
- Instead it listed a number of actions that should be taken. These included, as "action 3", the imposition of a specific legal duty on MAPPA authorities to consider the disclosure of information about child sex offenders to the public, in addition to the general duties imposed on the MAPPA authorities. "Action 4", proposed the piloting of a scheme for members of the public to receive information about child sex offenders by registering their interest.
(d) s.327A of the CJA 2003: Disclosure of information about child sex offenders
- The first of these actions, "action 3" was implemented by s.140(1) of the Criminal Justice and Immigration Act 2008 which when enacted in July 2008 added a new provision to the CJA 2003 – s.327A. This imposes by s.327A (1) a duty on the MAPPA authority in each area to consider whether to disclose to any particular member of the public "information in its possession about relevant previous convictions of any child sex offender managed by it".
- S.327A (2) and (3) establish a presumption in favour of disclosure to a particular member of the public where the MAPPA authority for the area:
"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."
- It is made clear by s.327A (10) that the section does not affect any other power of any person to disclose any information about a child sex offender.
(e) The MAPPA Guidance on disclosure under s.327A
- The MAPPA Guidance issued in 2012 covers the duties of disclosure imposed by s.327A. Central to the operation of MAPPA are three different levels of management of offenders – level 1 being the lowest and level 3 the highest. An offender is assigned to levels according to risk; for example, a person who is assessed as posing a high or very high risk of serious harm is ordinarily managed at level 2. A Risk Management Plan is required for the offender and he is then usually managed either by the police, prison or probation.
- Those on the Sex Offenders Register are ordinarily managed at level 1, unless a risk assessment results in the offender being assigned to a higher level. The Guidance states that the police are responsible for managing MAPPA offenders at level 1. They are entered on a central database known as ViSOR.
- Section 10 of the MAPPA Guidance summarises "the standards applying to the disclosure of information about a MAPPA offender with a third party." It specifies that the Risk Management Plan for each offender has to identify those at risk of serious harm from the offender and how those risks are to be managed. The MAPPA Guidance states at paragraph 10.4 that, as part of this process, the MAPPA authority:
"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."
- Different standards and guidance are applicable to the three different levels of offender. The Guidance for level 1 cases states (at paragraph 10.6):
"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."
- It is made clear that:
"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).
- The role of the offender in the process is described:
"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 second of the actions of the 2007 Review, "action 4", resulted in four police forces being invited by the Home Office to pilot from September 2008 a scheme the purpose of which exactly replicated action 4 of the 2007 Review - to provide a process where members of the public could register their interest in a named individual. If that individual had child sex offences, there would be a presumption that that information would be disclosed to the relevant member of the public.
- After completion of the pilots, the Home Office announced in late March 2010 that:
"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.
- The CSOD Scheme is described as introducing a principle of "2-way" disclosure in that it invites people to ask about the history of a person who has some form of contact or connection to a child. Concern or suspicion about a person is not a requirement. The aim is summarised in paragraph 2.2:
"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.
- Under the CSOD scheme, disclosure can be made not only of previous convictions, but "any other relevant information deemed necessary to protect children from harm" (see paragraph 4.8).
- The CSOD Guidance sets out in some detail how the CSOD Scheme is to operate. It prescribes in section 5.6 the process in some considerable detail. Where the individual about whom information is requested is the subject of MAPPA, as is the case of those on the Sex Offenders Register such as the claimant, the MAPPA authority makes the decision. Paragraph 5.6.15 to 5.6.16 provide:
"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."
- The CSOD Scheme is briefly described in paragraphs 10.14 - 10.19 of the MAPPA Guidance, version 4, issued in 2012.
(g) ACPO Guidance on Protecting the Public: managing sexual and violent offenders
- In 2010, ACPO (the Association of Chief Police Officers) and the National Police Improvement Agency published lengthy guidance entitled: Guidance on Protecting the Public: managing sexual and violent offenders (the ACPO Guidance). It refers at pages 146 and 147 to sharing information with members of the public. The ACPO Guidance cross refers to the MAPPA Guidance and to the CSOD Scheme, but adds nothing of substance.
(h) Differences between the MAPPA and CSO Disclosure
- The CSOD Scheme is different from the statutory duties placed on MAPPA and is wider in scope:
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
- It was common ground at the hearing that for disclosure under both the MAPPA Scheme and the CSOD Scheme to be lawful, the person deciding to make the disclosure had to conduct a balancing exercise between the interests of protecting children against the rights of the offender under Article 8.
- The first issue related to the question as to whether the Guidance should have specified that the offender, in respect of whom disclosure under the CSOD Scheme was to be made, should have the right to make representations before a decision to disclose was made, and if so the extent of that right. The second issue related to the way in which the CSOD Guidance described the balancing exercise that has to be undertaken.
(1) The extent of the right to make representations
(a) The Guidance given
- The CSOD Guidance does not require any consultation with the offender before his previous convictions are disclosed. All that is required is that:
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)
- We would observe that the last sentence in paragraph 5.6.25 is difficult to reconcile with the assurance given to those who apply to the police for disclosure that their enquiry will be treated as confidential, at least until after any disclosure has been made to them when "the subject of the disclosure may have to be informed that a disclosure has been made to the applicant" (see paragraph 5.2.9). Nonetheless what is significant to the issue before us is that it is only in the case of self disclosure that the CSOD Guidance states that representations against disclosure can be made.
(b) The submissions of the parties
- It was contended by Mr Southey QC on behalf of the claimant, that, unless there were circumstances necessitating urgent action or where disclosure might put the child at risk, the police were under a duty to afford the offender an opportunity to make representations before disclosure was made. That was because in the circumstances, the rights of the offender under Article 8 could only be protected if such a procedural safeguard was afforded. He relied on Simor and Emmerson: Human Rights Practice at paragraph 8.47; Clayton and Tomlinson: The Law of Human Rights: 2nd edition at paragraph 12.344. Mr Southey contended that the recognition of the need for such a safeguard was recognised in the cases about the disclosure of criminal convictions.
- Mr Coppel for the Home Secretary submitted that no such disclosure was necessary in the ordinary case. The fact there was a conviction would not be in dispute. It was for the person making the decision to balance the considerations and rarely would there be any need to seek representations from the offender.
(c) Our conclusion
- The issue before us is whether the CSOD Guidance misstates the legal obligations imposed on the person making the decision to disclose. In our view, it is clear that there will be some circumstances in which there is a duty to seek representations from the offender.
i) In R(L) v Commissioner of Police for the Metropolis  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  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  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.
- We accept that the fact of a conviction will not be in dispute. It will sometimes, though rarely, be the case that the details held will be inaccurate or missing. We also accept the CSOD Scheme requires the person to whom the information is to be disclosed to sign an undertaking in respect of its confidentiality and is warned of the sanctions under the Data Protection Act for breaking that confidentiality.
- Nonetheless in determining whether there should be disclosure, there may well be factors which the decision maker needs to take into account in the balancing exercise and which are not known to the decision maker, but will be known to the offender. Examples in the case of disclosure of a previous conviction would include (1) the consequences to the offender, if disclosure is made, (2) the reasons why, in the circumstances, the offender can in fact pose no risk of harm, let alone serious harm, (3) there might be some clear ulterior motive on the part of those who sought the disclosure or (4) the concerns expressed could be met in some other way.
- In the case of disclosure of information other than previous convictions the decision maker will have to be satisfied as to its accuracy. It is difficult to see in most cases how he could be satisfied in such cases without ascertaining what the offender has to say about that information.
- It was submitted on behalf of the Home Secretary that it was clear from the decision in L that there was no right to make representations in respect of the disclosure of previous convictions. However, first it must be recalled that under the provisions under consideration in L, L (who was required to obtain the certificate which set out the disclosure) wanted to work with children and the employer needed to know. The CSOD Scheme applies to everyone who may come into contact with children. Second, Parliament had made a judgment that the disclosure of previous convictions should be made in the circumstances set out in the Police Act 1997. As we have pointed out at paragraph 29.iii), the CSOD Scheme goes further than Parliament provided for in relation to the MAPPA scheme. The CSOD mandates disclosure if there is simply a risk of harm and disclosure is necessary to protect from harm; Parliament required serious harm in both cases. Third, the CSOD Scheme permits not only previous convictions to be disclosed but other relevant information. Hence L was concerned with a scheme for disclosure which was materially different.
- In the light of the considerations we have set out, it follows, in our judgment, that the CSOD Guidance ought to have set out a requirement that the decision maker consider, in the case of any person about whom disclosure might be made, whether that person be asked if he wishes to make representations. 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.
- Apart from the provision to which we have referred at paragraph 32.iii) above, the CSOD Guidance, despite the detail in which the process is set out, does not refer to the need to consider obtaining representations. The reference in the MAPPA Guidance issued in 2012 to involving the offender will not apply in all cases and is, in any event, not clear enough. The CSOD Guidance, as it presently stands therefore sets out a procedure that in some cases may well result in the protection afforded by Article 8 being rendered nugatory.
- We therefore conclude that the CSOD Guidance sets out a policy and process that in a number of specific cases may well not comply with the applicable legal principles. We were invited by Mr Southey QC to quash the Guidance, but, as this might bring the CSOD Scheme to a temporary halt, it would be disproportionate and risk harm to children to declare the CSOD Scheme unlawful and quash it. Subject to the Court receiving a timetable for amendment to the CSOD Guidance, the court will make a declaration to reflect the conclusion we have set out at paragraph 41. We would invite counsel to agree the precise terms of the declaration; if they cannot, the differences will be resolved by written submissions.
(2) The description of the balancing exercise in the CSOD Guidance
(a) The nature of the dispute
- Mr Southey QC on behalf of the claimant contended that the CSOD Guidance was unlawful as it set out a presumption of disclosure in the passage at the outset of the Guidance which we have set out at paragraph 24 above. It should have, but did not, set out the balancing exercise required. It was therefore unlawful.
- Mr Jason Coppel on behalf of the Home Secretary submitted that the CSOD Guidance set out Guidance which was entirely lawful; the process set out at paragraphs 5.6.15-5.6.16 set out by us at paragraph 26 above was an entirely proper procedure.
(b) Our conclusion
- Although the CSOD Guidance plainly contains the presumption in paragraph 2.2 about which Mr Southey QC rightly complains, a careful reading of the Guidance makes clear that a decision to disclose should only be made after following the detailed procedural guidance set out in section 5. Paragraphs 5.6.15 and 5.6.16 of section 5 make clear how any individual decision should be approached; we have set that out at paragraph 26. There is a general presumption that details of an offender's previous convictions and other information are confidential; the police can therefore only disclose them if (1) disclosure to the applicant is necessary to protect the child from being the victim of a crime by that offender, (2) there is a pressing need for such disclosure, (3) interfering with the rights of the offender under Article 8 is necessary and proportionate and (4) the disclosure is in accordance with the eight principles set out in the Data Protection Act 1998. The third condition includes consideration of the consequences to the offender of disclosure and how much had to be disclosed.
- The presumption set out in paragraph 2.2 of the Guidance 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 as modified by Article 8. It is not therefore necessary to consider whether the presumption set out in paragraph 2.2 can be justified by analogy with the presumption in s.327A of the CJA 2003. We accept that there is a very strong argument that that the presumption in s.327A must be read, by reference to Article 8, as requiring a balancing exercise, but it is not necessary to say any more.
- 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 protections under Article 8 might be rendered nugatory by an application of what it stated in paragraph 2.2, this part of the CSOD 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 at paragraph 43.
- We therefore allow the application to the extent we have indicated at paragraphs 43-48 above.
- Although the content of the various Guidance documents – the MAPPA Guidance, the CSOD Guidance and the Guidance on Protecting the Public: managing sexual and violent offenders are the responsibility respectively of the Ministry of Justice, the Home Office and ACPO, there would seem a great deal to be said for producing one document dealing with the disclosure of the convictions of and other information about a sex offender. What is needed is practical guidance covering the various schemes. There is much less of a risk of the right process not being applied if there is one document which carefully explains the circumstances in which each scheme should be used and provides for more "joining up" of the schemes. We would also observe that it should be possible to do this in a much shorter form than the current guidance.