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QUEEN v. CHIEF CONSTABLES OF `C' and `D' EX PARTE `A' [2000] EWHC Admin 408 (25th October, 2000)
Case no: CO/2840/2000
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
Wednesday, 25 October, 2000
BEFORE:
THE HONOURABLE MR JUSTICE TURNER
-------------------
THE QUEEN
-V-
THE CHIEF CONSTABLES OF `C' & `D'
EX PARTE `A'
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
____________________
TIMOTHY STRAKER QC and PAUL GREATOREX (instructed by the County
Solicitor) appeared for the 1st Respondent
NIGEL GIFFIN (instructed by the County Solicitor) appeared for the
2nd Respondent
GERARD CLARKE (instructed by the National Association of Head Teachers)
appeared for the Applicant
____________________
Judgment
As Approved by the Court
Crown Copyright ©
TURNER J:
Introduction
1. This application for judicial review is brought to quash
`decisions' allegedly made by the two respondents. By those `decisions' the
first respondent C had disclosed non-conviction information about the applicant
to the second respondent D who in turn disclosed that, together with similar
information obtained from the B Constabulary to the applicant's prospective
employers. Following the application for permission, the two respondents gave
undertakings to the court not to disclose any information about the applicant
until the substantive hearing of the application. In addition to the
application to quash the two `decisions' the applicant also seeks declarations
that neither respondent is entitled to disclose any such information and that
past disclosure amounts to a breach or breaches of the Data Protection Acts of
1984 or 1998.
2. The applicant contended that the decisions concerned were unlawful
because either they were contrary to relevant Home Office guidance and/or the
Data Protection Act 1984 or 1998 and/or Article 8 of the ECHR and/or the
principles of natural justice and/or Wednesbury principles.
3. The applicant is a school teacher who happens also to be a
homosexual. In broad outline, this case is concerned with the fact that in C
as well as in B complaints had been made about the applicant's conduct towards
pupils which led to police investigation, but which did not lead to criminal
proceedings. During 1999, the applicant applied for employment by D Education
Authority. A conditional offer of employment was made. The local constabulary
D were requested to perform a child access vetting enquiry in respect of the
applicant. As the result it obtained the information concerning the previous
police investigations which it then passed over to the County Education
Authority. It is the actions of the two respondents in passing over the
information from the one to the other and then to the Education Authority of
which the applicant complains in these proceedings. He claims that the
consequence of their having done so was to cause the offer of employment to be
withdrawn.
History
4. The history of the case is as follows. On 20 July 1999, the
applicant attended an interview for the headship of an infants' school in D.
He was offered the post with a starting date of 1 January 2000. The applicant
was called back for interview on 8 December. He was then informed that the
offer of employment was withdrawn due to the entry of an incorrect date on his
application form. Apparently this related to an employment which the applicant
had held some eight years previously. He was also informed that the Authority
had received a negative police check the details of which it was unwilling to
divulge. It remains a suspicion in the applicant's mind that it was not the
inaccurate information which had led to the withdrawal of the offer but the
results of the police check.
5. The application form which the applicant completed and signed
contained declarations to the effect that the applicant had neither convictions
nor cautions for sexual assault and that there were no cases pending of a
similar character. It was part of the printed pro forma that the
applicant also `agree(d) to a police check being made for the existence and
content of any criminal record' he had and that `spent convictions (would) be
disclosed'. On the lower part of the pro forma there is a
section described as being for LOCAL EDUCATION AUTHORITY USE ONLY. This is
section of the form is in the nature of a request to the relevant police
authority and states that "The above named will have substantial access to
young persons under the provisions of the Joint Circular 44/86; 102/88; 9/93.
Please check for any record of convictions or cautions".
6. The relevant circular is 9/93. Only the passages in the document
which bear on this case are set out below.
SUMMARY OF CONTENTS
This Circular published jointly with the Home Office, the Department of Health,
and the Welsh Office, provides at Annex A, revised guidance about the
arrangements for criminal background checks on persons appointed to work with
children.
SUBSTANTIAL ACCESS
To qualify for a police check, posts should entail a substantial level of
access to children which may be unsupervised, and will be regular or sustained.
Many of those staff in the list given in paragraph 17 [which includes the post
for which the applicant was applying] will have substantial access to children
in these terms and, therefore, should be checked through these arrangements.
In some cases, however, the situation may be less clear. ... .
THE POLICE CHECK
For all posts covered by these arrangements, the police check will be made
against national and local police records. The national records include
details of:
persons convicted of reportable offences, that is broadly speaking, those
offences for which a term of imprisonment may be given; and
persons who are to be prosecuted for such offences.
Depending on the policy of the police force concerned, local police records may
contain details of:
convictions for certain minor offences,
cautions,
bind-overs (including those where there has been no conviction), and
other relevant factual information which the police would be prepared, if
necessary, to present as evidence before a court or a tribunal. This may
include information about acquittals or decisions not to prosecute where the
circumstances of the case give cause for concern.
Information from local records, other than details of convictions,
non-conviction bind-overs and cautions, should be disclosed only on the
authority of a police officer of the rank of Assistant Chief Constable, or
above or, where appropriate the Head of the National Identification Bureau.
SENIOR NOMINATED OFFICER
With the exception of non-metropolitan district councils or, subject to the
agreement of the local police force, a small number of senior officers (eg
assistant director or equivalent) in each relevant department should be
responsible for the operation of the procedures, and in particular for:
overseeing the checking procedure within the authority ...
ensuring that requests fall within the terms of this circular;
ensuring that information received from the police is released only to those
who need to see it; ...
PROCEDURE
A police check should not be requested until a conditional offer of employment
has been made. A check should not be made if an applicant is found unsuitable
for other reasons.
Requests for a police check should be sent to the chief officer of the police
force in the area in which the applicant has applied to work. They will liaise
as necessary with the applicant's "home" force. Requests must be made in a
form consistent with the model lay out shown [and used in the present case].
The applicant must sign the form or give his permission in writing for a police
check to be carried out. It should be made clear to the applicant that refusal
could prevent further consideration of the application.
**************
Where information provided by the police differs from that provided by the
applicant, and it is of significance, the employing authority must discuss it
the discrepancy with the person before reaching a decision whether to
appoint.
Where there is disagreement, the person should have the opportunity to see the
information provided by the police. ....
7. It is clear that if the provisions of the Circular are
strictly adhered to there is controlled, and only controlled, access to what
may be described as `sensitive information' which ought not to be divulged
except on the authority of a police officer of appropriate rank and then only
to any person who is in a post of an appropriately senior position to receive
it. The purpose behind this is plain, namely that information of a
confidential nature about an individual will be kept out of the public domain
and will only be made available to those working in a limited range of
positions in a public body who have a real need to receive it. Similarly
those, who are required to obtain such information in order to pass it on to an
appropriate authority, should themselves give consideration to the existence of
need to pass it on.
8. The applicant has at all times strenuously denied that he has at any
time behaved indecently towards any child in his charge. The allegations
investigated by the separate police forces were, he contends, false in the
sense of having been motivated by malice. For the purposes of this judgment it
is a matter of no consequence whether the allegations were false or not. It is
not competent for this court to carry out any form of enquiry as to the truth
or falsity of the allegations.
9. It was the case for the applicant that disclosure, of the kind which
occurred in this case, should only take place when there was a pressing need
supported by cogent evidence. There was neither pressing need nor cogent
evidence in the case of either disclosure. In particular when allegations
which raise suspicion, and no more, are made disclosure should be the exception
and not the rule. It makes no difference that in the present case one public
body was disclosing to another. The `pressing need' test had still to be
applied. All that the second respondent had done was to have applied a low
level of relevance to the question whether it should have disclosed or not.
The disclosures
10. The disclosures of which the applicant complains were contained in
a letter written by an assistant chief constable of D on 6 December 1999 and
was in the following terms:
Our enquiries ... reveal an investigation was carried out by the C Constabulary
following allegations of inappropriate behaviour with children at W... Primary
School in 1998 whilst employed as Headteacher.
We have also established that a similar investigation was carried out by B
Police following previous allegations of inappropriate behaviour towards
children at S... Primary School in 1996 whilst employed as a Reception
Teacher.
The investigations were independent of each other albeit of a similar nature.
The allegations included specific instances of indecent assaults on boys. The
Crown Prosecution Service decided there was insufficient evidence to charge Mr
A... with any offences following the investigations.
In view of the matters referred to above, I have no hesitation in disclosing
the information to you. However, I am concerned that Mr A... may be currently
employed in a position where other children may be at risk, albeit in another
County and with another Education Authority. If you are able to confirm this
then could you please contact me in order that I can ensure that this
information is passed to the appropriate County Education Officer.
The disclosure made by the C Constabulary was in response to a request
dated 7 September 1998 and consisted of a detailed history of the whole
investigation. It was submitted that C had not considered the relevant test
for disclosure which had been identified in the case of R v. Chief Constable
of the North Wales Police and Others, ex parte Thorpe and Another [1999] QB 396.
Applicant's case
11. It will be recalled that the decision in ex parte Thorpe
was one which arose out of the decision of a senior police officer to reveal
to the owners of a caravan site information which had been published in the
local press concerning the convictions of the applicant and his wife of various
paedophile offences. Thereupon the owners had requested the applicants to
vacate the site, which they did. The applicants then commenced proceedings for
judicial review seeking declarations that the policy and the decision to inform
the caravan site owners were both of them unlawful. Although the case was
presented on a different basis in the Court of Appeal, the decision of the
Divisional Court was nevertheless approved. In a passage of the judgment which
is to be found at p428 Lord Woolf MR said
Each case must be judged on its own facts. However, in doing this, it must be
remembered that the decision to which the police have to come as to whether or
not to disclose the identity of paedophiles is a highly sensitive one.
Disclosure should only be made when there is a pressing need for that
disclosure. Before reaching their decision as to whether to disclose the
police require as much information as can reasonably practicably be obtained in
the circumstances. In the majority of the situations which can be anticipated,
it will be obvious that the subject of the possible disclosure will be in the
best position to obtain the information which will be valuable in assessing the
risk. In this case the gist of what Detective Sergeant Lewis had learnt about
the applicants should have been disclosed to them.
It should be noted that the case had been presented to the Court of
Appeal as one of procedural unfairness and not, as had been the position in the
Divisional Court, one of harassment, breach of confidence or misfeasance in
public office.
12. Criticism was directed at the C Constabulary because, the request
had come from another police force, they had treated it as routine and had not
applied the pressing need test. Inferentially, the point that was being made
was that before responding to D's request, C should have gone through the
rigorous series of tests which the Home Office Circular suggests should be
carried out. C had also taken the view that the exchange of information
between police forces was governed by the requirements of data protection and
the "rules and legislative provisions which allow us to transfer such
information"; see witness statement of the Assistant Chief Constable of the C
Constabulary. This witness also confirmed that he would not have expected to
have had chief officer involvement in authorising the exchange of such
information, as such exchanges are of the essence of police intelligence and
law enforcement agencies nationally.
13. Much reliance was placed on the decision of Dyson J in the case of
R v. Local Police Authority in the Midlands ex parte LM [2000] FLR 612
in which he held that the power to disclose information about non-conviction
matters existed in a case where there was genuine and reasonable belief in the
necessity to disclose for the protection of children. He also held that before
such information was disclosed, in accordance with the decision in ex
parteThorpe (above), each case should be considered on its own facts and
that a blanket approach to disclosure was impermissible. No such disclosure
should be made unless there was a pressing need, in the public interest so to
do. Thus, there had to be a balancing exercise carried out in which the need
to protect children, on the one hand, was set against the need to safeguard the
rights of the individual, on the other. Dyson J went on to hold, see holding
(4) in the headnote
Even if the correct test had been applied, the decision to disclose would have
been unlawful. Disclosures of allegations of child sex abuse can have grave
consequences and so there must be real and cogent evidence of a pressing need
for disclosure. There was no such evidence here. To have disclosed the
allegations would have been irrational.
The facts in ex parte LM can be briefly stated. The applicant
was a bus driver with a contract to run a school bus service for a local
education authority. He was asked to complete a form which would permit the
local authority to run a police check on him. The check revealed that there
had been two incidents which had come to the notice of the police, respectively
some seven and ten years before. In neither case had proceedings been brought
against him. His contract was subsequently terminated. In the course of his
judgment, Dyson J had referred to the decision in ex parte Thorpe and
Article 8 of the ECHR and continued at p622
In my view the guiding principles for the exercise of the power to disclose in
the present case are those enunciated in (ex parte Thorpe). Each of the
respondent authorities had to consider the case on its own facts. A blanket
approach was impermissible. Having regard to the sensitivity of the issues
raised by the allegations of sexual impropriety made against LM, disclosure
should be the exception, and not the rule. That is because the consequences of
disclosure of such information for the subject of the allegations can be very
damaging indeed. The facts of this case show how disclosure can lead to loss of
employment and social ostracism, if not worse. It is true, as Mr C pointed out
in his letter ... Lord Woolf referred to the requirement of a pressing need for
disclosure to `members of the public'. But that was because on the facts of
the case the persons to whom disclosure was to be made were members of the
public. The same principle applies regardless of the identity of the person or
persons to whom disclosure is to be made.
In later passages of his judgment, Dyson J considered some of the
factors which to him appeared relevant, on the facts of that case, for the
purpose of performing the balancing exercise.
14. Basing himself on ex parte LM, counsel for the applicant
submitted that (a) disclosure should only be made when there was a pressing
need for that to take place (b) this required a detailed consideration of the
case by a person of some authority (c) the test was the same for whatever
authority was the disclosing authority and (d) there was a distinction between
an operational enquiry on the one hand and information which would be disclosed
in response to a child access vetting enquiry made by an outside police force
on the other. It was necessary for the force which was responding to the
request to analyse the information which was available to it, before passing it
on, or there was a risk that the receiving force might give it more weight than
it should. The C force was also in error in not providing an opportunity for
the applicant to comment on the information before passing it on to D. It was
suggested that, following an observation by Kennedy LJ in Woolgar v. Chief
Constable of Sussex Police [2000] 1 WLR 25, the applicant should have been
informed what the authority intended to do in order that he could consider
making an application to the court for its assistance; see p37 of the judgment.
Thus, it was submitted that the point was one where there had been a breach of
the principles of natural justice.
The case for C
15. On behalf of C it was submitted that the principles which govern
disclosure of information between police forces should be seen differently from
those which govern disclosure by a public authority to the public and, also,
from the police as a public authority and, say, a local education authority.
As a matter of law, it was submitted that there was an obligation on police
forces to co-operate with each other in performing their law enforcement
functions.
16. Under section 1 of the Police Act 1996, England and Wales are
divided into police areas which differ in size and geographical spread. A
constable has all the powers and privileges as such throughout the area covered
by two countries; section 30. It is apparent from these and other provisions
that there is a measure of central direction and control such that in a
practical sense it is not realistic to expect separate police forces to operate
as though `Chinese walls' were erected between them. It was of the essence of
police intelligence that there were no bars to the provision of information in
the possession of one police force being freely passed to another.
17. Analysis of the applicant's claim, it was suggested, showed that it
involved two different propositions. The first was that the transfer of
information between forces was subject to the same constraints as if it were to
take place between a police force and a non-public authority. Secondly, it
must be the applicant's case that, before C provided information to D, he
should have been afforded the opportunity to make representations to C why
there should either be no, or only modified disclosure.
18. As to the first of these, the outstanding point is that the
exchange of information between police forces is both a proper and essential
function of efficient policing. By virtue of the provisions for co-operation
contained in the Police Act, the law expressly contemplates that there will be
widespread exchange or transfer of information between forces. It was
submitted that the common law did not require that a person had to have, or as
here merely suspected of having, committed offences. Such was not expressly
illegal. There was no inherent procedural impropriety and there was no element
of irrationality in making that transfer. On these bases there were no grounds
upon which the court could, in the circumstances of this case entertain an
effective application for judicial review of the actions of C Constabulary.
19. It was submitted that the only point which might be arguable was if
the applicant ought to have been afforded the opportunity to make
representations, and this had been denied; that would have amounted to
procedural impropriety. As against this submission, there was no statutory
requirement that such should take place. The Data Protection Act 1984, had no
application to this case because it only applied to information which was
automatically processed. The Data Protection Act 1998, which significantly
was passed in the same year as the Human Rights Act, however, recognises that
information of the kind which is involved in this case is "sensitive personal
data"; as to the meaning of which, see section 2. Under this Act, personal
data which are processed for the prevention and detection of crime are exempt
from the first data protection principle (which requires that personal data
shall be processed fairly and lawfully under Schedule 1 part 1 of the Act) if
one of the conditions in Schedule 2 and at least one of the conditions of
schedule 3 are met. These conditions are (Schedule 2), so far as material to
this case either that it is necessary for the taking of steps at the request of
the data subject with a view to entering into a contract or that the processing
is necessary for the exercise of functions of a public nature exercised in the
public interest. Under paragraph 7 of Schedule 3 processing which is carried
out for the exercise of any functions conferred on a person by or under any
enactment is exempt. Data which are processed in circumstances specified in an
Order made by the Secretary of State are also exempt. The Order known as the
Data Processing (Processing of Sensitive Personal Data) Order 2000 has been
made by the Secretary of State. Article 2 provides that
The circumstances specified in any of the paragraphs in the Schedule to the
Order are circumstances in which sensitive personal data may be processed.
Paragraph 10 of the Schedule provides that
The processing is necessary for the exercise of any functions conferred on a
constable by any rule of law.
It cannot therefore be demonstrated that there has been any breach of
the Act of 1998, which, it should be noted, was not even in force at the date
when the information in the present case was transferred. Even if it had, and
the information was not exempt, there are extensive enforcement provisions in
the Act itself which would, until exhausted and on general principles, exclude
remedy by way of judicial review for breach of its substantive provisions.
20. It was submitted that the act of transfer by C to D did not, by
itself have any adverse effect on the applicant's private life. The
information remained confidential to that other police force until it took
action to dispense the information either to the public or to another public
authority, as happened here. Accordingly, there was neither prospective nor
actual breach of any of the applicant's human rights.
21. Turning to the facts of the case which was sought to be made
against C, it was submitted that the response which had been made dealt with
the questions on the basis that it was another police force which would have
ultimately to consider what it would do with the information which was to be
transferred. The Assistant Chief Constable was not concerned to claim that he
had taken personal responsibility before the information had in fact been
transmitted. In paragraph 38 of his witness statement the officer said that he
had been fully aware of the procedure which had been followed "from (his)
regular updates on the case" and accepted "organisational responsibility for
the decision taken by his staff and approved of it". Reference was made to the
statement of Mr Cake (see below) where he said that the D Constabulary "takes
its own independent decision as to what to disclose ... to third parties", in
support of the proposition that it was for the receiving force to decide how
the information it received should be treated.
22. Properly understood, neither the decisions in ex parte LM
nor ex parte Thorpe were concerned with the position concerning
disclosure or transfer of information between police forces. It was submitted
that what Dyson J said, in the former case, at p622
The same principle, however, applies regardless of the identity of the person
or persons to whom disclosure is to be made.
And at p624
Mr C considers that a different public interest test should be applied. For
the reasons that I have already given, I think that Mr C was wrong about
that.
was wrong if it was intended to apply to inter-police transfers of
information. It was submitted that it would not be right to assume that the
learned judge had had in mind´ a situation in which one police force
communicated with another when each had a similar obligation to fulfil.
The case for D
23. On behalf of D Constabulary it was accepted that information of the
kind in issue here should only be disclosed on the basis of `pressing need'.
There were four limbs to the case that D faced. These were:
A. That the Constabulary had asked itself the wrong question;
B. It had reached an unreasonable conclusion (Wednesbury irrationality);
C. It failed to investigate the allegations before making disclosure;
D. It had failed to afford the applicant an opportunity to make
representations before passing the information to the LEA.
These points will be considered in turn.
A. It was material to note that the Assistant Chief Constable, who
had reviewed the decision of his predecessor (now on long term sick leave) who
had actually taken the decision to disclose, said in his witness statement that
the decision to disclose had not been taken automatically. There was a policy
in force under which advice was taken internally and a decision was taken to
apply the principles in ex parte Thorpe. The present Assistant Chief
Constable said that he would have reached the same decision; see paragraphs 6
to 9 of Mr Cake's statement.
B. A proper understanding of the lengthy and detailed process of reasoning
contained in paragraphs 10 to 18 of Mr Cake's statement provided a sufficient
indication that the decision was not irrational, in the Wednesbury
sense. In summary, weight was attached to the views of the officers who had
investigated the complaints which had been made to the police in both B and C.
Those views were that there was no reason to suspect that the complaints were
other than genuine and well founded. Furthermore, it was not an irrelevant
consideration that there had been complaints of a similar nature in a school
setting, in two separate counties within the relatively short timescale of two
years.
24. In this context, there had also to be addressed the question of
`pressing need'. It was submitted that a decision by one public authority, the
police, to another in the position of a local education authority was not,
pace Dyson J in ex parte LM, to be equated with publication to
members of the public as in ex parte Thorpe. It was submitted that
there was no basis for any assumption to be made that the LEA would not treat
the information otherwise than in accordance with the guidance in the Circular
and that it would accordingly deal with the information only in accordance with
the `need to know'. It was unarguable that the applicant was a person who fell
within that class of persons who would have substantial access to young and
vulnerable children. So, it was submitted that, even if the allegations which
had been made only carried a low possibility of being true, the risk in that
event was one in which that there was a pressing need for the LEA to have been
notified.
25. Finally, the welfare of the children in respect of whom the risk
existed was a matter of paramount consideration. They have rights under the
ECHR which are entitled to respect; see Article 8(2).
26. C While accepting that the pressing need test was apposite, it was
submitted that it was relevant to enquire for what purpose the information was
to be transmitted by the D Constabulary. In this context it was further
submitted that there was no duty upon it to re-investigate the original
allegations and form its own view as to their truth or falsity. No more was it
any part of the Constabulary's function to decide whether or not the applicant
should be appointed by the education authority who were in the best position to
evaluate the materiality of the information. On the contrary, it was the duty
of the Education Authority to make its own assessment of the information to
enable it to decide whether or not to confirm the appointment. In making the
decision to what extent it should assess any of the information before passing
it on, it was material to consider that it was to be passed to another
authority operating in the public field which had a specific duty to consider
the interests of child protection. There was no basis for D to doubt the
opinions of the B and C police officers who had carried out the original
investigations. There was plainly, however, a duty on D to assess whether or
not there was a pressing need for the education authority to be given access to
the information to enable it to discharge its functions satisfactorily.
27. D Although Mr Cake has accepted that he would have permitted the
applicant to make representations (see paragraph 21 of his statement), further
that he would be prepared to receive representations if the issue arose again,
it was contended that it was now impossible to ascertain why they had not been
sought by Mr Furnace (the officer now on long term sick leave). It was not
accepted that it was legally necessary or practicable for a public authority in
the position of D Constabulary to invite representations. It would be
otherwise if it were a question of conveying the information to the public, as
was the case in ex parte Thorpe.
28. The obligation for any public authority to receive any
representations which the applicant might wish to make in relation to the
information, must rest with the authority which would have to decide whether or
not to confirm his appointment.
29. Further submissions were directed to the issue of the applicant's
human rights under the provision of Article 8 of the Convention. There were
two aspects for consideration. The first was whether this Article was engaged
at all. The second was that, even if it were, the second paragraph of it
justified the disclosure of the information because it was "in the interests
... of the prevention of crime, for the protection of health or morals, or for
the rights or freedoms of others". As to the first of these points, the issue
depends on the resolution of the question whether, in putting himself forward
for employment in the public sphere, the applicant is waiving that right, or
otherwise subjecting his private life to an element of intrusion by a public
authority. The pointers in the direction of this being the correct way to
approach this issue are the grant of the permission for a police check to be
carried out which was provided in the form of application to the education
authority. In R v. Worcester County Council and Others CO/4550/99
Newman J considered the question how far the concept of "private life" was
congruent with an individual's employment life. Having referred to
Niemitz v. Germany [1993] 16 EHRR 97, Amman v.
Switzerland (16 February 2000) he said
27. In my view there is little in these cases to support the conclusion that
an implied statement in connection with the suitability of a person to be
employed, derived from the history of his employment, interferes with his
private life. It is information in connection with his public life, in this
instance as a teacher. It does not fall within the bracket for inclusion
envisaged in Niemitz in connection with forming relationships in the
course of business or professional life. It goes to the manner in which he has
conducted his professional life and the implied statement in connection with
his public life.
28. Ultimately each case depends on its own facts, but I extract the following
from the cases:
(1) The "notion of private life" is broad enough to include, to a certain
degree, activities which can be seen to be an aspect of the development and
fulfilment of an individual's personality, for example, in establishing
relationships, even though various activities have occurred in a professional
or business context.
(2) The effect, where appropriate, of including activities in a business and
personal context within Article 8 is limited and selective. It recognises the
conduct as being within private life. It does not extend the notion of private
to an individual's business or professional life.
(3) Activities occurring within an individual's business and professional life
will be encompassed within Article 8 where the dividing line between them and
private life is not clearly distinguishable, for example, where it can be seen
that it has occurred at a place where access to the public is excluded and some
domestic authority is exercised.
30. In my judgment, the reasoning in (Thorpe) and the approval given by
the Court of Appeal to Buxton J's approach (in the Divisional Court; see p415G
to 416C) does not point in the opposite direction. ... . The critical point
which led Buxton J to conclude that Article 8 was engaged, was the conjunction
between communication of information by the police of convictions and the
presence of individuals on the site. This meant that the individuals were at
risk of forever of being hounded and unable to leave the past in the past. ...
. If a person chooses to assert a right to be employed as a teacher or social
worker, he puts himself forward into public life and by that choice information
is released about his public life.
Reference was also made to the observations of Dyson J in R v.
Somerset CC ex p Prospects Care Service 2 CCLR 161 where at p169J, in a
situation not dissimilar to the present, he concluded that the Council was not
required to constitute itself into a tribunal in order to make findings of fact
before it communicated to placing authorities allegations of an adverse nature
concerning the applicants. Reference was also made to passages in the same
judgment at pp170E and 171 C which were to the like effect. The point being
that in each instance the Council was concerned to pass on to another agency
untested allegations concerning the conduct of the applicants. The court was
finally, on this issue, referred to In re W (Minors) (Social Workers
Disclosure) [1999]1 WLR 205, a case concerned with the disclosure from
local authority social workers files of the results of investigations carried
out by social services to law enforcement agencies. As this case turned upon
the interpretation of the Family Proceedings Rules 1991, it is not clear to me
how far they can assist the court in the circumstances of the present case. It
is true, however, that in a general sort of way the decision confirms the great
public concerns that there are about the ready exchange of information which
may bear on the safety of children from all forms of abuse by those who may, by
virtue of their position, be presented with the opportunity to do such harm.
30. In summary, it was submitted on the facts that D had applied the
correct "pressing need test" and that there was such a need for the local
education authority to be informed of the matters disclosed as the result of
the police check. In later detailed written submissions counsel for D
elaborated why he submitted that it had asked itself the correct questions and
arrived at a conclusion which was reasonably open to it. The written
submissions also condescended into detailed matters concerning the quality of
the decision making by both B and C. Having regard to the conclusion which I
have reached in this case, it is unnecessary for me to do more than to say that
I have studied those submissions. Had it been appropriate to embark on an
enquiry into the value to D of the information provided by both B and C, I
would have been minded to find that there was ample material available to D to
have reached the factual decision that it did in these respects.
Discussion
31. It has to be remembered in all these cases that the absence of
conviction, caution or even arrest and prosecution does not mean that the
allegations were not in fact true. Clearly, in a case where there has been no
conviction or admission, great circumspection needs to be shown in handling
sensitive information.
32. In discussing how the court should approach the `decisions' it is
appropriate to take note of the relief which is sought. The two `decisions'
that are challenged are the `decisions' by the two police forces to pass on the
non-conviction information relating to the applicant to bodies which are also
themselves public authorities. Declarations are sought that neither was
entitled to pass on that information and that such disclosure as has taken
place contravened the provisions of the Data Protection Acts of 1984 or 1998.
I propose to decide the last points at the outset.
33. In my judgment the applicant has no basis for making a valid
complaint that there was any breach, or breach which could be properly
entertained in proceedings for judicial review, of any provision in either Act.
As to the earlier Act, it did not apply to information which was manually
processed, as it was here. As to the later Act, although the information
plainly falls within the category of "sensitive personal data", it is equally
clearly exempt from the provisions of the Act by virtue of the first data
protection principle and the provisions of the Data Processing Order
(above).
34. The first ground upon which review was sought was "illegality".
The illegality upon which reliance was based was fourfold as set out above. In
reality the four condense into two only. This is for the reason that the data
protection point proves, as above, to be without any proper legal foundation.
That leaves illegality as formulated by the applicant and consisting either of
failure to have complied with the provisions of the Circular, the principles of
natural justice and Wednesbury irrationality. A failure to comply with
a Government Circular cannot of itself lead to any actionable illegality. It
can, however, properly be relied upon as evidence that a public body which
should observe its provisions has not complied with some other administrative
duty in an appropriate or lawful manner. In the present case, there is an
obligation at common law, and probably also under statute, for police forces to
co-operate with each other and, for that purpose, to provide information to
other police forces which will enable them better to perform their police
functions. As has been seen, neither Act contains any inhibition on the
provision of sensitive information which is, or may be, of value to another
force. No other source of statutory prohibition has been suggested.
35. Breach of one of the conventional elements of natural justice is
probably an inappropriate head under which to base a claim for relief. Natural
justice should not be regarded as a discrete head of relief. As Lord Diplock
said in Council of Civil Service Unions v. Minister for the Civil Service
[1985] 374 at p410
Judicial review has I think developed to a stage today when without reiterating
any analysis of the steps by which the development has come about, one can
conveniently classify under three heads the grounds upon which administrative
action is subject to control by judicial review. The first ground I would call
"illegality", the second "irrationality" and the third "procedural
impropriety". That is not to say that further development on a case by case
basis may not in the course of time add further grounds. I have in mind
"proportionality" which is required in the law of several of our fellow members
of the European Economic Community; but to dispose of the instant case the
three already well-established heads that I have mentioned will suffice.
What was involved in the `decisions' taken by the two police forces was
no more than an administrative act in the ordinary course of performing
functions which it was part of their duty to perform. As Viscount Cave said in
Glasbrook Brothers v. Glamorgan County Council [1925] AC 270 at
p277
No doubt there is an absolute and unconditional obligation binding the police
authorities to take all steps which appear to them to be necessary for keeping
the peace, for preventing crime ...
including, it might be added, protecting vulnerable children undergoing
education against the risk of exposure to paedophiles. In my judgment, it is
necessary to search for and identify the legal principle which may be engaged
at this stage which would justify the court in interfering with what is, on its
face, a purely administrative act which had no direct consequence for the
applicant. In ex parte Thorpe, it is clear that the applicants had been
treated in a way which was procedurally unfair; see p426g-h. The respondents
had accepted that there was such a duty; see p427e-f. I respectfully think
that that was a necessary and correct concession because the rights of the
applicants were likely to be immediately affected as the result of the impugned
decision. It then became a question of deciding whether on the facts of the
case the decision of the police was procedurally fair or not; see p428b.
36. In the present case it is necessary to determine whether the
passing of information from one police force to another amounts to a `decision'
which attracts an obligation that should be judged according to the principles
of procedural fairness. In ex parte Thorpe, information passed from
agencies (police and probation), which operated in the public sphere, into the
public domain. In such a case, it is easy to identify the stage at which
procedural fairness should operate. It is, in my judgment less easy to
identify the existence of such a stage when information is merely passed from
one police force, when both were doing no more than act as a local division of
an agency which has national responsibilities, to another which shares
identical characteristics. The respondents both submitted that neither police
authority was doing more than acting as a conduit for the passage of
information. While the word `conduit' may be a figurative description of what
was done, it does not assist in defining what are the characteristics of an
activity that will attract a duty to act with procedural fairness.
37. In De Smith, Woolf and Jowells Principles of Judicial Review
(1999) the suggestion is made
That entitlement (to procedural fairness) can arise from a statutory duty to
provide a particular procedure, or from a relationship recognised by the common
law, involving deprivation or diminution of a right or protectable interest.
It may also, these days, arise out of a "legitimate expectation" encouraged by
the decision maker.
See p247. In developing this argument, the learned authors
write
In the case law since the late 1960's, the courts have demonstrated
considerable flexibility in their manipulation of the critieria used for
determining the circumstances in which a duty to observe the rules of natural
justice would be implied. And as long as it was remembered that the degree of
procedural formality required by the rules was capable of considerable
variation according to the context, an extension of the range of situations to
which they were applied did not attract the criticism that the courts were
"over-judicialising" administrative procedures. Since 1967, the courts began
to employ the term "duty to act fairly" to denote an implied procedural
obligation - the contents of which may fall considerably short of the essential
elements of a trial or a formal enquiry - accompanying the performance of a
function that cannot, without overly straining linguistic usage, be
characterised as judicial in nature. ... The principal value of the
introduction of the duty to act fairly into the court's vocabulary has been to
assist them to extend the benefit of basic procedural protections to situations
where it would be both confusing to characterise as judicial, or even
quasi-judicial, the decision-maker's functions, and inappropriate on a
procedure analogous to a trial.
See p271 to 273. These quotations are of assistance in identifying the
essential characteristics of the situation in which the law will recognise that
procedural fairness is reuired. Thus, there must be something in the nature of
a decision. Secondly, that decision must be one which will affect the rights
of an individual, whether by diminution or removal.
38. So long as, in the instant case, no public authority had taken a
decision which had, or could have had the effect of prejudicing any of the
applicant's rights, the scope for imposing an obligation on those authorities
that they should act with procedural fairness was limited, if it existed at
all. The public authority to private individual divide, which is readily
identifiable as the stage at which procedural fairness should be found to
operate is not present. It is for these reasons that I respectfully find that
I am unable to follow the dicta of Dyson J in ex parte LM in the
passages of his judgment which have already been cited. In fairness, it is not
apparent that, any more than in the present case, he was assisted by detailed
submission on the question whether or when a duty should be held to arise,
rather than the circumstances and manner in which it should be exercised. The
consequences of that judgment, if it were literally applied, seem to me
respectfully to fall foul of the caution against "over-judicialising" the
administrative process.
39. There is no doubt as to the existence of the power, indeed it may
more properly be described as a duty, as between one police force and another,
to disclose sensitive information as the result of a child access vetting
enquiry. The question at issue, then, is whether the judicial function has any
role to fulfill in evaluating the process. I abjure the word `decision', by
which one police force communicated the information to the other.
40. It is precisely because of the decision of the police to disclose
sensitive personal information to the public concerning the applicants' past in
ex parteThorpe that the duty, not to act in a way which was procedurally
unfair, was found to exist. In the present case, the transfer of information
by B and C to D had no immediate or even indirect consequence for the
applicant. It is well arguable, and I would be minded to hold, that the mere
transfer of information between police forces which did not, by itself, impinge
on the rights of the applicant, was not a situation in which the doctrine of
procedural fairness was engaged at all.
41. What then of the position of D when the information was passed by
them to the education authority? There cannot be the slightest doubt that the
education authority had a lawful interest and a "pressing" need to receive the
information which was in the possession of the County Police since it was or
could be important as affecting the decision which it was required to make. In
one sense, the education authority was the body best qualified to decide what,
if anything, it would make of the information with which it was being provided.
If it was uncertain about the strength of the complaints and needed to know
more in order that it could make an informed decision, it was always at liberty
to ask for assistance from the communicating police force for its opinion about
that matter. It would thereafter be for it to decide whether, or to what
extent, the non-conviction material should inform its decision. Before it did,
it would, of course, have to provide the applicant with at least the gist of
that information and offer him the opportunity to make representations about
it. But I am not concerned with the mechanics of a situation which is not
before me and which, on the evidence, never happened. There is evidence before
the court that the decision of the education authority was not related in any
way to the non-conviction material available to it.
42. There is, in my judgment, nothing in the point as to the
rationality of the decision, if such it was, for D to communicate
non-conviction material to the local education authority for the purpose for
which it had been sought. If the information was in the possession of D,
subject only to the question whose was the obligation to assess its worth,
there was clearly a most "pressing need" for it to be made available to the
education authority.
Conclusion
43. In summary, therefore, there was, in my judgment, no procedural
impropriety arising as the result of the separate `decisions' by C to
communicate with D and for the latter to communicate the results of its
enquiries to the education authority. Important as the Circular from the Home
Office, undoubtedly is, its legal significance is limited. I doubt not that it
sets out a code which amounts to administrative "best practice". It can no
more, dictate the circumstances in which the law will intrude on the
administrative process than the law says that it can. On a simple basis, there
is an obvious need to keep non-conviction material in the hands of as few
people as practicable in a well administered society. To the extent that the
Circular encourages confidentiality, in this narrow and non-technical sense, it
is, in my respectful opinion, a wholly meritorious document. But it cannot,
nor does it attempt to, impose fetters on the obligations of police authorities
to pass information between each other. What it does attempt is to prescribe a
means of limiting the opportunity for sensitive personal data to reach the
public domain. It is significant, in my view, that the Circular restricts the
number of people, as well as the positions which they hold, to those to whom
such sensitive information may be passed - see paragraph 19 of the Circular.
44. In the result and for the reasons which I have given, the
application fails and must be dismissed.
One last point is for consideration is that of delay. Given my decision on the
substantive issues in the case, delay as a factor in the exercise of discretion
to grant relief does not arise. Had the decision on the substantive aspects of
the case been otherwise, it would have been necessary to analyse the reasons
for the delay in bringing this case before the court and whether or not there
were good reasons for the delay.
*****************
MR JUSTICE TURNER: Mr Giffin, Mr Greatorex, Mr Clarke, I am grateful to
you all for the editorial corrections which you prepared. You may or may not
have noticed that there have been some textual alterations to the judgment
since the draft was prepared. I have discovered one or two typographical
errors that I had not spotted before and had managed to evade counsel also. I
propose to introduce those corrections as I hand the judgment down, thank
you.
As I have already indicated, the draft judgment was made available to the
parties. I have made various typographical corrections and one or two editorial
corrections. There still remain some corrections to be made.
Paragraph 11, line 6, between the words "caravan owners" the word "site" should
be inserted. Paragraph 14, for some reason the name of the case was not
underlined, that is Woolgar -v- Chief Constable of Sussex Police. In
the line after that case appears, the word "of" at the beginning of the next
line should be deleted. Paragraph 19, line 9, the word "is" should be "are".
Two lines up from the bottom of the page, the sentence which ends "under any
enactment" insert the words "is exempt".
Paragraph 22, the pre-penultimate line, "was wrong if it was intended" insert
"to apply to inter-police force transfers of information". Paragraph 32, line
1, in the middle of the line delete the word "took". Paragraph 36, line 4,
insert a comma after the parenthesis:
"...(Police and prohibition), which operated in the public sphere..."
Four lines lower down, the word "act" should be transposed to the end of the
line so that it reads:
"...when both were doing no more than act as a local division of an agency..."
That concludes the alterations and I now formally----
MR GIFFIN: My Lord, I noticed something further just at the last moment.
In paragraph 23 of the judgment. My Lord sets out lettered submissions, A to
D. A and B are introduced below, but I do not think one sees C and D as such,
I think we were probably content for them to come at the start of paragraphs 26
and 27 respectively.
MR JUSTICE TURNER: Yes, I am most grateful to you, C after 26 and D
after 27 thank you. One final matter before we leave this case is, I have
received a note from the Press Association and the Editor of the Strand News
which concerns publicity in this case. Inadvertently it is conceded that in
reporting the earlier hearing, the two police forces were identified. The note
then proceeds to say:
"Whilst we appreciate the concerns of the parties, we wonder if the court was
asked to consider the competing interests of the press in being able to carry
fully detailed reports of a case involving a matter of public interest. In the
past it has been most unusual to restrict the reporting of names except in
cases where the welfare of minors or vulnerable adults was involved. It has
been even more unusual to ban the naming of a police force given the importance
of their accountability to a public which should be fully informed of policing
activities, save in very exceptional circumstances."
It seems to me inevitable, given the content of the judgment, that if the names
of the police forces are given, it is a very short trail to discovering the
identity of the Applicant.
There are two questions: one, is it in the public interest that the
Applicant's name should not be divulged?
Two, if it is, is it sufficient if the police forces are simply identified by a
letter which does not correspond with the initial letter of the county of which
they are the respective police forces.
MR CLARKE: My Lord, I have discussed with my learned friends the
matters that we needed to canvass with my Lord before departing this was, being
one of I think an anonymity order. My Lord, the Applicant's position is, that
we would invite the Court to continue the order in the form as originally
granted by Newman J on the permission application. My Lord, can see it is set
out on page (i) of the bundle.
MR JUSTICE TURNER: I do not have the bundle with me.
MR CLARKE: My Lord, I can hand it up. Basically to summarise it:
"It is a publication of the applicant's name and address or any matter
calculated to identify him in any proceedings, including the names of the
respondents, the applicant's past and potential employers, the school where he
worked and the sort of work he was currently doing and the persons been
involved with the investigation against him."
MR JUSTICE TURNER: What is the basis for the Applicant's anonymity?
MR CLARKE: My Lord, the problem is we are dealing with allegations of a
highly charged nature, which allegations have not of course been the subject of
criminal proceedings and are in their nature unproven. The nature of the
allegations are such that they inevitably are very damaging to an individual if
they are disclosed beyond certain narrow confines. My Lord of course has
looked at this case in the context of disclosure within specific public
authorities for very specific purposes involving general disclosure to the
public at large.
My Lord, we are dealing here with small schools in small communities and the
protection that really matters is not only that the applicant himself would be
classed as a vulnerable adult but also for the minors involved, because we are
dealing with very small schools and very small communities where I would
respectfully agree with what my Lord has indicated that if one names the police
forces----
MR JUSTICE TURNER: I do not think you need worry about that so far as I
am concerned because it is a very short trail.
MR CLARKE: We expected on the part of the press that regrettably what
has happened in the publications after the last hearing, is that there was
sufficient indication for the applicant to be virtually identified, that is
unfortunate because the trail can be pursued if one names the respondents and
names the local education authorities and that kind of thing. That is why we
say that in this case, given the acutely sensitive nature of the unproven
allegations in question, given the background of protection not only of the
individual adult but of the children, we say it is appropriate for the Court to
make this order balancing the public interest in knowing about important public
issues against the rights of the individuals concerned.
My Lord the Applicant's position is we would invite the Court to continue the
order in its present form. It is made under section 11 of the Contempt
Order.
MR JUSTICE TURNER: This would involve substituting names in the text of
the judgment?
MR CLARKE: My Lord, is right. The judgment itself of course can
stand. It is really only reporting of the judgment, whether in the law reports
or in the press reports. That is commonplace in cases involving children and,
I think, one of the other cases that we looked at was ex parte A and a
police force in the Midlands or an education authority in the Midlands----
MR JUSTICE TURNER: That was ex parte LM.
MR CLARKE: One gets this sort of thing in educational law reports and
these law reports all the time, where initials and acronyms are used to prevent
identification of the relevant parties and that some times where there is an
appropriate need, as we say there is here, it goes beyond simply the Applicant
himself or herself. My Lord, that is the Applicant's position on the reporting
order.
MR JUSTICE TURNER: Yes, Mr Greatorex.
MR GREATOREX: My Lord, the First Respondent has no submission on that.
We are happy with what the court decides.
MR GIFFIN: My Lord, there is nothing I wish to say on that unless there
is anything your Lordship wishes us to say?
MR JUSTICE TURNER: If the order of anonymity is to be preserved, it
seems to me appropriate that they should be identified with the letter B, C and
D. In that way the counties will not as readily be identified as if K, G and W
were used. There are, as I think at the moment, powerful reasons why anonymity
should be preserved, but before I finally confirm the order, is there anything
the press would like to say further?
MEMBER OF THE PRESS: I do not think so my Lord. You have our written
application.
MR JUSTICE TURNER: I do indeed, and I am most grateful to you for it.
I accept the apology that the reporting was inadvertent in the first place, but
there are, especially in the light of the unproved allegations, powerful
reasons of fairness why nothing should be published which will lead to the
identity of this particular applicant.
MEMBER OF THE PRESS: My Lord, just a point of further clarification.
Bearing in mind the earlier inadvertent publication, we are probably now in a
situation where we are not going to be able to report the case at all.
MR JUSTICE TURNER: That would be unfortunate.
MEMBER OF THE PRESS: That is the situation. There is a
cross-identification because of the earlier publication.
MR JUSTICE TURNER: It could be. I will hear from counsel further about
that, but it does not seem to me necessarily that even the most zealous
individual will pick up from the report of today's judgment and go back to
three weeks ago and identify the police forces concerned and probably the least
said about that the better. I would not anticipate that publication of the
case in terms of anonymity that we have discussed will breach that order.
MR CLARKE: My Lord, I respectfully agree and certainly it is no part of
the applicant's position to try and prevent reporting on his public interest.
I should also say that we are not here -- we recognise that it was inadvertent
and that is the end of it.
My Lord, other matters----
MR JUSTICE TURNER: Can we just deal with that. Are you satisfied with
that?
MEMBER OF THE PRESS: Just one thing, my Lord. From our point of view
if these matters be drawn to public attention at each hearing so that it is on
the record and people in court understand the position straightaway because, I
think it is right to say that at the previous hearing, there was no mention at
all of the extent of the order in force.
MR JUSTICE TURNER: In the ordinary way the order is published, is it
not, in the press room?
MEMBER OF THE PRESS: We pick up our cue from what appears in the cause
list. If something appears by initial, then we know we cannot identify the
individual, that is what we go for.
MR JUSTICE TURNER: I am grateful to you for that. It indicates that the
listing authorities in this building should be alerted to any order of
confidentiality that is made.
MEMBER OF THE PRESS: My Lord, the position in this case was that, in
fact, the listing authorities were alerted, I believe it did appear under the
initial S, but the parties were named, the police authorities were named.
MR JUSTICE TURNER: I have the listing here. It says the Queen on the
application of A again C. It plainly would be a matter of necessity that the
listing authorities in this building, when an order of anonymity has been made,
should themselves respect that order. I think that is the short point and I
will draw that to the attention of the listing authorities. I am most grateful
to you.
MR CLARKE: My Lord, there are other matters.
MR JUSTICE TURNER: I expect there is going to be an application for
costs before we get to other matters.
MR CLARKE: That is right. I will leave that to my learned friend to
make.
MR AUDEN: My Lord, first of all, I would like to make an application
for our costs in this matter. I believe that there may be an argument from my
learned friend on that and it might be best to hear argument and I will then
deal with that. I do have a summary assessment of costs, I can hand that up
(same handed).
MR JUSTICE TURNER: Is there a dispute?
MR CLARKE: My Lord, there are two points. One is a matter of
principle----
MR JUSTICE TURNER: That is another matter. As a matter of detailed
assessment.
MR CLARKE: My learned friend Mr Giffin's clients put in a costs
estimate in due time and we agree that. The First Respondent's assessment only
reached us just before the court hearing this morning my Lord, so there appears
to be noncompliance with the practice direction on this. That is a matter
which the court can take into account. My only observations on quantum is that
the First Respondent is -- we say, and it does seem to come out at the top end
for a one day judicial review which normally comes out at about £10,000,
this one is something like £13,000. My Lord, we do know that it is always
invidious making these observations, but I have to do it.
MR JUSTICE TURNER: You think counsel's fee was excessive.
MR CLARKE: My Lord, I note the presence of junior counsel at the
hearing, but it only charged for presence at the hearing.
My Lord, the skeleton argument was drafted by my learned friend, Mr Straker QC,
himself. The junior was not involved in that preparation and was not involved
at any stage, other than attendance at the hearing. As I say, I dislike
quibbling with these points.
MR JUSTICE TURNER: I think we all have to be adult about it, because
you are about to ask for leave to appeal. I have to be adult in the same way
you do.
MR CLARKE: I have to say my Lord is entirely wrong.
MR JUSTICE TURNER: Yes, you do.
MR CLARKE: My Lord, we would quibble with the costs and say that an
appropriate figure would be one that I say would -- certainly the junior at the
hearing should not be allowed.
MR JUSTICE TURNER: You should take the junior out.
MR CLARKE: My Lord, I have no observations on the amounts. My learned
friend Mr Giffin's comes in about £9,500 and we have no quibble with
that.
MR JUSTICE TURNER: Do you want to argue junior counsel? It was a bit of
a luxury. You were, in a sense, least in the line of fire.
MR AUDEN: My Lord, yes. This was a complex case. There were a number
of issues that had to be dealt with shortly.
MR JUSTICE TURNER: It seemed to me that Mr Giffin was able to deal with
them more than adequately.
MR AUDEN: Yes, my Lord, I do appreciate that the fees involved at the
beginning -- it was a case in which quite a lot of research had to be done in
preparation for it and that this case necessitated junior counsel for the final
preparation and to attend. Again I say this was a complex case and there were
issues to be dealt with shortly before the hearing after the drafting of the
skeleton.
MR JUSTICE TURNER: It is not a proper case for junior counsel,
otherwise the costs will be in the sum adjusted to take account of that ruling.
Mr Clarke, you want leave to appeal?
MR CLARKE: My Lord, I do ask for permission to appeal and I do it for
these reasons: the case raises issues of public importance and I would suggest
that the argument that my Lord canvassed have indicated an emerging tension in
the authorities between, on the one hand, the line of authority that my learned
friend Mr Giffin placed reliance on, when we talk about the free exchange of
information in the public interest and, on the other hand, the line of
authorities which are illuminated by cases such as ex parte Thorpe and
ex parte LM, where we see perhaps a slightly more restrictive
approach.
MR JUSTICE TURNER: I found no tension between Thorpe and my
decision, the only tension I found was between ex parte LM.
MR CLARKE: That was a further point. My Lord, that one has to
(inaudible due to coughing) certain observations made by Dyson J. My Lord is
entitled to do that. It is not a decision that binds, my Lord but----
MR JUSTICE TURNER: Comity requires that I should only disagree if I am
convinced that I am right, that may be your difficulty.
MR CLARKE: Indeed, but what we say is that when one looks at -- I would
say that there is some divergence of approach in, for example, the cases about
consultancy index and cases involving police disclosures were all broadly
within the same umbrella of the area of public law in dealing with disclosure
in respect of noncontradiction information but in different contexts and there
are some divergence of approach indicated by the various judicial opinions on
the subject.
My Lord, in this particular case my Lord has decided not to agree with certain
observations of Dyson J in another case which, on our submission, is a similar
case and, for all these reasons----
MR JUSTICE TURNER: Of course, Dyson J's case was going to fail on the
facts any way and on one approach what he said was, in old fashioned terms,
obiter, not necessary to his decision.
MR CLARKE: Indeed. Of course, even if that had to be so, one heard
different expressions of principle one from my Lord and one from Dyson J in
respect of the same subject matter. Albeit that is----
MR JUSTICE TURNER: You say the Court of Appeal should be allowed to
sort out the spat between judge's at first instance? You do not put it quite
like that, but that is what you are saying.
MR CLARKE: There are, I would say, some identifiable differences of
approach between different division of the Court of Appeal in respect of the
different context of disclosure----
MR JUSTICE TURNER: What I have endeavoured to do in this judgment is to
try to identify the circumstances in which the court can find a decision where
procedural impropriety can be a factor or is a fact. In that narrow sense, I
have decided this case on its own special facts.
MR CLARKE: What my Lord has done, if I read the judgment correctly, is
it comes close to saying that the decision of the sort which is susceptible to
judicial review and----
MR JUSTICE TURNER: It does say precisely that, but that is based on a
factual analysis.
MR CLARKE: My Lord, if we are being adult about this, my Lord has
diverged from the pressing need test established by Thorpe.
MR JUSTICE TURNER: No, we do not get that far on my analysis.
MR CLARKE: My Lord, on that analysis my Lord reads it as -- the matter
was argued on behalf of the constabulary on the basis that they did make a
decision, particularly D, a decision to disclose and my learned friend Mr
Giffin, in particular, has accepted the Thorpe test and indeed
LM. My learned friend would have accepted the relevant test as he said
it passed the test.
If I read the judgment correctly, my Lord has adopted a slightly different
angle on it than that put forward by my learned friend, Mr Giffin.
MR JUSTICE TURNER: I have and the judgment expressly recognises that
with due diffidence, I may say.
MR CLARKE: My Lord, yes. With due diffidence I am satisfied----
MR JUSTICE TURNER: Diffidence ill becomes you, Mr Clarke.
MR CLARKE: My Lord, I will try. With respect, we say this is a matter,
given the overall context of the public issues that are at stake, it should be
looked at by the Court of Appeal and I would invite my Lord to take the
step----
MR JUSTICE TURNER: If you are to persuade me you will have to
encapsulate the point or points you wish to argue.
MR CLARKE: We wish to argue that what my Lord has done has failed to
recognise that there was here a decision to disclose, in particular by D which
should have been subject to the Thorpe and LM tests. My Lord
decided there was really no decision here, which is a pressing need decision of
the kind characterised in Thorpe and the LM case that my Lord has
heard. We also say that my Lord, in so far as one looks at the exchange of
information the authorities have erred by disagreeing with Dyson J's
observation on that point in the LM case. We also say that when my Lord
expressed a doubt as to whether procedural impropriety alone would justify a
freestanding judicial review challenge here. My Lord has gone someway adrift,
we would say, from Lord Diplock classic formulation in the GTUK (?)
case. We put it that way----
MR JUSTICE TURNER: Despite the fact that I referred to it.
MR CLARKE: Yes, my Lord. We say this all in the context of issues
undoubtedly of considerable public importance so that applying the modern
approach to permission to appeal, we say there are good arguable points with
prospects of success and some other compelling reason for the grant of
permission, namely significant public importance of the issues in this case
and the need to go to the Court of Appeal. We would say to tidy up the law as
it developed on this subject in a number of different and particular statutory
and regulatory contexts, not only the police but also medical services,
consultative (inaudible) and all those sorts of things. There are an array of
authorities now, and it is about time, we say, particularly in the light of the
recent coming into force of the Human Rights Act to revisit this area and
perhaps give some general guidance and value to all those public authorities
operating in this difficult field. My Lord, that is my submission.
MR AUDEN: My Lord, as leave to appeal is concerned, we take the view
that your Lordship gave a clear judgment in this case on which we need not
trouble the Court of Appeal. There is no conflict with Thorpe and, as
far as we are concerned, there is no conflict with the GCUK (?) case.
This was an
error (?) case on the particular facts. Based on particular facts, this would
be an inappropriate case to proceed to the Court of Appeal.
MR GIFFIN: I respectfully echo the point that although potentially
there are some interesting theoretical questions this case is not a good
vehicle. So far as the substance of my Lord's decision is concerned, my Lord
has found in very robust terms that there was ample material justifying
disclosure, not the slightest doubt of pressing need and clearly a most
pressing need. The applicant's best point was the question of what procedure
was followed, but the fact is that the information is now with Warwickshire and
my clients have said that in relation to any future disclosure they would be
minded to seek representations. So factually it is most unlikely that this
Applicant is going to achieve anything.
MR JUSTICE TURNER: Even if he wins on the law, he looses on the
facts.
MR GIFFIN: My Lord, quite so. If one is looking for a vehicle for
clarification of the law, it may be, I respectfully submit, that a case where
the disclosure occurred at a time when neither the current Data Protection Act
nor the Human Rights Act was actually in force, it is unlikely to be the best
vehicle for giving future guidance. My Lord, subject to those submissions, we
leave the matter in your Lordship's hands.
MR JUSTICE TURNER: I refuse permission to appeal. The underlying facts
in the case, even had I been in favour of the applicant on the point of law,
would have meant that the case failed any way.
MR CLARKE: There is one other matter. When permission was granted
both the respondents gave an undertaking to the court not to disclose any
information about the Applicant until the determination of the substantive
application for judicial review or further orders, unless they first give ten
days notice to the applicant of any proposed disclosure, including the content
thereof. An undertaking by both forces before Newman J when permission to move
was granted.
My learned friend Mr Giffin has indicated, on behalf of the Second Respondent,
that undertaking is continued pending application by my clients to the Court of
Appeal for permission to appeal on the assumption, on our side's undertaking
that we would submit that application and pursue it expeditiously, which we
will do.
I would invite my learned friend Mr Auden for the First Respondent to indicate
that that undertaking is forthcoming from the First Respondent. I believe he
has taken instructions on that, but I do not know if he is able to indicate his
position.
MR AUDEN: My Lord, I have contacted my instructed solicitor, who is not
here this morning. I have not heard back from them. I do not anticipate any
problem, but if it was possible to have a five minute adjournment so I can call
them back to see if particular----
MR JUSTICE TURNER: No, because I am a member of another constituted
court and I suspect this court is required by another constitution. The
appropriate thing would be to grant you liberty to mention this matter to me at
some point today when I become available.
MR CLARKE: I am content with that.
MR JUSTICE TURNER: At the present time, the undertaking on behalf of
the Second Respondent which continue until leave is granted by the Court of
Appeal, and if granted continued until determination of the appeal.
MR CLARKE: That was my friends understanding.
MR GIFFIN: My Lord, yes.
MR JUSTICE TURNER: It is an undertaking in those terms, Mr Auden which
is sought from your clients.
MR AUDEN: Yes.
MR JUSTICE TURNER: It may be significant if you obtain their
instructions and communicate that by document to me rather than we continue in
open court.
MR AUDEN: I think that would be sensible. I will send a message to
your clerk.
MR GIFFIN: I would formally ask your Lordship to make an order for
costs in the agreed sum in my favour and I ask your Lordship to do that. It is
£9,471.03 including VAT.
MR JUSTICE TURNER: What is the adjusted sum for the First Respondent? It
is £1,250 plus VAT at 17.5% to be taken away from the figure of
£13,111.23. That is the sum, whatever it is, in which I assess your
costs.
.
© 2000 Crown Copyright
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