[View without highlighting]
[Printable RTF version]
||Neutral Citation Number:  EWHC 144 (Admin)
||Case No: CO/4171/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
B e f o r e :
MR JUSTICE JULIAN KNOWLES
- and -
UNIVERSITY OF WOLVERHAMPTON
- and -
OFFICE OF THE
- and -
GENERAL PHARMACEUTICAL COUNCIL
Ramby de Mello and Tony Muman (instructed by Bhatia Best) for the Claimant
Aileen McColgan (instructed by Weightmans LLP) for the Defendant
Nicola Greaney (instructed by Capsticks LLP) for the Intervenor
The Interested Party did not appear and was not represented
Hearing dates: 14 and 15 December 2017
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Julian Knowles:
Table of contents
|The factual background
|The statutory framework
|Rehabilitation of offenders
|Enhanced criminal record checks and DBS certificates
|Statutory regulation of the pharmacy profession
|The parties' submissions
|Was the University entitled to require HA to disclose his spent convictions and to require him to obtain an ECRC ?
|Was the question asked of HA on the application form invalid for failure to refer specifically to the Exceptions Order ?
|Did the requirement on HA to disclose his spent convictions and obtain an ECRC infringe his rights under Article 8 of the Convention ?
|Was the decision to exclude HA from the MPharm course in accordance with law and a disproportionate interference with his rights under Article 8(1), or otherwise unlawful ?
- At the heart of this application for judicial review is the question whether a university may lawfully ask an applicant for an accredited Master of Pharmacy degree course ('MPharm') whether he or she has spent and unfiltered convictions and whether the university can require him or her to undergo an enhanced criminal record check as part of the application process.
- The Claimant, HA, was granted permission by His Honour Judge Purle QC (sitting as a Deputy High Court judge), to challenge the decision of the Defendant, the University of Wolverhampton ('the University'), to exclude him from the MPharm course because of two criminal convictions he received aged 15 which he failed to declare when he applied for the course. The decision was taken by the University's Fitness to Practice Panel (FtPP) on 8 February 2017 and was upheld on appeal by the University's Academic Registrar. HA complained to the Office of the Independent Adjudicator ('the OIA'), which rejected his complaint on 21 July 2017. This application for judicial review followed.
- The OIA was served with these proceedings as an Interested Party, but has chosen not to take part. The General Pharmaceutical Council ('the Council'), which is the statutory regulator for the pharmacy profession, was granted permission to intervene. The purpose of the Council's intervention was so it could assist the court in terms of its processes and the rationale behind it requiring universities to carry out character checks on prospective students for the MPharm course.
- Because this case involves HA's juvenile criminal convictions, I made an order under CPR r 39.(4)(2) that his name not be published in connection with these proceedings. He will therefore be anonymised in this judgment as 'HA'.
- At the hearing before me HA was represented by Mr Ramby de Mello and Mr Tony Muman. The University was represented by Ms Aileen McColgan. The Council was represented by Ms Nicola Greaney.
The factual background
- HA is now 21 years of age (date of birth 6 December 1996). He lives with his parents and siblings in Birmingham.
- In 2012, when he was 15, HA was convicted of robbery (contrary to s 8 of the Theft Act 1968) and assault occasioning actual bodily harm (contrary to s 47 of the Offences Against the Person Act 1861). Both offences were committed when he was 14. The assault was committed on 21 July 2011 and he was convicted at Birmingham Youth Court on 1 February 2012. He was given a youth rehabilitation order, and was ordered to pay compensation of £400 and was made subject to a curfew. He told the FtPP that the assault was a fight at school in which he knocked another student's tooth out. The robbery was committed on 31 May 2011. He told the FtPP that he was part of group which had robbed two youths of a credit card and phone in a park. He was convicted of robbery at the same court on 29 February 2012. Again, he was given a youth rehabilitation order, was ordered to pay compensation of £200 and was made subject to a curfew. A letter from his supervising probation officer indicates that he made excellent progress in relation to the youth rehabilitation orders, and they were revoked early.
- After these events, HA completed his GCSEs and A-Levels and in due course applied to study, and was admitted on, the MPharm course at the University of Wolverhampton commencing in autumn 2016.
- As part of the application process for the MPharm course, HA had to complete various online forms. One of these was a form which required disclosure of criminal convictions, and other matters, such as any health conditions which might impair his fitness to practice. Under the heading 'Criminal records', the form stated:
"This course, like the profession of pharmacy, is exempt from the Rehabilitation of Offenders Act because it might involve close working with children or vulnerable adults. You are therefore required to declare any convictions, cautions or binding overs even if they would otherwise be regarded as 'spent'.
Please note that a positive declaration will not necessarily exclude you from the course. However, a false declaration may result in your removal from the course."
- The question was then asked, with boxes marked 'Yes' and 'No' immediately following:
"Have you ever been convicted, or received a caution, warning or final reprimand, for an offence that will be not be filtered from the Police National Computer when it is processed by the DBS ?"
- HA completed the form and answered this question 'No'.
- The form continued:
"If you are unsure what filtering is, or which offences qualify for filtering, you may wish to talk to us about this or seek further guidance at http://hub.unlock.org.uk/knowledgebase/filtering-cautions-convictions"
- The web address linked through to the website of an organisation called 'Unlock' and provided further information about what does and does not have to be disclosed when spent convictions are required to be disclosed. In summary, filtering refers to the changes to the disclosure regime which were considered by the Court of Appeal in R (P) v Secretary of State for the Home Department  2 Cr App R 12. As I explain further below, the disclosure scheme, as originally implemented by the Police Act 1997, required the DBS to issue a criminal record certificate, upon request, disclosing all of a person's convictions and cautions, whether current or spent. In R(T) v Chief Constable of Greater Manchester  AC 49, the scheme was found to be capable of violating Article 8 of the European Convention on Human Rights ('the ECHR') on the grounds that, not being based on any rational assessment of risk, it went further than was necessary to accomplish the statutory objective, was disproportionate, and was not necessary in a democratic society. The scheme was then revised pursuant to the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 (SI 2013/1200), so that, subject to a significant number of exceptions, spent convictions and cautions did not have to be disclosed.
- It was common ground before me that HA's convictions, although they were spent (by virtue of s 5(4)(da) of the Rehabilitation of Offenders Act 1974) ('the 1974 Act'), would not have been filtered. As I will develop later in this judgment by reference to the statutory provisions, that was because of their proximity in time to HA's date of application to the University; because of their nature; and because there was more than one of them.
- HA's explanation for not disclosing his convictions was as follows. First, he told the FtPP that when he went to college aged 16 to study for his A-Levels he had sought advice from his probation officer about whether he would be required to disclose his convictions when he applied to go to university. He said that he was told that he would not have to. His explanation to the panel was as follows (sic):
"Firstly, I must start by, you know, declaring my previous record. This is because you know before I started college. I wanted to become, I wanted like a pharmacy or dentist, before I wanted to do. I asked my probation officer if I'm allowed to go to Uni cause my dad told me that it will affect my chances to go to Uni so before college I went to my probation officer and I asked him how long would it stay on my record. He said it's come off as in he won't show in University because it's a minimum of five years or something and it comes off. So in my mind I was thinking I had nothing on my record and so when I applied for the University, I applied through Clearing so yes they've come a bit late and I was in a rush, cause it was the only Uni that gave me an offer and I was, I obviously rushed it to be honest, I didn't really read it properly as in I thought in my mind that it's not going to come up so I just clicked no and moved on. So yes that's about it to be honest and that's concerning that part."
- Later, in response to questions, HA said that he did not tell the probation officer that he was considering a pharmacy course.
- HA's convictions came to light following an induction lecture at the start of the semester in September 2016. The students were told that disclosure of all convictions was necessary, including those which were spent. Following the lecture, HA approached the lecturer (David Gay) and there was a conversation about the fact that he had a conviction. Mr Gay's evidence to the FtPP was that HA mentioned one conviction at that stage. Mr Gay said that he declined to discuss the matter further at that point because the certificate from the Disclosure and Barring Service ('DBS') would be received by the University shortly afterwards, which would include the full information.
- On 7 November 2016, following a second meeting with Mr Gay, HA's case was referred by Mr Gay to the Faculty of Science Fitness to Practice Suitability Panel. By then HA had supplied a written statement containing details of his convictions.
- On 16 November 2016 the Suitability Panel convened to consider the Claimant's suitability to undertake the course and decided that the case should be referred to the FtPP. The minutes of the meeting record Mr Gay as having said that HA had only mentioned the robbery after the lecture and that he had not mentioned the assault. He said that HA's statement had not given much detail and he had asked to provide a more detailed statement, but no further statement had been received. The minutes also record that the Panel felt that 'they were not being given the complete story'.
- On 21 November 2016 HA sent Mr Gay a statement about his convictions and a character reference.
- The FtPP hearing took place on 31 January 2017. The members of the FtPP were: Dr Raoul Sutton, Associate Dean, Faculty of Science and Engineering (Chair); Dr Andrew Cooper, Associate Dean, Faculty of Arts; and Yvonne Wilding, the CEO of Adam Myers Pharmacies.
- At the hearing Mr Gay acting as a senior representative from the Faculty presented the case on its behalf. He gave evidence and HA had the opportunity to ask him questions. HA also had the opportunity to present his case to the FtPP and he answered a number of their questions. Mr de Mello complained about Mr Gay's role in presenting the case for the University given his role as (in effect) the investigator, but there was nothing unfair or improper about him acting in that role, provided that HA was given the opportunity to question him, which he was.
- By a decision dated 8 February 2017 the FtPP decided that HA had failed to meet the principles of the Student Code of Conduct for Pharmacy Students and that his fitness to practice was impaired, such that he would be permanently excluded from the course and not allowed to apply for any other professional programme at the University.
- The decision letter stated under the heading 'Panel Decision':
"Having considered all of the evidence the panel concluded that there was insufficient [(sic) Ms McColgan told me that this was a typographical error and the letter should have said 'sufficient'] evidence to conclude that your Fitness to Practice was impaired. The panel were concerned at the seriousness of the convictions and at your failure to declare these at the appropriate times.
The Panel found that your explanation of the offences, both in your written statement and in the meeting, sought to minimise their seriousness and that you failed to demonstrate that you had fully accepted responsibility for your actions or that you had fully appreciated the impact of these on others. The panel concluded that if the university had been aware of these convictions prior to you commencing the course it was more likely that you would not have been offered a place.
The panel did not accept that it was reasonable for you to assume that you did not need to declare these based on non-specific advice you were given several years prior to submitting your application for a professional programme. The panel noted that during the enrolment process you were provided with clear and unambiguous information regarding the declaration of convictions which you chose not to consider, resulting in a false declaration of no convictions.
The panel concluded that you had failed to meet the following principles set out in the Student Code of Conduct for Pharmacy Students, specifically in relation to the following:
6 Be honest and trustworthy
6.1 act with honesty and integrity
6.5 supply accurate information in response to lawful requests and update that information as necessary [should be here (sic)]
6.8 abide by the rules and regulations of your university and other organisations linked to your studies
7. Take responsibility for your working practices
7.1 obey the law and comply with this Code of Conduct
7.2 take responsibility for your learning and your actions
7.4 tell your university if there is anything which could impair your study
The panel agreed unanimously, based on the evidence provided and in light of the GPhC Code of Conduct for Pharmacy Students and the University Fitness to Practise Policy and Procedure, that your Fitness to Practice was impaired. Due to the seriousness of your convictions and the failure to declare these at any of the available opportunities, the panel agreed that the only appropriate sanction would be to exclude you from your course of study.
I can confirm therefore that it is the decision of the Fitness to Practice Panel that the following sanctions will be applied:
- You will be permanently excluded from your current programme of study (MPharm) at the University of Wolverhampton
On 17 February HA appealed and submitted with his appeal a character reference from his former probation officer.
- You will not be allowed to apply for any other professional programme at the University of Wolverhampton." (original emphasis)
By letter dated 17 February (that date must be an error), Dr Chris Twine, the University's Academic Registrar, dismissed the appeal.
On 7 April HA made a complaint to the Interested Party, who dismissed the complaint in a decision dated 21 July 2017.
These proceedings commenced in September 2017 and permission was granted in October 2017. The University made an open offer of settlement. It offered to re-take the decision through a differently constituted FtPP which would not know of HA's failure to disclose his convictions but would be aware of their nature. HA rejected the offer on the grounds that in his view the University is not entitled to know about his convictions. The offer has now been withdrawn by the University.
The Claim Form in this case encompassed a wide-ranging number of challenges to the University's decision, comprising a number of claims and sub-claims. These were not precisely mirrored in the Claimant's Skeleton Argument, and Mr de Mello's oral submissions added further strands and permutations to the way in which the case was put. However, the principal issues arising on this application that require to be determined are:
a. Whether the University was entitled to require HA as part of the application process to declare whether he had any spent conviction, other than those that would be filtered out.
b. Whether the University was entitled to require HA to apply for an enhanced DBS check in respect of his attendance on the MPharm course and associated placements.
c. Whether, if the answer to either or both of the questions above is 'yes' as a matter of domestic law, Article 8 and/or Article 2 of Protocol 1 to the European Convention on Human Rights ('the Convention') require a different result.
d. Whether the decision to exclude HA from the MPharm course was a disproportionate infringement of his rights under Article 8 and/or Article 2 of Protocol 1, or otherwise unlawful.
As I will explain, although the argument before me ranged widely, and required the examination of a great deal of statutory and other material, it also raised a narrower question, on the basis of which permission was principally granted. That narrow question is whether the specific question which the University asked HA on the MPharm disclosure form was invalid for failing to refer to the relevant subsidiary legislation and whether, therefore, he could be penalised for not disclosing his spent convictions on the form.
The statutory framework
Rehabilitation of offenders
As Sir Brian Leveson P. said in R(P) v. Secretary of State for the Home Department, supra, at paras 1 and 5, the rehabilitation of offenders is an important principle of social policy. He said that those who have come into conflict with the criminal law ought to be able, in appropriate circumstances, to put their pasts behind them and conduct their lives without further reference to what they did years, and in some cases very many years, previously. Thus, certain convictions can become 'spent' after the lapse of a specified period of time and, thereafter, for most purposes, do not need to be disclosed. This is achieved by the 1974 Act, as amended, which introduced a scheme whereby convictions and cautions (including reprimands and warnings) for criminal offences do not have to be disclosed in answer to questions insofar as such convictions and cautions are 'spent'. That is to say, depending on the age of the offender at the time of conviction and the type of sentence imposed (initially being a custodial sentence of 30 months or less, but now, by reference to s 139(2) of Legal Aid, Sentencing and Punishment of Offenders Act 2012, a custodial sentence of four years or less), a specified period of time has elapsed. Those periods are specified in s 5 of the 1974 Act. In those circumstances, a person with a spent conviction is exempted from liability for failing to disclose such matters in circumstances when he would otherwise have been obliged to do so. Cautions (including reprimands and warnings) are spent as soon as they are administered: see para 1 of Sch 2 of the 1974 Act, as amended. In the discussion that follows I will focus on the provisions relating to convictions, although there are broadly analogous provisions in relation to the disclosure of cautions.
Where, as in HA's case, the defendant is sentenced to a youth rehabilitation order, the rehabilitation period is one year from the date of conviction or a period beginning with that date and ending when the order or requirement ceases or ceased to have effect, whichever is the longer (see s 5(5)(da)). Hence, as I have said, by the time he came to apply to the University in 2016, HA's convictions from 2012 were spent.
Section 4 of the 1974 Act provides, so far as relevant, that:
"(2) Subject to the provisions of any order made under subsection (4) below, where a question seeking information with respect to a person's previous convictions, offences, conduct or circumstances is put to him or to any other person otherwise than in proceedings before a judicial authority—
(a) the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions, and the answer thereto may be framed accordingly; and
(b) the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent conviction or any circumstances ancillary to a spent conviction in his answer to the question …
(4) The Secretary of State may by order—
(a) make such provisions as seems to him appropriate for excluding or modifying the application of either or both of paragraphs (a) and (b) of subsection (2) above in relation to questions put in such circumstances as may be specified in the order;
(b) provide for such exceptions from the provisions of subsection (3) above as seem to him appropriate, in such cases or classes of case, and in relation to convictions of such a description, as may be specified in the order.
The effect of s 4(2) is, for example, that if a job application form asks an applicant whether s/he has any criminal convictions, the applicant can regard the question as not referring to any spent convictions, and answer accordingly, without fear of being penalised.
The effect of 4(4) is to confer a power on the Secretary of State to make provisions requiring the disclosure of spent matters in specified circumstances. This power reflects another important social imperative, namely, that because there are those whose criminal records (spent or unspent) may make them unsuitable for certain roles, such people should be required to disclose their full criminal records to prospective employers or others properly interested in their suitability for admission to a profession or their suitability for certain types of work, so that an informed decision can be made as to their suitability.
Pursuant to this power, the Secretary of State made the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023) ('the Exceptions Order'), which has been amended a number of times. The Exceptions Order sets out of a number of circumstances in which the protections offered by the 1974 Act are disapplied, so that a person can be required to disclose matters that are spent which they would otherwise be entitled not to disclose.
Article 3(1) of the Exceptions Order provides that the protection afforded by the 1974 Act does not apply in relation to:
"(a) any question asked by or on behalf of any person, in the course of the duties of his office or employment, in order to assess the suitability—
(i) of the person to whom the question relates for admission to any of the professions specified in Part I of Schedule 1 to this Order.
(ii) of the person to whom the question relates … for any other work specified in paragraph 12A, 13 … 14A, 14AA… of Part II of the said Schedule 1…
where the person questioned is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed."
Of relevance to the present case is the reference in Part I of Sch 1 to the 1975 Order to 'health care professionals' as being among those in respect of whose employment the protection of Article 3(1) of the Order is disapplied. Part IV (interpretation) of Sch 1 provides in turn that:
"… 'health care professional' means a person who is a member of a profession regulated by a body mentioned in subsection (3) of section 25 of the National Health Service Reform and Health Care Professions Act 2002 …"
The Council is listed in s 25(3)(f), and therefore pharmacists are 'health care professionals'. It follows that a question asked by or on behalf of a person in the course of the duties of his office or employment in order to assess the suitability of the person (P) to whom the question relates for admission to the pharmacy profession is not protected by s 4(2) of the 1974 Act, and P can be required to disclose all of his/her convictions, whether spent or unspent.
As I will explain, Mr de Mello on behalf of HA submits that the University does not have the power to ask for disclosure of spent convictions because he says it is not concerned with assessing the suitability of an applicant for entry to the profession of pharmacist. Ms McColgan submits that it is so concerned because the MPharm is a course which has been accredited by the Council, which has the statutory functions of setting the standards and requirements for entry to the pharmacy profession, and the University is entitled to make that enquiry as part of its selection process for its accredited pharmacy course.
Going back to Article 3(1)(a)(ii) of the Exceptions Order, among the work listed in Part 2 of Sch 1 is:
"12A Any work which is regulated activity relating to vulnerable adults within the meaning of Part 2 of Schedule 4 to the 2006 Act [ie, [Safeguarding Vulnerable Groups Act 2006] including that Part as it had effect immediately before the coming into force of section 66 of the Protection of Freedoms Act 2012.
13 Any employment or other work which is concerned with the provision of health services and which is of such a kind as to enable the holder of that employment or the person engaged in that work to have access to persons in receipt of such services in the course of his normal duties …
14A Any work which is regulated activity relating to children within the meaning of Part 1 of Schedule 4 to the 2006 Act including that Part as it had effect immediately before the coming into force of section 64 of the Protection of Freedoms Act 2012.
14AA Any work done infrequently which, if done frequently, would be regulated activity relating to children within the meaning of Part 1 of Schedule 4 to the 2006 Act including that Part as it had effect immediately before the coming into force of section 64 of the Protection of Freedoms Act 2012."
'Regulated activities' are defined in Sch 4 to the 2006 Act. Paragraph 1 provides:
"1(1) An activity is a regulated activity relating to children if—
(a) it is mentioned in paragraph 2(1), and
(b) except in the case of activities falling within sub-paragraph (1A), it is carried out frequently by the same person or the period condition is satisfied.
(b) health care provided by, or under the direction or supervision of, a health care professional.
2(1) The activities referred to in paragraph 1(1) are—
(b) any form of care for or supervision of children, unless the care or supervision is merely incidental to care for or supervision of persons who are not children;"
Paragraph 1(1C) provides that:
"'health care' includes all forms of health care provided for children, whether relating to physical or mental health"
Paragraph 7(1) provides that:
"7(1) Each of the following is a regulated activity relating to vulnerable adults -
(a) the provision to an adult of health care by, or under the direction or supervision of, a health care professional …"
Paragraph 7(2) defines health care for adults:
"7(2) Health care includes all forms of health care provided for individuals, whether relating to physical or mental health …"
Again, 'health care professionals' are members of professions regulated by a body mentioned in s 25(3) of the National Health Service Reform and Health Care Professions Act 2002, which includes pharmacists. Hence a person who is providing health care under the direction or supervision of a pharmacist performs a regulated activity.
Following its amendment by the Protection of Freedoms Act 2012 ('the 2012 Act'), s 60 of the 2006 Act provides that a vulnerable adult is an adult to whom an activity which is a regulated activity relating to vulnerable adults by virtue of any paragraph of para 7(1) of Sch 4 is provided. Paragraph 7 includes things like health care. Hence, an adult to whom health care is being provided is, by virtue of that fact alone, a vulnerable adult. For present purposes, s 59(1)(d) of the 2006 Act (in force prior to the amendments made by 2012 Act), was to the same effect.
Ms McColgan submitted that a student on the MPharm course falls within one or more of these provisions because during the course the student undertakes hospital based placements in which s/he has access to patients, and she submitted in her Skeleton Argument (for the avoidance of doubt) that notwithstanding the savings in paras 12A, 14A and 14AA of Sch 1 Part 2 of the Exceptions Order, the coming into force of the relevant provisions of the 2012 Act has not affected the position under which among the regulated activities listed under Sch 4 of the 2006 Act, namely those in paras 3(1)(a) and 7(1)(a)) are 'health care [provided] by, or under [the] direction or supervision of, a health care professional' (ss64, 66 of the 2012 Act). Whether a person undertaking an MPharm course at the University undertakes regulated activities is something that I will have to determine because Mr de Mello challenges that conclusion.
As I have explained, some convictions can be filtered out so that they do not need to be disclosed even where, as a generality, spent convictions must be disclosed. This is achieved by Article 3(2) of the Exceptions Order, as amended, which disapplies Article 3(1) in respect of what are known as 'protected convictions'. (Some cautions are also protected, however for brevity I will not deal with the provisions relating to those).
A protected conviction is defined as follows in Article 2A(2):
"2A(2) For the purposes of this Order, a person's conviction is a protected conviction if the conditions in paragraph (3) are satisfied and -
(a) where the person was under 18 years at the time of the conviction, five years and six months or more have passed since the date of the conviction ,,,
(3) The conditions referred to in paragraph (2) are that—
(a) the offence of which the person was convicted was not a listed offence;
(b) no sentence mentioned in paragraph (4) was imposed in respect of the conviction; and
(c) the person has not been convicted of any other offence at any time …"
By virtue of Article 2A(5) 'listed offences' include any offences listed in Sch 15 to the Criminal Justice Act 2003. These in turn include an offence under s 47 Offences against the Person Act 1861 (assault occasioning actual bodily harm) and an offence under s 8 of the Theft Act 1968 (robbery). These are the offences of which HA was convicted.
Hence, Article 2A of the Order did not apply to HA's convictions and they were not protected since they were within five years and six months of the date he applied to the University; because they were for listed offences; and because he had two of them. Thus, if the University was entitled to ask HA for disclosure of his spent convictions (a point in issue), then he was required to disclose his two spent convictions from 2012.
Enhanced criminal record checks and DBS certificates
I also need to describe the framework relating to enhanced criminal record checks and DBS certificates. In what follows I again gratefully adopt Sir Brian Leveson P's summary in R(P) v Secretary of State for the Home Department, supra, paras 7 – 9.
Sitting alongside the 1974 Act, Part V of the Police Act 1997 ('the 1997 Act') created a scheme for disclosure of criminal records held by the police, whereby the police are required to provide information for the assessment of the suitability of a person for employment, or engagement in particular types of positions of trust, sensitivity, or those which involve contact with children. Thus, quite apart from the obligation on the person affected to disclose spent convictions when applying for certain positions, there is another mechanism whereby this information will be disclosed to those properly entitled to know.
Under s 113B of the 1997 Act, the DBS (formerly the Criminal Records Bureau) is required to issue a criminal record certificate ('CRC'), or an enhanced criminal record certificate ('ECRC'), to any person who applies for such a certificate on an application countersigned by a 'registered person'. Broadly, by s 120(5)(a), registered persons are those entered on a register maintained by the Secretary of State containing the names of those who demonstrate a potential requirement of a need to ask 'exempted questions'.
An exempted question is one which is relevant to suitability for engagement in specified sensitive activities. The definition of such a question in s 113A(6) of the 1997 Order largely mirrors the 1975 Order:
" … a question which … so far as it relates to convictions, is a question to which section 4(2)(a) or (b) of the [1974 Act] (effect of rehabilitation) been excluded by an order of the Secretary of State under section 4(4) of that Act …"
The University was and is a registered body under the 1997 Act. Ms McColgan submits that it was correctly so registered by the Secretary of State because it is 'likely to ask exempted questions', which as I have explained, is one of the conditions in s 120 which a body seeking registration has to satisfy. A necessary part of Mr de Mello's submission is that the University is not – or should not be - a registered person, at least in relation to prospective pharmacy students because, he argues, it has no power to ask such questions.
Section 113B of the 1997 Act provides that the DBS:
"(1) … must issue an enhanced criminal record certificate to any individual who—
(a) makes an application …, and
(aa) is aged 16 or over at the time of making the application,
(b) pays in the prescribed manner any prescribed fee.
(2) The application must—
(a) be countersigned by a registered person, and
(b) be accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question asked for a prescribed purpose."
The effect of s 113B(2)(b) is that the registered person must state that the certificate is required for the purposes of an exempted question asked for a 'prescribed purpose'. That means prescribed by virtue of reg 5A of the Police Act 1997 (Criminal Records) Regulations 2002 (SI 2002/233). This sets out a list that overlaps significantly with the list in Article 3 of the Exceptions Order, itemising situations in which the registered person proposes to consider the applicant's suitability for a specified position of trust or sensitivity:
"(1) The purposes for which an enhanced criminal record certificate may be required in accordance with a statement made by a registered person under section 113B (2)(b) of the Act are prescribed as follows, namely the purposes of—
(a) considering the applicant's suitability in the circumstances set out in regulation 5C;
(b) considering the applicant's suitability in the circumstances set out in regulation 5B …"
Paragraphs 5B and 5C then provide respectively as follows:
"5B Work with adults
(1) The circumstances referred to in regulation 5A(b) are –
(b) the provision to an adult of regulated activity relating to vulnerable adults within the meaning of Part 2 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006;
5C Work with children
(1) The circumstances referred to in regulation 5A(a) are -
(a) considering the applicant's suitability to engage in any activity which is a regulated activity relating to children within the meaning of Part 1 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006 as it had effect immediately before the coming into force of section 64 of the Protection of Freedoms Act 2012;
(b) considering the applicant's suitability to engage in any activity which is a regulated activity relating to children within the meaning of Part 1 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006."
I have already set out the effect of the relevant parts of Sch 4 to the 2006 Act in relation to regulated activity. Hence, an EHRC may be required to assess a person's suitability to provide health care to children or vulnerable adults by or under the supervision or direction of a health care professional which, as I have said, is regulated activity for the purposes of Sch 4 to the 2006 Act.
An ECRC contains the information set out in s 113B(3). As well as matters recorded in police records, an ECRC may include information which the relevant police force reasonably believes to be relevant to the enquiry made and ought to be included even if it did not result in a conviction (sometimes called 'soft intelligence').
By virtue of s 113A(6), a protected conviction cannot be included on an ECRC.
The DBS issued an ECRC for HA on 8 October 2016. Under 'Position Applied For' it stated 'Child and Adult Workforce Pharmacy Student'. The certificate listed his two convictions, and the sentences which were imposed for them.
Statutory regulation of the pharmacy profession
The Council is the statutory regulator of the pharmacy profession by virtue of the Pharmacy Order 2010 (SI 2010/231) ('the Pharmacy Order').
Article 4(1) provides that there is to be a body corporate known as the General Pharmaceutical Council. Article 4(3) sets out the Council's principal functions. Sub-paragraphs (a), (c) and (e) are of particular relevance in this case and they provide that the Council's functions include the following:
"(a) to establish and maintain a register of pharmacists, pharmacy technicians and premises at which a retail pharmacy business is, or is to be, carried on;
(c) to set requirements by reference to which registrants must demonstrate that their fitness to practise is not impaired;
(e) to set standards and requirements in respect of the education, training, acquisition of experience and continuing professional development that it is necessary for pharmacists and pharmacy technicians to achieve in order to be entered in the Register or to receive an annotation in the Register and to maintain competence …"
Article 6(1) provides that the Council's over-arching objective in exercising its functions is the protection of the public. Article 6(1A) provides that the pursuit of the Council of its over-arching objective involves the pursuit of the following objectives:
"(a) to protect, promote and maintain the health, safety and well-being of the public;
(b) to promote and maintain public confidence in the professions regulated under this Order;
(c) to promote and maintain proper professional standards and conduct for members of those professions; and
(d) to promote and maintain proper standards in relation to the carrying on of retail pharmacy businesses at registered pharmacies."
Article 18 requires the Council to appoint a Registrar. Article 19(1) requires the Registrar to maintain a register of pharmacists and pharmacy technicians. Article 20(1)(a) requires the Registrar to register a person (P) as a pharmacist in the Register if, inter alia, P is appropriately qualified and P's fitness to practice is not impaired.
Article 21(1) provides that P is appropriately qualified if, inter alia, he has been awarded a qualification in Great Britain that has been approved by the Council as attesting to a standard of proficiency for the safe and effective practice of pharmacy that, in the Council's opinion, it is necessary for the person to achieve in order to be entered in the Register.
Part 5 of the Pharmacy Order is entitled 'Education, training acquisition of experience and continuing professional development'. Article 42(1) provides:
"(1) In connection with its general function under article 4(3)(e), in so far as that function relates to the education, training and acquisition of experience of registrants and prospective registrants, the Council must—
(a) … set the standards of proficiency for the safe and effective practice of pharmacy which it is necessary for a person to achieve in order to be entered in Part 1 or 2 of the Register as a pharmacist or, as the case may be, a pharmacy technician; and
(i) the standards of education, training and experience that providers of education and training must meet in order to enable a person undertaking such education or training, or acquiring such experience, to achieve the standards referred to in sub-paragraph (a) having regard, in particular, to the outcomes to be achieved, and
(ii) any requirements to be satisfied for admission to, and continued participation in, education and training for prospective pharmacists or prospective pharmacy technicians, which may include requirements as to fitness to practise unimpaired by health."
Part 6 of the Pharmacy Order is entitled 'Fitness to Practice'. Article 51 provides that a person's fitness to practice is to be regarded as 'impaired' only by reason, inter alia, of a criminal conviction in the British Islands for a criminal offence (Article 51(1)(e)).
The Council's own procedures concerning applications to be entered on to the Register are contained in the General Pharmaceutical Council (Registration Rules) Order of Council 2010 (SI 2010/1617) ('the Registration Rules'). Rule 10(3)(k) provides:
"(2) An applicant for entry in Part 1 or 2 of the Register must provide to the Registrar, together with the applicant's application form—
… a self-declaration, in the form determined by the Council from time to time, of the applicant's good character or repute which states whether any of the matters set out in article 51(1)(e) to (n) of the Order [exist in relation to the applicant and which is signed and dated by the applicant."
Article 51(1)(e) provides that a conviction in the British Islands for a criminal offence impairs a person's fitness to practice as a pharmacist. It is therefore clear that if HA were to apply to the Council for registration as a pharmacist: (a) he would have to declare his convictions; (b) the Council would regard his fitness to practice as impaired by reason of those convictions.
The parties' submissions
On behalf of HA, Mr de Mello's principal submission was that the MPharm course was not one to which the Exceptions Order applied, and the University was not therefore lawfully entitled to ask HA to disclose his spent convictions. Thus, he submitted, the University acted unlawfully in excluding HA from the course for his failure to disclose them. Allied to this was the submission that the University was not lawfully entitled to require HA to obtain an ECRC containing details of his spent convictions.
Developing this submission, Mr de Mello submitted that there is no statutory provision in the various Education Acts governing universities which authorised the University to request HA to disclose his spent convictions or obtain an ECRC. Basing his submission on the principle of legality (cf R v Secretary of State for the Home Department ex parte Simms  AC 115) he submitted that s 125 of the Education Reform Act 1998, which in summary terms requires universities to have articles of government, and provides that those articles may make provision with respect to the procedures for the admission, suspension and expulsion of students, was too general to confer power on the University to ask about spent convictions. Next, he submitted that the Exceptions Order does not apply to the University because the only person who is authorised to ask exempted questions for the purposes of assessing the suitability for admission to the Register is the Council's Registrar, by virtue of Rule 10(3)(k)(ii) of the Registration Rules, which empowers the Council to ask an applicant for registration to state whether he has any convictions. He also argued that the Council has no power to delegate this power to the University, and that such a possibility is excluded by the legislative code established by the Pharmacy Order and the Registration Rules. Mr de Mello also submitted that the Council's Code of Conduct for Pharmacy Students was unlawful because the Council does not have the power to request the University to ask HA (or any other MPharm applicant) to disclose spent convictions. Similarly, Mr de Mello submitted although the University was a registered person for the purposes of the 1997 Act, it was not entitled to ask an exempted question and did not do so (in HA's case at least) for a prescribed purpose. He focussed his submission on the question of whether HA would have carried on regulated activities on the MPharm course, and submitted that he would not have done because, he submitted, Sch 4 of the 2006 Act does not apply to health care provided by a trainee pharmacist.
Mr de Mello also submitted that the University had violated Article 8 and/or Article 2 of Protocol 1 to the Convention by requiring HA to disclose his spent convictions. HA's submissions in relation to Article 8 are set out at para 81 et seq of his Skeleton Argument. He submitted that the University is a public authority for the purposes of the Human Rights Act 1998, and that the requirement on HA to disclose his convictions was an interference with his rights under Article 8(1) which was not justified under Article 8(2). He submitted that the interference was not 'in accordance with the law' because of what he submitted is the absence of proper statutory basis for the question to be asked. He also submitted at para 88 that the requirement to disclose imposed by the Exceptions Order is unlawful for the same reasons as in R(R) v National Police Chiefs' Council  EWHC 2586 (Admin), paras 84 – 88 and R(T) v Secretary of State for the Home Department, supra, paras 114 and 119. At para 91 et seq HA developed a submission that even if there was a lawful basis to require him to disclose his previous convictions, on the facts of this case it was a disproportionate interference with his Article 8(1) rights. Firstly, he submitted that the objective behind the interference was not sufficiently important to justify limiting the right of the Claimant under Article 8; second, he said the measures are not rationally connected to the objective; third, the interference goes further than is necessary to accomplish the objective; and fourthly a fair balance has not been struck between the rights of HA and the interests of the community, that is, patient safety.
He also submitted that exclusion from the course was a disproportionate sanction and so the University violated Article 8 when it excluded HA. He argued that the FtPP had failed to make clear findings and had failed to consider lesser sanctions than exclusion. He also submitted that it wrongly failed to take into the mitigating features of the case. He also said that the University's FtPP acted unlawfully by failing to have express regard to, or to take into account, Article 8 during its decision-making process.
On behalf of the University, Ms McColgan submitted that it had been entitled to ask HA exempted questions and to require that HA provide an ECRC by reason of the fact that the question was asked 'in order to assess the suitability of … [HA] for admission to' the pharmaceutical profession. She made clear her primary case was not that the University was asking these questions on behalf of the Council. She said this case was not about delegation. Her main case was that the University itself was entitled to ask exempted questions because it itself was involved in assessing HA's suitability for admission to the pharmacy profession, and for work specified in paras 12A, and/or 13 and/or 14A and/or 14AA of Part 2 of Sch 1 to the 1975 Order (that is, regulated activity relating to children and/or vulnerable adults within the meaning of Parts 1 and 2 respectively of Sch 4 to the 2006 Act), because the accredited MPharm course is an essential first step to qualifying as a pharmacist. She submitted that HA's MPharm course activities would have included the provision by HA while on placement to children and adults of regulated activities, namely health care, and pointed out that the provisions of Sch 4 also apply to those who provide health care under someone else's direction or supervision. In relation to the ECRC, she relies on regs 5A, 5B and 5C of the Police Act 1997 (Criminal Records) Regulations 1992, as amended.
On behalf of the University Ms McColgan submits that it is not a public authority for the purposes of the Human Rights Act 1998, but accepts that the statutory provisions have to be construed compatibly with HA's Article 8 rights. But, whilst there have been cases such as R(R) v National Police Chiefs' Council, supra, and R(T) v Secretary of State for the Home Department, supra, where the courts have upheld violations of Article 8(1) by reason of a requirement to disclose spent convictions, she emphasises that ultimately the matter falls to be assessed on the basis of the individual claimant's case. And, she says, this is not a case, as have been those in respect of which the disclosure regime has been found to have breached Article 8, in which HA's convictions were very minor and/or decades old. Although the Claimant was 14 at the time of his offending, the offending was of a serious nature and involved both violence and dishonesty. This offending cannot reasonably be said to have no rational connection to his fitness to practice as a pharmacist.
Further, she said that exclusion was a proportionate punishment having regard, she said, to the FtPP's finding that HA's fitness to practice was impaired and that he had acted dishonestly. She said that even if the FtPP had not had regard to Article 8, that did not vitiate the lawfulness of its decision provided that what it had done was proportionate, which she said it was. In support of this latter submission she relied on R (SB) v Headteacher and Governors of Denbigh High School  1 AC 100.
Ms Greaney on behalf of the Council supported Ms McColgan's submissions, including the submission that the University was entitled in its own right to ask exempted questions of HA. She submitted that HA's argument that the Council's Code of Conduct for Pharmacy Students was unlawful, was plainly wrong. She submitted that the Council is entitled by virtue of Article 42(1)(b)(ii) of the Pharmacy Order to set admission requirements for education and training courses for prospective pharmacists that concern fitness to practice relating to conduct.
Was the University entitled to require HA to disclose his spent convictions and to require him to obtain an ECRC ?
As I have explained, Article 3(1) of the Exceptions Order provides that the protection afforded by the 1974 Act does not apply in relation to any question asked by or on behalf of any person, in the course of the duties of his office or employment, in order to assess the suitability:
I have already set out the complex statutory provisions, but to summarise: the pharmacy profession is one of the professions in Part I of Sch 1, and a person who is providing health care under the direction or supervision of a pharmacist in relation to children or vulnerable adults falls within paras 12A and 14A. An adult who is a patient receiving health care is, by definition, a vulnerable adult for these purposes.
a. of the person to whom the question relates for admission to any of the professions specified in Part I of Sch 1 to the Exceptions Order;
b. of the person to whom the question relates for any other work specified in paragraph 12A, 13, 14A, or 14AA of Part II of Sch 1.
Is the University 'assessing suitability' within Article 3(1) when it asks prospective MPharm students to disclose their spent convictions and, if so, is it doing so itself, or on behalf of the Council ? The starting point of my analysis are the respective roles played by the Council and the University in relation to the MPharm degree.
As I have already explained, the Council's overarching objective, by Article 6 of the Pharmacy Order, is the protection of the public. Article 4(3)(e) of the Pharmacy Order provides that one of the Council's principal functions is setting standards and requirements in respect of the education, training, acquisition of experience and continuing professional development necessary for pharmacists and pharmacy technicians to achieve to be entered onto the Register. Giving effect to this function, Article 42(1)(b)(i) provides that the Council must set:
"the standard of proficiency for the safe and effective practice of pharmacy which it is necessary for a person to achieve in order to be entered in … the Register."
and Article 42(1)(b)(ii) provides that the Council must set:
"any requirements to be satisfied for admission to, and continued participation in, education and training for prospective pharmacists … which may include requirements as to fitness to practice unimpaired by health."
Hence, it is for the Council to determine what it requires by way of proficiency in order to become a registered pharmacist, and what requirements must be satisfied by those wishing to study with a view to becoming pharmacists. The legislation ensures that the Council's requirements will be met because those wishing to become pharmacists after university study in Great Britain may only do so if they successfully complete a degree which has been approved by the Council. That is because of Article 21(1) of the Pharmacy Order, which provides that such a person is appropriately qualified if he has been awarded a qualification in Great Britain that has been approved by the Council as attesting to a standard of proficiency for the safe and effective practice of pharmacy that, in the Council's opinion, it is necessary for the person to achieve in order to be entered in the Register of pharmacists. Hence, the Council has the right to determine which universities may award degrees that educationally qualify students to become pharmacists.
The requirements that have been set by the Council pursuant to its powers under Article 42(1)(b)(i), (ii) are contained in the Future Pharmacists: Standards for the initial education and training of pharmacists ('the Standards'). These are produced as an exhibit to the witness statement of Duncan Rudkin, who is the Council's Chief Executive and Registrar. The Standards constitute the requirements which education providers must meet that wish to have their degree programmes accredited under Article 21(1). At the relevant time there was also a Code of Conduct for Pharmacy Students, although I understand that has been since superseded by another document.
Standard 1 is 'Patient and public safety'. The criteria to meet this standard include, by para 1.1, that there must be 'effective systems in place' to ensure that students and trainees (the latter term referring to those undergoing an integrated course combining the MPharm course and the pre-registration training year):
"- must not be awarded an accredited degree or pass preregistration training if they might pose a risk to patients or the public. Where an accredited degree cannot be awarded, it may be possible to award another, unaccredited qualification such as a certificate, diploma or BSc.
Standard 1 makes clear at para 1.8 that:
- undergo required health and good character checks …"
"By awarding an accredited degree a university is confirming that a pharmacy graduate is fit to enter pre-registration training".
Standard 4 ('Selection of students and trainees') provides that selection processes must be open and fair and comply with relevant legislation. They must ensure that students and trainees are fit to practice as students or trainees at the point of selection. Paragraph 4.2 provides that the selection criteria for accredited courses
"should include … taking account of good character checks, such as Criminal Records Bureau (CRB) [now DBS] … checks".
Allied to the Standards is the Council's accreditation submission template. This document is produced by the Council for universities which wish to offer a pharmacy degree that is approved by the Council. The university must complete the template, which in part requires the university to produce a narrative demonstrating how each standard is met. The Council then considers the template along with the evidence submitted by the university and determines whether to approve the proposed degree course.
In relation to character, the template requires (paras 1.1 and 1.1.h) that:
"There must be effective systems in place to ensure that students and trainees ... Undergo required health and good character checks."
The Council's Guidance on student fitness practise procedures in schools of pharmacy, says at para 2.5:
"The admissions process must include appropriate health and good character checks, such as the self-certification of good health, enhanced Criminal Records Bureau and/or Disclosure Scotland checks and the self-declaration of adverse determinations by other regulators, in particular healthcare regulators."
The place where the University's policy is to be found that, in relation to prospective MPharm students, it will seek ECRCs, is the University's re-accreditation agreement with the Council. The commentary which the University has provided in order to demonstrate that it has the effective systems in place that are required by the Council under Standard 1 states that:
"During the application process [prospective students] must make online declarations regarding their health and character and anything that may raise concerns in this regard … In addition to their declaration, all year 1 students must undertake an enhanced Disclosure and Barring Service (DBS) check and a full occupational health (OH) check with a local hospital trust. Students are cleared to the same level as a pharmacist employed by the trust …
Students who have satisfactorily passed these checks in year 1 are required to make an annual online declaration to confirm their on-going fitness to practice (good health and character) as part of the enrolment process. This declaration reflects that used by [the Council] for pharmacists renewing their registration and it is impossible for a student to enrol without making a declaration. Declarations are incorporated in to the Fitness to Practice Documentation assessments at each of Pharmacy Stages 1 – 4. A database was introduced in 2011 to record all health and character information. This streamlined the process significantly and reduced any potential for errors and omissions.
Any matters which arise from these checks and declarations are considered by the Faculty Suitability Panel in accordance with the SFtP policy.
Our MPharm Service Practice and Interprofessional Experience Strategy outlines our policy on the safety of patients, carers and clients whom students encounter in the course of their studies. It stipulates that students will not be permitted to engage in patient-facing activities where there is evidence that their health and/or character may jeopardise patient safety; where the students fail to follow the procedures required for health and character assessment and declaration; or who or who is being given a sanction from a fitness to practice panel which excludes him or her from patient contact. Patients encountered on practice placements are protected by way of exclusion of students from placement visits if they have not satisfactorily completed and passed their occupational health screening and DBS checks. To ensure this, staff who allocate placements are allowed access to the DBS/OH check database. In line with current practice on the programme a number of assessments which must be passed are dependent upon information gathered whilst placements including pharmaceutical care plans and case discussions. Students also submit placement attendance sheets as pass/fail elements of the annual portfolios."
This re-accreditation agreement is dated 2014, but I was told by Ms McColgan (on instructions) that prior to re-accreditation with the Council, when this policy was first formulated in writing between the University and the Council, the University was voluntarily asking MPharm applicants for disclosure of unspent convictions and requiring them to undergo ECRCs.
Placements involving patient contact are an important part of the MPharm degree. Paragraph 5.6 of the Standards provides:
"The MPharm degree curriculum must include practical experience of working with patients, carers and other healthcare professionals. Practical experience should increase year-on-year. We are not suggesting that off-site placement visits are the only way to achieve this. Schools should articulate their strategy for meeting this criterion, which may include off-site placement visits, using patients, carers and other healthcare professionals in-class, and simulations."
The information on the University's website for prospective MPharm students, produced by Alan Hindle, the University's Principal Lecturer in the School of Pharmacy, states:
"The programme itself is highly clinical and patient-focussed, benefitting from our extensive use of lecturers and practitioners who have experience of working in the various sectors of the profession."
Further to this, the University's MPharm Year 1 Placement Manual for 2016-17 (to which HA was subject whilst he was a student) stated:
"You will attend a series of placement visits in different sectors of the profession throughout the MPharm program, these placement visits form an integral part of your studies …
You have been asked to undertake an OH check run by New Cross Hospital, Wolverhampton and a DBS check as organised by the Faculty of Science and Engineering administration team.
If you have not satisfactorily passed both of these checks and made your annual declaration of fitness to practice then you will not be allowed to attend any placement at any of opposite participating hospital venues, nor will you be allocated to a placement group. This will make it impossible for you to pass the linked assessments."
Consistently with these statements, the evidence before me demonstrates that an MPharm student has significant patient contact from year 1 of the degree programme. Paragraph 6 of Mr Rudkin's witness statement explains that an MPharm degree can be conducted as a four-year degree followed by a separate 52 weeks of pre-registration training or as a five-year MPharm degree which includes intercalated blocks of pre-registration training. At least 26 weeks of pre-registration training must be patient-facing. Currently the majority of prospective pharmacists complete the four-year MPharm degree. He states that, 'The MPharm involves significant contact with patients (who may include vulnerable adults)'.
Further on this topic, the University has supplied plans demonstrating the sort of activities that MPharm students undertake whilst on their placements. These demonstrate that right from the outset MPharm students have patient contact. For example, in year 1 they visit hospital wards and observe drugs being dispensed. In year 2 they observe members of staff handing out prescriptions and giving advice to patients. In year 2 they may also take medical and drug histories from one or two patients. In year 3 placements involve ward rounds in which the students perform various activities including communicating with the patients; reviewing the patient's drug charts; and reviewing the patient's medical notes.
I turn, then to the question whether the question asked of HA by the University fell within Article 3(1) of the Exceptions Order. In my judgment, Ms McColgan was right to submit that the University was asking the question so that it could assess whether HA was suitable for admission to the pharmacy profession, and to undertake the work specified in Article 3(1)(a)(ii), and that it was doing so for itself and not on behalf of the Council on some sort of delegated basis.
As I have explained, the Council has the power to set entry requirements for the MPharm course, both in terms of the standards of proficiency to be attained by those seeking to become pharmacists, and also the requirements for entry to education as a prospective pharmacist. In my judgment those requirements may – indeed, I would say must - include requirements as to criminal checks because such checks have an obvious relevance to ensuring patient safety. The power to set those requirements is to be found in Article 42(1)(b)(ii), which in turn resulted in the Council setting Standard 1 ('Patient and public safety') and Standard 4 ('Selection of students and trainees'), among others. That the power conferred by Article 42(1)(b)(ii) extends to checking students' criminal records is a necessary incident of the Council's overarching objective of protecting the public (Article 6), which involves it pursuing objectives 'to protect, promote and maintain the health, safety and well-being of the public' and 'to promote and maintain public confidence in the professions' regulated by the Pharmacy Order (Article 6(1A)). The Council, as the body charged with determining how pharmacists are to be trained, has set out in its Future Pharmacists that university pharmacy students must have significant patient contact. The Council would be failing in these objectives if it did not set requirements aimed at ensuring that those whose criminal records make them unsuitable to work as pharmacists should not be allowed to begin to train as a pharmacist at university and so not allowed to have access to patients.
The Council ensures that its character requirements are met by only accrediting those universities who can prove that they have effective systems in place to ensure that only those students who satisfy those requirements are selected. Universities therefore have a duty and responsibility to operate their systems properly, not as agents of the Council, or on behalf of the Council, but on their own account in fulfilment of what they have undertaken to the Council they will do in order to receive the Council's accreditation, namely, only to select those students whose characters are such that they are fit to begin the course they must pass to become pharmacists. In my judgment, assessing a person's suitability to be a pharmacist means more than just an assessment by the Council whether an applicant's name is to be entered on the Register under Article 20(1)(a) of the Pharmacy Order. It also includes assessing whether an applicant is suitable to be enrolled on the MPharm course, which is a required step to becoming a pharmacist. If they not suitable, then by definition they are not suitable to become a pharmacist because they cannot complete the required degree. And, for the reasons I have given, assessing suitability at that stage can and must include criminal record checks.
I do not accept Mr de Mello's submission that the words 'which may include requirements as to fitness to practice unimpaired by health' in Article 42(1)(b)(ii) somehow limit what requirements the Council can set, or that they impliedly exclude that those requirements can relate to character. Those words are there, in my judgment, to make it clear that the Council's power under this provision extends to requiring prospective student pharmacists to disclose matters pertaining to their health. A person's health and medical records are of especial sensitivity and those words make clear that, notwithstanding that special quality of confidentiality which attaches to a person's medical history, the Council can require educational providers to obtain from applicants evidence that they are not impaired by reason of health.
I also reject the submissions at para 72 et seq of HA's Skeleton Argument that the Council had 'no power to request the Defendant to ask the Claimant to disclosure his spent convictions' (sic). As I have explained, that is not in fact the way the relationship between the Council the University operates. The Council required the University as a condition of accreditation to demonstrate that it could fulfil the requirements which the Council as statutory regulator believes are necessary for the education of prospective pharmacists, including character checks. The University operated its procedure vis-à-vis HA to satisfy itself that he was not unsuitable to study on the MPharm course by reference to his character.
In deciding who to admit to an accredited pharmacy course, the University is entitled to have an eye to the future and only to select those candidates which it believes are most likely to successfully enter the pharmacy profession. In making that assessment, the University is not determining that the person will enter the profession: that is a matter for the Council to determine at the relevant time in accordance with the Registration Rules and the Pharmacy Order. Nothing the University does can dictate to the Council whether or not it should admit a student to the Register four or five years hence, or whenever it might be, and nothing the University did in this case purported to have effect. But that fact does not mean that when it is selecting students for the MPharm course the University is not also concerned itself with the assessment of the students' suitability to become pharmacists. The University is entitled to ask itself during the selection process: 'We have been approved to offer a degree which is a required step to enter this profession. Who out of this pool of candidates do we think are most likely to successfully enter the profession, such that we should allocate our limited resources to their education and training, as opposed to another group of applicants ?' That, in my judgment, involves an assessment of an applicant's suitability to enter the pharmacy profession, but not as the result of any delegation of power by the Council.
If I may respectfully say so, the point was well made by Ms Rowena Collins Rice sitting as a Deputy High Court judge in R (Ngole v University of Sheffield (Health and Care Professions Council intervening)  EWHC 2669 (Admin). In that case Mr Ngole was training to be a social worker at Sheffield University. He was removed from his course because of Facebook postings he made about homosexuality, which the University determined made him unsuitable to continue on the course. The social work profession is regulated by the Health and Care Professions Council ('the HCPC'). The HCPC is a statutory body, established by the Health and Social Work Professions Order 2001, to regulate a range of professional service provision in the health and social work sectors. The 2001 Order contains provisions that are broadly analogous to the provisions of the Pharmacy Order that I have set out. So for example, Article 5(2) of the 2001 Order requires the HCPC:
"...a) establish the standards of proficiency necessary to be admitted to the different parts of the register being the standards it considers necessary for safe and effective practice under that part of the register; and
(b) prescribe the requirements to be met as to the evidence of good health and good character in order to satisfy the Education and Training Committee that an applicant is capable of safe and effective practice under that part of the register."
In the same way that the Council approves pharmacy degrees, the HCPC approves social work degrees. At para 26, the judge explained that:
"26. The HCPC accordingly operates a system of approval or accreditation of certain social work courses as capable of leading to registration on successful completion. That has direct implications, both academic and procedural, for the obligations of education providers (including universities) holding out their courses as capable of leading to registration. The HCPC's published Standards of Education and Training (SET) Guidance is directed at providers of such courses to help them ensure that the relevant standards are maintained."
At para 35 the judge referred to the University's role in these terms:
"35. The University's MA Social Work programme is an HCPC approved course leading to a qualification approved for the purpose of professional registration. As the provider of a degree programme leading to registration with the HCPC, the University has a requirement not only to teach and examine the course in compliance with the SETs, it also has a requirement to act as a gatekeeper to the social work profession, to raise any FTP concerns and, if necessary, investigate and determine through its internal procedures whether a student is fit to practise."
This reference to the University as a 'gatekeeper' was a reference back to a submission made by the HCPC which the judge recorded at para 29 (emphasis in original):
"Education providers are not standing in the shoes of the HCPC, rather the relationship is better characterised as education providers acting as gatekeepers for the HCPC. That gateway is completion of an HCPC-approved programme. Students who do so satisfy one of a number of preconditions to registration with the HCPC. … [T]he education providers perform a crucial role in providing a safeguard against students who are not fit to practise being admitted to the register."
In my view, precisely the same can be said about the relationship between the University and the Council. By requiring MPharm applicants to declare all of their convictions, spent and unspent, and by requiring them to obtain an ECRC, the University is not standing in the shoes of, or acting on behalf of, the Council. It is acting as a gatekeeper to ensure that it identifies at an early stage those who are likely not fit to practice as pharmacists and who would not likely for that reason be admitted to the Register if they were allowed to progress.
I do not accept the submission at para 57 of HA's Skeleton Argument that the only body that is authorised to ask a question under Article 3(1) of the Exceptions Order is the Council, or that there is any question of delegation here. True it is that, as a condition of registration under Rule 10(3)(k) the Registration Rules the Council may ask, in effect, the same question. But that is focused on a different time, namely when the person is seeking entry to the Register. Rule 10(3)(k) is therefore to ensure that at that point in time, the person's criminal record is not a barrier to registration. That power does not exclude by necessary implication the power of the University to ask the same question of someone seeking entry to the MPharm course at a much earlier point in time in fulfilment by it of the standards and requirements which the Council has set as a condition of accreditation pursuant to its powers under the Pharmacy Order.
I therefore conclude, subject to the discrete point on the wording of the question which I address below, that the question asked of HA fell within Article 3(1)(a)(i) and (ii). Although Mr de Mello submitted to the contrary, it is plain on the evidence that student pharmacists have access to patients and they therefore perform regulated activities. The fact that are doing so as trainees, under the supervision of an instructor, does not mean that what they are doing is not a regulated activity, because of the words 'under the direction or supervision of' a health care professional in the relevant statutory provisions.
Mr de Mello also attempted to mount an argument based on the wording of para 5 of Sch 4 (relating to children) and the similarly worded para 7(10) (relating to adults). Paragraph 5 provides:
"A person who is part of a group in relation to which another (P) engages in regulated activity relating to children does not engage in regulated activity only because he assists P or does anything on behalf of or under the direction of P which, but for this sub-paragraph, would amount to engaging in regulated activity relating to children."
He submitted this took a trainee pharmacist out of the scope of regulated activities. I reject that submission. What para 5 and para 7(10) does is to provide that if, for example, a student in a class being taught by an adult (which is a regulated activity) is asked to assist the adult, then the student does not, simply as a result or providing such assistance, undertake regulated activity.
For the same reasons, the University was entitled to require HA to obtain an ECRC. It is a registered person, and its purpose was a prescribed purpose, namely work with children and vulnerable adults as defined in paras 5B and 5C of the Police Act 1997 (Criminal Records) Regulations 2002 (SI 2002/233).
Standing back for a moment, if Mr de Mello were correct, and the University was not entitled to ask prospective MPharm students about spent convictions or to require them to obtain ECRCs, the consequences would potentially be very serious. It would mean that an applicant with a spent conviction for doing something which unquestionably made him or her unfit to be a pharmacist could enroll on an MPharm course, and quickly gain access to patients in a clinical setting and to controlled drugs. I put to Mr de Mello in argument the example of an applicant who, as a recent teenager, had a conviction for attempting to poison his little sister contrary to s 24 of the Offences Against the Person Act 1861. A more prosaic example might be an applicant with a recent conviction for the misuse of controlled drugs. One can readily see that both applicants would likely be found to be unsuitable to be pharmacists, but on HA's case both would be permitted to enroll on the MPharm course, thereby putting them into direct contact with patients, with neither the University (nor the NHS, whose patients they would be treating) being aware of their criminal offending, absent some sort of voluntary disclosure. Mr de Mello did not shrink from the consequences of his submission, but the dire consequences which might follow, and the risks to public safety which would be engendered, demonstrate that he cannot, with respect, be correct.
Was the question asked of HA on the application form invalid for failure to refer specifically to the Exceptions Order ?
This is the issue on which permission was granted (the single judge indicating that he was granting permission on all grounds for pragmatic case management reasons despite being unattracted by their merits).
The issue arises because of the concluding words in Article 3(1) of the Exceptions Order. That Article disapplies s 4(2) of the 1974 Act where a question is asked for the purposes set out in the Article, but subject to this caveat:
"… where the person questioned is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed."
The question asked of HA did not refer to the Exceptions Order by name, but to the 1974 Act. I set out the wording of the question again for convenience:
"This course, like the profession of pharmacy, is exempt from the Rehabilitation of Offenders Act because it might involve close working with children or vulnerable adults. You are therefore required to declare any convictions, cautions or binding overs even if they would otherwise be regarded as 'spent'.
Please note that a positive declaration will not necessarily exclude you from the course. However, a false declaration may result in your removal from the course.
Have you ever been convicted, or received a caution, warning or final reprimand, for an offence that will be not be filtered from the Police National Computer when it is processed by the DBS ?"
Mr de Mello on behalf of HA submits that the meaning of the caveat is that the Exceptions Order has to be specifically mentioned for a question purportedly asked under Article 3(1) to validly disapply s 4(2); that in the absence of those words s 4(2) is not disapplied; and therefore that the question which HA was asked did not, as a matter of law, remove the protection afforded by s 4(2), so that he could not be penalized for failing to answer it. In effect, he submits that the words 'is informed' applies to both the words 'by virtue of this Order' and the words 'spent convictions are to be disclosed,' so that such a question, in order to be legally effective, has to be prefaced by some formulation which identifies the Exceptions Order by name, such as:
"You are informed that by virtue of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, you must disclose all convictions, cautions, warnings or final reprimands, for any offence that will be not be filtered from the Police National Computer when it is processed by the DBS."
On behalf of the University, Ms McColgan submits to the contrary. She submits that, given the context (non-lawyers asking questions of non-lawyers), the reference to the 1974 Act not applying was sufficient. She relied on Lincolnshire County Council v RJ  1 WLR 1679, 1687 – 88. That case concerned the conviction of a foster parent for an offence and whether it disqualified him from being a foster parent. The judge said:
"Regulation 3 of the Regulations of 1991 [ie, the Foster Placement (Children) Regulations 1991] governed the approval of foster parents. Under the regulation a child, save for emergency provision, is not to be placed unless the foster parent is approved under the terms of the regulation. By regulation 3(4), a local authority or voluntary organisation are not to give any approval under this regulation unless not only they have required two references, but they have, by regulation 3(4)(b), obtained, so far as practicable, the information specified in Schedule 1 to the Regulations of 1991 relating to him and other members of his household and family. Schedule 1 sets out the uniform standards, therefore, of information to be supplied by a prospective foster parent as to himself and other members of household and family. Much of it, of course, is 1688what may be expected: age, health, particulars of the accommodation, religion and so on, and by paragraph 9, previous criminal convictions and those of other members in his household. Paragraph 9 is introduced by the bracketed words: "(If any, and subject to the Rehabilitation of Offenders Act 1974 )."
It was submitted to me at one stage from different perspectives, both by Mr Jubb on behalf of the local authority and Mr Garnham on behalf of the Department of Health, that the reference to the Act of 1974 at paragraph 9 of Schedule 1 to the Foster Placement (Children) Regulations 1991 was superfluous, a reminder that the Act existed or otherwise of minimal effect. I inclined in argument and remain of the view that this is not so. The structure, it seems to me, of the Regulations of 1991 takes into account the Rehabilitation of Offenders Act 1974 and its exemption order made the following year and works by empowering the local authority, or indeed the voluntary organisation who also has power to approve foster parents, with a two-fold discretion. They can, or rather they could, on the basis of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 , ask about previous criminal convictions, providing, of course, they make it clear that they do so by reference to the Act of 1974. If they do not ask or do not ask in the requisite form, the Act of 1974 cover, it seems to me, applied. But if they asked specifically, but directly and appropriately, there is no such cover."
Ms McColgan relied in particular on the second part of the second paragraph, but this does not seem to me to provide much assistance on issue in this case.
In my judgment what I have called the caveat in Article 3(1) is not to be read as requiring the person to be informed that spent convictions are required specifically by virtue of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. It is to be read as just requiring the person to be told that the law requires them to disclose unfiltered spent convictions. The caveat has to be read in the context of how s 4(2) of the 1974 Act interlinks with Article 3(1) of the Exceptions Order. Section 4(2) permits someone (P) who, for example, is asked the simple direct question: 'Do you have any convictions from any date?' to treat the question, despite its apparently all-encompassing scope, as meaning something different, and as not relating to spent convictions. Because s 4(2) permits P to treat a question which asks one thing as asking a different question, there is plainly a risk that if P is asked a question which falls within Article 3(1), and P is not told that spent convictions have, as a matter of law, to be included, P may think that they do not have to be disclosed. That would obviously be unfair. The caveat is there to ensure that there is no scope for misunderstanding by requiring that P be told, in effect: 'This question requires spent convictions, etc, to be disclosed as a matter of law'. It is there to ensure that P is fairly informed that whatever his general understanding might be, on this occasion, in response to this question, there is a legal requirement for spent convictions to be disclosed.
In the context where, for the most part (as in this case), questions are asked pursuant to Article 3(1) by non-lawyers of non-lawyers, it would serve no purpose to interpret the caveat as requiring the particular piece of subsidiary legislation to be named (although I should say, for completeness, that the University has now amended its form so that it refers to the Exceptions Order). I suspect the vast majority of lay people do not know and do not care what the difference is between an Act and an Order. What matters to them is that they be clearly told they have a legal obligation to disclose all of their unfiltered convictions from whatever date. The words 'by virtue of this Order' in the caveat should be interpreted as meaning the person merely has to be told it is a legal requirement to disclose spent convictions in response to the question asked. Thus, in my judgment it was enough for the form to state, 'This course, like the profession of pharmacy, is exempt from the Rehabilitation of Offenders Act because it might involve close working with children or vulnerable adults' and that spent convictions, etc, had to be disclosed. That was an accurate statement of the legal effect of the Exceptions Order, and hence I conclude that the form and the question HA was asked complied with Article 3(1).
Although Mr de Mello raised the issue as a point of pure law, and submitted that the question which HA was asked was not in the form required by the Exceptions Order, it is right to note that this issue is academic in one sense, in that HA has never suggested that he was misled by the form of the question into thinking he did not have to declare his convictions. As I have explained, his case was that he relied on what he had been told by his probation officer, and that he 'rushed' the form without really reading it.
Did the requirement on HA to disclose his spent convictions and obtain an ECRC infringe his rights under Article 8 of the Convention ?
Article 8 of the Convention provides:
"Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is 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."
Article 2 of Protocol 1 to the Convention provides:
"Right to education
No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."
Mr De Mello focused his submissions on Article 8. The decision in A v Head Teacher and Governors of Lord Grey School  2 AC 363 is fatal to the argument under Article 2 of Protocol 1. The Claimant has not been excluded from the entirety of the UK's tertiary education sector as a result of the Defendant's decisions (as would be required for him to make good his claim that a breach of his rights had occurred): R(Matin) v. University College, London  EWHC 2474 (Admin), para 64.
I can assume without deciding the question that the University is a public authority for the purposes of the Human Rights Act 1998. The point seems to have been assumed in R(Ben-dor) v University of Southampton  EWHC 953 (Admin), where the claimants argued that the defendant University had interfered with their rights of freedom of expression and assembly, protected by Articles 10 and 11 of the Convention, by withdrawing consent to hold a conference. It was also assumed in R (Ngole v University Of Sheffield (Health and Care Professions Council intervening), supra, where the issue was whether the University had violated Mr Ngole's rights under Articles 9 and 10. But even if it is not, that is not an end of the matter because, as some of the individual cases considered in R (P) v Secretary of State for the Home Department, supra, show, even where disclosure is made for the purposes of employment in the private sector, violations of Article 8(1) may still take place. The issue cannot therefore be avoided even if, as Ms McColgan contends, the University is not a public authority for these purposes.
I accept that HA's spent convictions form part of his private life and thus that it was an interference with his right to respect for his private under Article 8(1) to require him to disclose them and to obtain an ECRC: R(T) v Chief Constable of Greater Manchester, supra, para 18; R(L) v Commissioner of Police of the Metropolis  1 AC 410, paras 24, 27.
The question is therefore whether disclosure of HA's convictions was justifiable under Article 8(2) as being for one of the specified purposes; whether the disclosure was 'in accordance with law'; and whether disclosure was 'necessary in a democratic society'.
I have no hesitation in concluding that the reason disclosure was sought was for the purposes of public safety and the protection of the rights and freedoms of others, and that it was thus for one of the specified purposes in Article 8(2). As I have explained, the University's reason for seeking disclosure was in fulfilment of Standard 1 set by the Council, namely, 'Patient and public safety'. The Council requires character checks to be carried out to ensure that those who enrol on an accredited MPharm course do not have criminal records such as would put the public or patients at risk.
Also, for the reasons that I have given, I reject HA's submission that there was no basis in domestic law for the requirement that he disclose them, and his submission that the interference was not, for that reason, 'in accordance with law'. As I have explained, there was such a basis for the question which the University asked him as part of the application process.
However, that is not the end of the inquiry about whether disclosure was 'in accordance with law'. As the Court of Appeal explained in R(P) v Secretary of State for the Home Department, supra, at paras 16 – 23, the decision of the Supreme Court in R(T) v Chief Constable of Greater Manchester, supra, considered the meaning of this expression in the present context. The judgments of Lord Reed on the one hand, and Lord Wilson on the other, demonstrated a difference of approach to the question what is meant by 'in accordance with law' in relation to the requirement to disclose criminal convictions. Lord Reed, with whom the majority agreed, applying MM v United Kingdom, The Times, 16 January 2013, held that legislation which inter alia required indiscriminate disclosure of data did not result in disclosure that was in accordance with law and thus, notwithstanding that the disclosures in question took place pursuant to statutory rules (namely the Exceptions Order and the 1997 Act), they were not 'in accordance with law'. Lord Wilson, however, concluded that that requirement required only clear and publicly accessible rules of law, which were contained in the relevant statutory provisions.
The Court of Appeal was concerned with a number of appeals relating to the retention or disclosure of criminal convictions and cautions under the revised filtering scheme which I have described. As part of its analysis it had to determine the ratio of the judgment of Lord Reed in R(T) v Chief Constable of Greater Manchester, supra. It was contended on behalf of the appellants that for a scheme to be in accordance with law, there had to be safeguards which allowed proportionality to be examined (see at para 33). For the Secretaries of State it was submitted that the critical analysis which had to be undertaken was to consider the cumulative effect of a number of features of the scheme so that none, on its own could be considered determinative. They submitted that bright lines were permissible and that provision of an individual right of challenge is not a prerequisite (see at paras 33 and 35).
At para 39 Sir Brian Leveson P. (with whom Thirlwall and Beatson LJJ agreed) read the judgment of Lord Reed as meaning that disclosure by the state of personal data which it has collected and stored is not in accordance with law if the features which Lord Reed identified at para 119 of his judgment are not present. Those features are: the nature of the offence; the disposal in the case; the time which has elapsed since the offence took place or the relevance of the data to the employment sought; and the absence of any mechanism for independent review of a decision to disclose data. The President went on to say (para 40) that 'there is no one particular safeguard that converts what is otherwise arbitrary into a scheme that is in accordance with the law', and that a right of individual review is not necessary in every case. He expressly held that bright line rules are permissible, and gave the example of a rule which required the disclosure of murder convictions if work with children or vulnerable adults is sought. But, he said, the more tenuous the link between the offending and the public interest to be protected, 'the more likely the scheme will tip over and fail this initial art 8 hurdle.' At para 41 he said that the features identified by Lord Reed in para 119 were individually neither necessary nor sufficient (my emphasis), and at paras 44 and 45 he went on to conclude that the multiple conviction rule and the serious offence rule did not, individually, lead to disclosure that was 'in accordance with law'. In the majority of the individual cases which the Court of Appeal considered it concluded that, on their particular facts, the interference was not in accordance with law by reason of the nature of the offences and/or the age at the time of the offence and/or the time elapsed between offence and disclosure.
It is, however, important to recognise that the Court of Appeal did not conclude that a requirement for disclosure pursuant to the Exceptions Order and the 1997 Act, as amended, would always violate Article 8(1), merely that in some cases it might do so. The Court said at para 66 that:
"It is not that the concept of the revised scheme necessarily offends Article 8, but it may be that in its operation in individual cases, it does so".
The Court went on at para 120 to cite what Lord Wilson had said at para 59 of R(T) v Chief Constable of Greater Manchester, supra:
"The conclusion about T in the present case is, however, of an entirely different character. It is that, in the light of the circumstances surrounding his receipt of the warnings, the requirement in the 1975 Order that he should disclose them to the college and its entitlement to act in reliance on them violated his rights under article 8. It cannot possibly be said that the operation of the order will always be such as to violate the rights of those required to make disclosure of spent convictions and cautions under it: for in some, perhaps many, cases the circumstances of the conviction or caution will not render its disclosure disproportionate to the objective behind the order."
Further, at para 122 Sir Brian Leveson P. said that there was problem with the operation of the revised disclosure scheme, but only 'at the margins'.
I should note for completeness that leave to appeal to the Supreme Court has been granted in R(P) v Secretary of State for the Home Department, supra, and the appeal is due to be heard in 2018.
Paragraph 88 of HA's Skeleton Argument argues:
"Even if the ROA 1975 did apply to the Defendant's request for disclosure of spent convictions, the 1975 Order is not in accordance with the law, for the very same reasons expounded in R (R) v The National Police Chief's Council & Anor at §§ 84-88, and in R (T) v SSHD §§ 114 and 119."
A number of general points are then made in para 89 in support of this proposition, but without reference to the facts of HA's particular case or the nature of his particular convictions.
I reject this broad challenge to the revised disclosure scheme involving filtering. As I have explained, the judgment of Sir Brian Leveson P. in R (P) v Secretary of State for the Home Department, supra, does not stand for the proposition that disclosure of unfiltered convictions pursuant to the amended Exceptions Order and the 1997 Act as as amended will always violate Article 8.
Nor does the decision in R (R) v The National Police Chief's Council and another assist the Claimant. Judgment in this case was given by a Divisional Court (Fulford LJ and Green J) on 17 October 2017. The claim concerned the legality of the disclosure and use of a reprimand given to the claimant for the theft of a sarong from a shop in 2007, when she was aged 13. The reprimand by itself precluded her from being considered for employment by the South Wales Police in a staff position and, she argued, had the additional effect of blocking her from being offered employment in any service related to policing in the future including as a police constable. She argued that both the disclosure and the use of this reprimand amounted to an intrusion into her private life which was capable of amounting to a violation of Article 8(1), and that the interference was not justified under Article 8(2).
At paras 76 – 81 the Court held that the police had acted unlawfully in refusing the claimant's job application because of her reprimand. Also, at paras 82 – 93 the Court held that the Exceptions Order did not, on the facts of the particular case, operate in a way which was either 'in accordance with the law' or 'necessary in a democratic society'. It is important to emphasise, however, that the Court did not conclude that a requirement to disclose spent convictions pursuant to a question asked by virtue the Exceptions Order would always violate Article 8(1). The factual context is all-important. At para 15 the Court described that context as follows (original emphasis):
"15. … The criminal record in issue reflects the very lowest level of seriousness. It is a reprimand for group theft of a low value consumer item. The reprimand is now historical relating to conduct committed many years ago. The Claimant has, otherwise, an unblemished record and is of good character. She has a degree in criminology. Prima face, she is a serious candidate for employment within the Police. No one has sought to suggest, by reference to the particular facts of this case, that a serious link can be drawn between the Claimant herself, and any risk caused by employing her to public confidence or to the integrity of the work that she might be asked to undertake as an employee or as an officer. For our own part we can see no sensible or rational basis upon which the reprimand could be relevant to the Claimant's preferred employment. Yet the Police still used that reprimand peremptorily to refuse the Claimant's job application."
It is quite right that at paras 82 – 88 the Court gave a number of reasons for rejecting the Secretaries of State's arguments by way of justification of the bright line disclosure rule in the Exceptions Order, as amended. But, vitally, the Court said at para 88:
"We would add, though we trust it is in any event evident, that our conclusion applies only to low level historical reprimands. We express no views about other cases. It should also be evident that we do not question the broad policy considerations said to apply. Our concern lies with their application to cases such as the present."
It is therefore clear that the Court was reaching a fact specific conclusion on the case before it and that it was not reaching the conclusion that to require a person to disclose spent convictions under the Exceptions Order and the 1997 Act will always result a violation of Article 8(1). To the extent, therefore, that HA relies generally on paras 84 – 88, they do not of themselves provide support for his position.
It should come as no surprise that neither R(P) v Secretary of State for the Home Department, supra, nor R (R) v The National Police Chiefs' Council and another are not authority for the proposition that application of the Exceptions Order will always produce a violation of Article 8(1). That is because such an approach would not be consistent with Strasburg jurisprudence. It is clear from the caselaw, including from Lord Wilson's dicta in R (T) v Chief Constable of Greater Manchester, supra, paras 51 - 52, with which Lords Neuberger and Clarke and Lady Hale agreed, that in Strasburg the inquiry is always:
"51 … into violation in the individual case before the court. When it concludes that the legislation of a state is incompatible with the Convention, the ECtHR is understood to mean not that the legislation will always operate incompatibly but that it operated incompatibly in its application to the individual case …
52 … a declaration of incompatibility is not a declaration that the legislation always operates incompatibly with Convention rights. It is a declaration only that it is capable of operating incompatibly and, almost always, that it has operated incompatibly in the case before the court … In making a declaration of incompatibility of the 1997 Act with article 8, the Court of Appeal was therefore not suggesting that disclosure of spent convictions and cautions in certificates would always violate rights under article 8. Its order in T's case was appropriately qualified, namely that the provisions of the Act were incompatible only 'in so far as they require the disclosure of all convictions and cautions … recorded on central records'" (emphasis supplied).
I have already set out para 59, where he said that in many cases disclosure would not be disproportionate.
In my judgment, the disclosure of the Claimant's convictions was in accordance with the law, and cannot be said to have been arbitrary in the way identified in R(T) v Chief Constable of Greater Manchester, supra, and R(P) v Secretary of State for the Home Department, supra His convictions fell to be disclosed (ie, not filtered) because, each of the following conditions was satisfied in relation to them: (a) they were dated less than five years and six months before the disclosure date; (b) because they were for specified offences, both of which involved violence (or the threat of violence) and one of which involved dishonesty; and (c) there was more than one of them. The cumulative filtering process that applied in relation to HA's convictions in my judgment cannot be said to have produced an arbitrary result that is not in accordance with the law.
There is in my judgment a plainly rational connection between the disclosure of HA's particular convictions and the purpose for which the disclosure was sought, and I reject HA's submissions to the contrary in para 93 of his Skeleton Argument. In its Guidance on student fitness to practise procedures in schools of pharmacy at paras 3.21 and 3.22, the Council specifies criminal convictions for (inter alia) theft and offences of violence as being a category of concern which may call into question whether a student is fit to practise. That is plainly right. The Claimant was seeking access to a course which would require him to work in a clinical setting put him into contact with patients in NHS hospitals. The imperatives of public protection and patient safety and public confidence in the pharmacy profession plainly mean that there is a need to ensure that those who have recent multiple convictions for offences involving violence/threat of violence or dishonesty (or both, as in the case of robbery) are identified at an early stage so that a considered decision can be taken about whether they should be allowed contact with patients. It is no answer to argue, as the Claimant does at para 93, that the operation of the course allows for the 'weeding out' of bad students. The focus of the course tutors is naturally on teaching and ensuring proficiency. Disclosure is concerned with ensuring that the University is in a position to determine at the outset whether an applicant's fitness to practice is impaired because of his or her criminal history. Impairment goes beyond a lack of proficiency. I agree with Ms McColgan's Skeleton Argument at para 52, where she says there is no reason to be confident that observation of students during periods of study and placement would result in discovery of characteristics such as dishonesty or a tendency to violence or sexual abuse which might be evidenced by the disclosure regime.
It is to be noted that at paras 44 and 45 of Sir Brian Leveson's judgment in R(P) v Secretary of State for the Home Department, supra, he considered what he called the 'multiple conviction rule' and the 'serious offence rule' as they were capable of operating in isolation. He was not concerned with a case like the present, where both of those rules, and the recent conviction rule, all operate cumulatively in relation to convictions so as to require disclosure. The superimposition of each of the three disclosure rules ensured sufficient granularity so that infringement of the Claimant's Article 8(1) rights was 'in accordance with law'. Indeed, I find it hard to conceive that any system of disclosure would not require the disclosure of convictions like those which HA has, given their plain and obvious relevance to the question of patient safety and given they cannot, on any sensible view, be regarded as historic.
It follows that I agree with Ms McColgan's submission at para 46 of her Skeleton Argument that a challenge to the lawfulness of the disclosure regime cannot properly be made, as it is at para 89 of the Claimant's Skeleton Argument, in the abstract. On the contrary, as I have explained, the starting point is HA's own offending and the relationship between it and the purpose for which the disclosure is sought. This is not a case, as was the case in the individual cases in R(P) v Secretary of State for the Home Department, supra, where C's convictions were very minor and/or decades old. Although HA was 14 at the time of his offending, the offending was of a serious nature and involved both violence and dishonesty. This offending cannot reasonably be said to have no rational connection to his fitness to practice as a pharmacist. I have set out the Council's own requirements for reporting of criminal convictions and it is the case that the Council would regard HA's fitness to practice as impaired by reason of these convictions (see Article 51(1)(e) of the Pharmacy Order). He would also be required to declare them on his application to the Register (see Rule 10(3)(k) of the Registration Rules).
I turn to the question of whether disclosure was 'necessary in a democratic society'. As the Court said in R (R) v The National Police Chiefs' Council and another, supra, at para 81, the basic test in relation to proportionality is that set out in the judgment of Lord Wilson in R(T) v Chief Constable of Greater Manchester, supra, at para 39, namely: (a) whether the objective behind the interference was sufficiently important to justify limiting the right of the claimant under Article 8(1); (b) whether the measures were rationally connected to the objective; (c) whether the interference went no further than was necessary to accomplish the objective; (d) whether, standing back, a fair balance was struck between the right of the Claimant and the interests of the community. There needs to be an intensive analysis of the facts said to justify the measure in question: see Bank Mellat v HM Treasury (No 2)  AC 700, para 20; R (Ben-dor) v University of Southampton, supra, para 71.
As to the first two questions, the objective behind the regime created by the 1975 Order and by Part V of the 1997 Act was supremely important. As Lord Wilson said in cf. R(T) v Chief Constable of Greater Manchester, para 40, it was to protect various members of society, particularly vulnerable groups such as patients and children, from exposure to persons able and likely to mistreat or neglect them. On any view the contents of the Exceptions Order and of the 1997 Act were rationally connected to the objective.
As to the third question, the requirement that HA disclose recent unfiltered convictions which in his case were for offences of dishonesty and violence went no further than was necessary to accomplish that objective. The disclosure was only to the University for the limited purpose that it could assess HA as part of its admissions process whether HA ought to be admitted to the course. And I conclude that the requirement for disclosure struck a fair balance between the rights of the Claimant and the interests of the community. Protection of the public and patient safety are vitally important public interests which need very high standards of protection. The public rightly expects that all those who may come into contact with patients be they doctors, nurses, or pharmacists should be held to the very highest standards of behaviour and that persons whose character or conduct make them unsuitable to have that contact are not permitted to do so. One way in which they is achieved is by assessing the criminal records (if any) of such persons. Although I accept that requiring disclosure interfered with HA's rights under Article 8(1), there is a sense in which disclosure served his interests, as well as those of the broader public. There would be little point in him completing a four-year MPharm degree course if, when he came to apply to the Council for registration, his application would be rejected because of those convictions (which, as I have said, he would be bound to declare at that stage). It was therefore in his interests that his convictions be disclosed at the outset so that the matter could be dealt with properly by the University in the role that I have described as 'gatekeeper' to the pharmacy profession.
For these reasons, whilst I acknowledge that because HA was required to disclose his spent convictions there was an interference with his right to private life under Article 8(1), that interference was for one of the specified purposes in Article 8(2), it was in accordance with law, and it was necessary in a democratic society.
Was the decision to exclude HA from the MPharm course in accordance with law and a disproportionate interference with his rights under Article 8(1), or otherwise unlawful ?
I accept that the decision to remove HA from the MPharm course resulted in an interference with his rights under Article 8(1) of the Convention because it had the effect of preventing him from pursuing his chosen career: R(L) v Commissioner of Police for the Metropolis  1 AC 410, para 24; Sidabras v Lithuania (2004) 42 EHRR 104, para 48. Thus, it is for the University to justify, if it can, the interference pursuant to Article 8(2).
I can reject straightaway HA's argument that because the FtPP did not have expressly regard to Article 8 during its decision-making process, its decision is unlawful for that reason. As Lord Bingham said in R(SB) v Governors of Denbigh High School  1 AC 100, para 20, the Human Rights Act 1998 is not concerned with defects in reasoning but on whether a substantive Convention right has been violated. Mr de Mello referred me to R(Tigere) v Business, Innovation and Skills Secretary  1 WLR 3820, para 32, but there is nothing in that paragraph which undermines or is inconsistent with what Lord Bingham said.
For the same reasons that I identified in relation to disclosure, the decision to remove HA from the course was because the FtPP panel concluded that his fitness to practice was impaired. In other words, the reason for removing him was to protect patient safety, which falls within one of the specified purposes in Article 8(2).
I have set out the test for proportionality above. In considering whether the decision to remove HA from the course was necessary in a democratic society, it is clear that the court must form its own view on the proportionality of the decision, or what is sometimes referred to as the balancing exercise involved in the decision: R (Lord Carlile of Berriew and others) v Secretary of State for the Home Department  AC 945, para 67; Belfast City Council v Miss Behavin' Ltd  1 WLR 1420, paras 13, 24, 31, 44 and 97.
Among the observations of the Justices of the Supreme Court in Lord Carlile, Lord Sumption JSC indicated that while a court is the ultimate arbiter of the appropriate balance between 'two incommensurate values' – the Convention rights engaged and the interests of the community relied on to justify interfering with it – it is not usually concerned with remaking the decision-maker's assessment of evidence if it was an assessment reasonably open to them. The court is entitled to attach special weight to the judgments and assessments of a primary decision-maker with 'special institutional competence', particularly where they include a predictive element. No review, however intense, can entitle the court to substitute its own decision for that of the constitutional decision-maker and a court of review does not usurp the function of the decision-maker or purport to conduct an appeal on the merits, even when Convention rights are engaged (per Lord Sumption JSC, paras 20, 22, 31-32, 34, 46). He also said at para 20 that an exacting analysis of the reasons put forward in defence of the interference with the Convention right in question. To a substantial degree, the requirements of rationality and proportionality overlap: Bank Mellat v. HM Treasury (No 2)  AC 700, para 20.
In the present case the context is a fitness to practice panel which determined that HA's fitness to practice as a pharmacist was impaired by reason of his convictions and his failure to declare them such that exclusion from the course was the appropriate sanction. The University's Fitness to Practise Policy and Procedure states:
"Students enrolled on courses leading to a professional qualification may have responsibilities over and above those of other students at the University. This particularly applies to any professional Codes of Conduct that students are required to comply with whilst undertaking their training.
A student's alleged misconduct may be considered to be contrary to behavioural expectations required by the courses professional code. In such circumstances consideration must be given to the possibility that they could put patients/clients/the public or other students at risk. A student's Fitness to Practise is called into question when their conduct, health or competence raises a serious or persistent cause for concern about their ability or suitability to continue on a course.
The purpose of the panel is to consider formally whether a student is fit to practice, and what sanctions, if any, should be imposed on a student.
Panels must act in a proportionate way by weighing the interests of patients/clients and the public against those of the student.
The panel must ensure that any warning or sanction is proportionate to the behaviour found proved, and that it will be dealt with effectively with the fitness to practise concerns."
Hence, whilst it was constituted under the auspices of the University, the FtPP was in substance acting as something akin to a professional disciplinary body.
Mr De Mello made a number of criticisms of the FtPP's decision and reasoning. He criticised the absence of any clear finding that HA had acted dishonestly in not disclosing his convictions; that when considering sanction the panel had not 'worked upwards' from the least serious to the most serious sanction; and that the panel's reasons for imposing the sanction of exclusion did not make any reference to any mitigating factors; and that there was little by way of reasoning to explain why it had decided on the most severe sanction of excluding HA from his course and any other professional programme.
In response, Ms McColgan submitted that I should have deference for the FtPP's decision: see eg, Marinovich v General Medical Council  UKPC 36, para 28 (a professional conduct committee '… is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession'). She accepted, I think, that the panel's reasoning was not overburdened with detail, but said that it was sufficient.
In my judgment, there are a number of flaws in the FtPP's reasons which mean that its determination that HA should be excluded from the course cannot stand. My conclusion does not involve any infringement of the principle that I must have deference to the determination of a tribunal with 'institutional competence'. It rests upon ordinary principles of public law applied to the facts of this case.
Firstly, there is little or no hint in the reasons that the panel took into account mitigating circumstances. It was required to do so under the express terms of the Policy and Procedure that it was bound to follow. That states:
"Any mitigating factors must be considered by the panel when it is deciding on the appropriate outcome. The civil standard of proof should be applied, ie, the facts must be found proven on the balance of probabilities."
Also, the Council's Guidance on student fitness to practise procedures in schools of pharmacy states at para 4.6 that, 'All decisions must be taken in the light of guidance issued by the GPhC …' and at para 4.27 that:
"When a panel decides to impose a sanction, it should make it clear in its determination that is has considered all the options. The panel should also give clear reasons, including any mitigating or aggravating factors that influenced its decision, for imposing a particular sanction. In addition, the determination should include a separate explanation as to why a particular length of sanction was considered necessary."
The FtPP simply stated that 'due to the seriousness of [HA's] convictions and the failure to declare these at any of the available opportunities', exclusion was the only appropriate sanction. There is no evidence that the panel took into account any mitigation at all. In my judgment there were a number of mitigating factors which the panel should have positively considered. First, there was the fact that HA was only 14 at the time of the offences and 15 at the time of conviction. Second, there was the fact that HA immediately approached Mr Gay after the lecture to inform him about his criminal record. I will deal later with the point about whether he only mentioned one conviction, but what is undeniable is that HA brought the matter to the University's attention. He at least made an attempt to remediate his failure to disclose during the application process. Third, there was the expression of remorse for his actions by HA both at the time of his convictions, in writing in advance of the hearing and at the hearing. Fourth, there was the reference from his sixth form college that throughout his A-level courses he had been a 'courteous and well behaved' student.
During the hearing Mr Gay addressed the panel on HA's age and said '… although we've said [H] was 14 at the time, that's well above the age of criminal responsibility in the UK. So I think that's still raises doubts in my mind'. Given that statement, the question of HA's age needs careful consideration. In its Definitive Guideline on Sentencing Children and Young People, the Sentencing Council says at para 1.5:
"It is important to bear in mind any factors that may diminish the culpability of a child or young person. Children and young people are not fully developed and they have not attained full maturity. As such, this can impact on their decision making and risk taking behaviour. It is important to consider the extent to which the child or young person has been acting impulsively and whether their conduct has been affected by inexperience, emotional volatility or negative influences. They may not fully appreciate the effect their actions can have on other people and may not be capable of fully understanding the distress and pain they cause to the victims of their crimes. Children and young people are also likely to be susceptible to peer pressure and other external influences and changes taking place during adolescence can lead to experimentation, resulting in criminal behaviour. When considering a child or young person's age their emotional and developmental age is of at least equal importance to their chronological age (if not greater)."
I completely accept the point that the imposition of sanctions for professional misconduct serves a different purpose than does a sentence following a criminal conviction, and that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases, per Sir Thomas Bingham MR in Bolton v Law Society  1 WLR 512, 518 – 519. But the Master of the Rolls also made clear that they were to be given some weight. Also, the exercise which the FtPP were engaged in was an assessment of HA's culpability and, in turn, what impact that had upon his fitness to practice. Therefore, it seems to me to be obvious that the points made in the paragraph I have just quoted were highly relevant to the question of whether HA's fitness to practice as an adult student pharmacist was impaired by his offences committed aged just 14 to such an extent that the protection of the public required that he be removed from the course, or whether his convictions were just the product of childish behaviour which was firmly in the past. Indeed, that was HA's case. He told the panel (sic):
"I know what I did was wrong but I know I was acting like a child and I was immature and at the time, here at the moment, you just, you don't think of what you're doing and now it's been how many years since that I learn from it and I know going through all the process of all that, I don't want to do it again. You understand and then it's not worth it.
When I was 14 I didn't really like think about these things as in how it could affect my life in future. It was just at the moment and concerning the robbery, yes, that's what I was charged for, I didn't walk away but I'm not. You're right that I stood there but if you're with your group of friends you're not going to walk away from them."
The FtPP's failure to consider the quite considerable mitigation which I consider existed was a fundamental failure which vitiates its decision. In effect, it completely ignored HA's submissions to it. Hence, in Wednesbury terms it ignored a highly relevant matter when reaching its decision. Applying a proportionality analysis, the panel failed to strike a fair balance between, on the one hand, the protection of the public and, on the other, the rights of HA. Whichever prism the panel's reasoning is viewed through the result is the same. Its decision is unlawful. In order to reach a proper and lawful decision on sanction the panel had to identify the relevant aggravating and mitigating factors and weigh them appropriately in a reasoned way. I am not saying that the panel would not have been entitled to exclude HA after they had considered all of the relevant matters. Had they followed the relevant policy and guidance and reached a decision to exclude him then I would have been bound to have had considerable deference for that determination, in accordance with the authorities I have already mentioned. But they did not do so.
As a subsidiary point, I also consider that the FtPP erred by not considering sanctions in the ascending order of seriousness. This is the approach set out in the Council's Guidance on student fitness to practise procedures in schools of pharmacy at para 4.12:
"The panel should consider the options available starting with the least severe and moving to the next outcome only if satisfied that a warning or lesser sanction is not appropriate."
This is approach is also required by the principle of proportionality. As I have explained, one aspect of that is whether an interference goes no further than is necessary to accomplish the objective (which in this case is protection of the public and patient safety). Working upwards from the least serious sanction ensures that outcome is achieved. The point is neatly expressed in the General Medical Council's Sanctions Guidance which it has produced for members of the medical practitioners tribunals and for the General Medical Council's own decision makers. Under the heading 'Taking a proportionate approach to imposing sanctions', the Guidance states at para 20:
"In deciding what sanction, if any, to impose the tribunal should consider the sanctions available, starting with the least restrictive. It should also have regard to the principle of proportionality, weighing the interests of the public against those of the doctor (this will usually be an impact on the doctor's career, eg a short suspension for a doctor in training may significantly disrupt the progression of their career due to the nature of training contracts)."
Again, had the panel properly applied this approach they may still have imposed the sanction of exclusion. But by jumping straight to exclusion as the appropriate sanction the panel risked acting disproportionately. I probably would not have quashed the panel's determination had this criticism stood alone (as I have already said, what matters is not the quality of the decision making but whether the decision was actually disproportionate), but it reinforces my conclusion that the failure to consider the mitigating features means that the decision cannot stand.
The next reason I consider that the panel erred is that I do not consider that it was properly open to it to conclude that HA had failed on more than one occasion to disclose his convictions. In its determination, as I have said, the panel referred to him as having failed to declare them 'at any of the available opportunities' (plural). I asked Ms McColgan during the argument when the other occasion(s) besides the initial application was or were when HA had failed to declare his convictions, and she said that the University's case was that it was when he spoke to Mr Gay after the lecture. But in my judgment it was not rationally open to the panel to conclude on the evidence it heard that there was any such failure by HA. The evidence was as follows:
"Mr Gay (DG): … [H] approached me shortly after the end of that lecture and mentioned one conviction. We didn't discuss it in detail because I don't like to in that situation. I would rather wait until we've got the DBS certificate at that point. In due course, in October the DBS certificate came through and you have a copy of it with 2 convictions on …
HA: You know the first thing when I came to my
DG: In Welcome Week, do you mean ?
HA: Yes, you told me about Fitness to Practice, I didn't get a chance to explain fully like what are my convictions.
HA: And that's why I didn't tell you about all of them.
HA: If that's
DG: I agree we didn't discuss them at that time because it was not appropriate. You did tell me you had a conviction but we didn't discuss any detail at all.
Andrew Cooper (Panel Member): Just to ask you David to clarify the circumstances, there was an attempt to tell you about these offences before the DBS check
DG: Before the DBS check came through. Yes.
AC: And you knew about the one offence.
AC: There wasn't sufficient time to have a full conversation, I guess.
DG: If I recall correctly [H] approached me and indicated that something would come up on his DBS certificate. He mentioned that one offence.
AC: So this was immediately after.
DG: It was immediately after the lecture.
AC: Thank you.
DG: Or very soon after the lecture. Might not be but it was very soon after.
AC: Thanks for that.
DG: I declined an opportunity to discuss it at that point because the DBS certificate would be through within a matter of weeks and it seemed more appropriate to wait until we'd got the full information."
The evidence was therefore quite clear that HA approached Mr Gay, mentioned that he had a conviction, at which point Mr Gay 'declined the opportunity' to discuss the matter further at that stage. HA stated directly, 'I didn't get a chance to explain fully like what are my convictions' and Mr Gay did not demur from that statement. Hence, the panel was simply wrong to characterise this as a second failure by HA to declare his convictions, when what actually happened was that he attempted to do so but was stopped by Mr Gay. It was never suggested to him that he had held back information and was trying only to declare a single conviction to Mr Gay. Given that the DBS certificate would (as he knew) show both convictions, such a suggestion would have been implausible. But if such a suggestion was going to be entertained by the panel then fairness demanded that it should have been put to HA so that he could address it directly.
This irrational finding of fact by the FtPP plainly impacted on its determination that HA should be excluded from the course. It is clear that the panel was concerned not just with the fact of HA's convictions, but was equally concerned about his failure to declare them. Although its reasoning is sparse, the panel said that it was 'concerned at the seriousness of the convictions and at your failure to declare these at the appropriate times' and, as I have said, it declared that exclusion was the appropriate sanction because of his failure to declare his convictions 'at any of the available opportunities'. Hence, it twice referred to more than one failure to disclose by HA, from which I draw the conclusion that it regarded this, wrongly, as an aggravating factor. In light of this, its determination cannot stand.
For these reasons, the University's decision to exclude HA from the MPharm course is quashed.
Copyright Policy |
Donate to BAILII