Case No: 2006 0846 & 0846(Z) C1
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (ADMINISTRATIVE COURT)
Hon Mr Justice Munby
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LORD JUSTICE LONGMORE
LADY JUSTICE SMITH
and
LORD JUSTICE MOORE-BICK
Between :
R (ON THE APPLICATION OF L) | Appellant |
- and - | |
COMMISSIONER OF POLICE FOR THE METROPOLIS THE SECRETARY OF STATE FOR THE HOME DEPARTMENT | Respondent Intervenor |
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Miss BEVERLEY LANG QC and Ms CHARLOTTE KILROY
(instructed by John Ford Solicitors) for the Appellant
Miss FIONA BARTON
(instructed by The Directorate of Legal Services, Metropolitan Police) for the Respondent
RABINDER SINGH Esq QC
(instructed by The Treasury Solicitor) for the Intervenor
Hearing date : 13th February 2007
Judgment
Lord Justice Longmore:
This appeal raises a question as to the permissible content of an enhanced criminal record certificate issued pursuant to section 115 of the Police Act 1997 in relation to someone who wishes to work with children under 18. Part V of the Police Act 1997 (“the 1997 Act”) is headed “Certificates of Criminal Records &c”. Section 112 relates to criminal conviction certificates, section 113 relates to criminal record certificates (thus including records of eg cautions) and section 115 then deals with enhanced criminal record certificates (“ECRCs”).
The legal framework
Section 115 of the 1997 Act provides, so far as material for present purposes, as follows:-
“(1) The Secretary of State shall issue an enhanced criminal record certificate to any individual who – (a) makes an application under this section in the prescribed manner and form countersigned by a registered person, . . . .
(2) An application under this section must be accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question asked – (a) in the course of considering the applicant’s suitability for a position (whether paid or unpaid) within subsection (3) . . . .
(3) A position is within this subsection if it involves regularly caring for, training, supervising or being in sole charge of persons aged under 18 . . . .”
Section 113(5) has already defined an “exempted question” as follows:-
““exempted question” means a question in relation to which section 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) has been excluded by an order of the Secretary of State under section 4(4).”
Section 4(2) of the Rehabilitation of Offenders Act 1974 provides that:
“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.”
It is common ground that the relevant order has been made by the Secretary of State under section 4(4) of the 1974 Act.
Section 115(6) of the 1997 Act provides:-
“An enhanced criminal record certificate is a certificate which –
(a) gives –
(i) the prescribed details of every relevant matter relating to the applicant which is recorded in central records, and
(ii) any information provided in accordance with subsection (7), or
(b) states that there is no such matter or information.”
Section 115(7) then provides that:
“Before issuing an enhanced criminal record certificate the Secretary of State shall request the chief officer of every relevant police force to provide any information which, in the chief officer’s opinion –
(a) might be relevant for the purpose described in the statement under subsection (2), and
(b) ought to be included in the certificate . . . .”
It is this provision that is central to this appeal.
The authoritative decision on the meaning and effect of section 115(7) is that of the Court of Appeal in R (X) v Chief Constable of the West Midlands Police [2004] EWCA Civ 1968, [2005] 1 WLR 65 in which Lord Woolf CJ described the general scheme of the legislation at para 18 as follows:-
“. . . . it is useful to note the following significant aspects of the statutory scheme involving ECRCs.
(i) The whole process of obtaining an ECRC is initiated by the person to whom the certificate will relate. The certificate is for his purposes to enable him to obtain employment which, at least in practical terms, will not be available to him unless he obtains a certificate.
(ii) The certificate will only be seen by the applicant and his prospective employer.
(iii) The applicant has the opportunity to persuade the Secretary of State to correct the certificate.
(iv) The Chief Constable is under a duty to provide the information referred to in section 115(7). This is subject to the requirement that the information might be relevant and ought to be included in the certificate. What might be relevant and what ought to be included is a matter for the opinion of the Chief Constable.
(v) The applicant is in a position to provide additional information if he wishes, whether in conflict with the certificate or not, to the prospective employer and it is the prospective employer who will make the decision as to whether he should or should not be employed.”
The heart of the decision in R (X) is to be found in Lord Woolf CJ’s judgment at paras 36 - 37:-
“36 . . . . Having regard to the language of section 115, the Chief Constable was under a duty to disclose if the information might be relevant, unless there was some good reason for not making such a disclosure.
37 This was obviously required by Parliament because it was important (for the protection of children and vulnerable adults) that the information should be disclosed even if it only might be true. If it might be true, the person who was proposing to employ the claimant should be entitled to take it into account before the decision was made as to whether or not to employ the claimant. This was the policy of the legislation in order to serve a pressing social need.”
The facts
The claimant, L, is the mother of a boy, X, who was born on 21st April 1989. He has a much older sister, Y. The family has come to the attention of both the police and social services. Because of concerns about X, the local authority arranged an initial Child Protection Conference which took place on 29th January 2002. The social worker reported concerns that X “may be exposed to drugs” and that L was not prepared to work with social services. She expressed the view that X “has no clear boundaries at home or at school” and reported that:-
“The general view of all the professionals is that [X] is at risk within his family because [L] has very little control of his behaviour and knowledge of his whereabouts for the large part of the day.”
The Conference received detailed reports of the numerous occasions between August 1999 and December 2001 when X had been reported missing. It also received a detailed report from his school of his poor attendance and poor behaviour at school. The Conference was told that X was currently excluded from school for having assaulted his teacher. The teacher is quoted in the minutes of the Conference as reporting X to be out of control. A police officer from the local Child Protection Team is recorded in the minutes as saying:-
“there has been a lot of involvement with [X] and his offending and being reported missing by [L]. It is felt that a lot of the issues stem from his sister [Y], around drugs and prostitution. [X] is a frequent visitor to his sister’s home.”
Recording L’s contribution to the discussion the minutes include this:-
“[L] refuses to accept that [X’s] behaviour is a concern. [L] targeted [the social worker] as the cause of all her problems . . . . [L] said the root of the problem is the family being harassed by neighbours . . . . [L] feels that she is not being listened to and everyone else is the cause of the problems and she is not to blame.”
The decision of the Conference was that X’s name should be placed on the Child Protection Register under the category of neglect. The minutes record fourteen specific recommendations, ten of them requiring action to be taken by the local authority. It is apparent that many of these were not implemented. There followed a first review Conference on 26th April 2002 and a second review Conference on 22nd November 2002 confirming that X should remain on the Child Protection Register.
By then X had been arrested, on 27th September 2002, for a robbery committed by him on 12th September 2002. Two days earlier, on 25th September 2002, he had been assaulted by his father, apparently provoked by X’s behaviour in allowing unknown adults into their flat and running up a telephone bill of £490. X was charged on 2nd October 2002. He was convicted and sentenced on 31st March 2003 to three years’ detention in a Young Offender Institution. He was released on 28th February 2004. In June 2003 his name was removed from the Child Protection Register.
From February to December 2004 L was employed by an employment agency which provides staff to schools. From March to July 2004 she worked as a midday assistant at a secondary school; her job required the supervision of children in the lunchtime break both in the canteen and in the playground. Whilst on duty in the playground her responsibility was to ensure that the children did not go out of the school gate and that they behaved themselves properly. There were four other assistants in what was described as a big play area.
Because of the nature of L’s job, the agency applied for an enhanced criminal record certificate in accordance with section 115 of the Police Act 1997. The position applied for by L was described as a “casual midday assistant.” The certificate was issued on 16th December 2004. It recorded that L had no criminal convictions and that no information on her was recorded either on the list held under section 142 of the Education Act 2002 or on the Protection of Children Act list. But under the heading “Other relevant information disclosed at the Chief Police Officer(s) discretion” it set out the following as having been supplied by the Metropolitan Police Service:-
“[L], born [date], came to police notice in January 2002 when her son, age 13, was put on the Child Protection Register under the category of neglect. It was alleged that the applicant had failed to exercise the required degree of care and supervision in that her son was constantly engaged in activities including shoplifting, failing to attend school, going missing from home, assaulting a teacher at school and was excluded from school. Additionally, it was alleged that during this period the applicant had refused to co-operate with the social services. Her son was removed from the Child Protection Register in June 2003 – after he had been found guilty of robbery and receiving a custodial sentence.”
Shortly afterwards, on 21st December 2004, L was informed by the agency that her services were no longer required.
L issued an application for judicial review on 21st March 2005, seeking to challenge what was described as the decision of the defendant, the Commissioner of the Metropolitan Police, to disclose information relating to her on the enhanced criminal record certificate. On 29th April 2005 Munby J granted permission on the papers, observing that “the application raises an important point of potentially wide concern.” The matter came on for hearing before him on 13th February 2006. The evidence before the judge consisted of two short statements by L and two more substantial statements filed on behalf of the Commissioner: one by Detective Chief Inspector Stuart Gibson, the other by Chief Superintendent (previously Detective Superintendent) Graham Morris. The exhibits to DCI Gibson’s statement included a print-out of the electronic record of the decision-making process taken from the Character Enquiry Centre Case Management System (CEC-CMS) and copies of the relevant data on the Crime Reporting System (CRIS), running to 168 pages, and the relevant police child protection records running to no fewer than 489 pages.
CS Morris supervises the Metropolitan Police Disclosure Service, which is part of the CO4 department at New Scotland Yard (“CO4”). His statement described how CO4 receives approximately 11,000 requests from the Criminal Records Bureau each week, of which approximately 50% result in a ‘hit’ producing some form of information. This information is then considered for disclosure. On average information is disclosed in only 20 to 25 cases each week. The disclosure unit consists of approximately 80 civilian case workers supervised by 10 civilian team leaders, each of whom has approximately 8 case workers in their team. In addition there are three Detective Sergeants, a Detective Inspector, a Detective Chief Inspector and, at the top, Detective Superintendent or, as he now is, Chief Superintendent Morris. An application is considered in turn by a case worker, by a team leader and then, if there is thought to be potentially disclosable material, by either a DS or a DI. If at that stage the recommendation is for disclosure the matter is next considered by the DCI and then by the CS.
The two crucial stages in the decision-making process in this case were undertaken by DCI Gibson and CS (at that time DSupt) Morris. It is convenient to set out the CEC-CMS record in full, adopting the paragraph numbers used by the judge.
On 30 November 2004 DCI Gibson wrote as follows to DSupt Morris:-
“[1] There is a mountain of information contained within the docket, a large proportion of which is rumour, conjecture, and uncorroborated allegations. The only information that I consider to be safe to disclose is that which surrounds the applicant’s son being subject of inclusion on the Child Protection Register under the category of neglect. Given that she has applied for a position involving regular contact with children, I consider this to be highly relevant; the applicant has consistently displayed a lack of ability to adequately care for and supervise her own child and the registered body should be made aware of her history when considering her employment application.
[2] [L] born [date] came to Police notice on 29.1.02 when her son, then aged 13 years, was put on the Child Protection Register under the category of neglect. It was alleged that the applicant failed to exercise the required degree of care and supervision in that her son was constantly engaged in activities including shoplifting, failing to attend school, going missing from home, assaulting a teacher at school and was excluded from school. Additionally, during this period, it was alleged that the applicant refused to work or co-operate with the Social Services. Her son was removed from the Child Protection Register in June 2003 having been sentenced at Court to a custodial period for an offence of robbery.”
On 2 December 2004 DSupt Morris wrote the following minute:-
“[3] I agree with DCI Gibson – the evidence is factual and relevant. In considering the disclosure we do identify her son by default and that does affect his rights. In this case the fact that the information is in the public domain and that the applicant seeks a post with children, and their rights need to be considered does on balance justify disclosure.
[4] Information should be more than speculation, it should have some basis in fact. It should be more likely to be true than not and one would need to consider whether on the balance of probabilities test it was true. Age: HO Circular Para 28 “The older the information the less likely it is to be relevant” (2003).
[5] The incident has been admitted or is otherwise considered to be accurate and verifiable.
[6] The source can be relied upon.
[7] The investigation has concluded and there is evidence to support the allegation.
[8] 115(7) of the Police Act 1997 allows a Chief Officer of Police to disclose information that, in his opinion, might be relevant and ought to be brought to the attention of a registered body. Information might be relevant if a reasonable employer would find it material to a decision regarding employment, where the question of whether the applicant would pose a risk to the vulnerable was appropriate.
[9] The information relates to information that shows the applicant may be a risk to the physical, mental or moral welfare of the vulnerable.
[10] The incident was not connected with sex, drugs or violence but a lack of care.
[11] The incident is of concern and there is a specific reason to believe there is a risk to the vulnerable – lack of care.
[12] The HRA requires a balance to be struck between the right to private life and protecting the vulnerable from moral harm, mental or physical abuse. While individuals should not be at risk of being forever hounded, if a person chooses to seek this type of employment then they put themselves forward into public life and by that choice accept that information may be released. The impact of disclosure may result in his not being employed. While it would not be in society’s interest to exclude an applicant from employment, social outlets, etc. as this may be a moderating factor on behaviour, the welfare of the vulnerable in respect of whom the risk may exist is of paramount importance, as it is their rights that legislation seeks to protect. The decision is one for police and there is no presumption against disclosure, the position is more in favour of disclosure unless there is a good reason for not doing so. (X v WM)
[13] Disclosure would cause little disruption to the applicants private life as the information will be known to most people to whom disclosure is made.
[14] A failure to disclose would result in the vulnerable being placed in some risk of harm through neglect.
[15] If information is such that it passes all other tests then it should be disclosed irrespective of DPA implications.
[16] Having considered these points and the information held I consider that disclosure is proportionate, in view of the nature of the information and the applicant’s proposed role and necessary to protect vulnerable members of society.”
The result of this was that the disclosure on the enhanced criminal record certificate (“the ECRC”) was made when it was issued on 16th December 2004.
The Proceedings
On 19th March 2006 the judge dismissed L’s claim for judicial review on the basis that the legislation permitted the police to make the disclosure, that there was no error or flaw in either the approach or the decision of DCI Gibson or CS Morris and that the decision was compliant with the statutory regime and the European Convention on Human Rights (“the ECHR”).
The skeleton argument in support of L’s application for permission to appeal raised two issues viz (1) whether, on the true construction of section 115(7) of the 1997 Act, “relevant” information included information about past conduct which, even if proved, would not constitute a criminal offence or reveal a risk that a criminal offence would be committed in the future and (2) the impact of the police duty to comply with Article 8 of the ECHR in deciding what information was relevant and ought to be disclosed.
On 14th July 2006 Buxton LJ granted permission to appeal on the basis that it was arguable that the long title to the 1997 Act contemplated that the information provided would be confined to information contained in or relating to a person’s criminal records and would, therefore, not extend to other information particularly information “adventitiously found in someone else’s criminal records”. He refused permission to appeal on other grounds.
To the extent that Buxton LJ thought that the disclosed information came from another person’s criminal records, he may have been under a misapprehension since the information was disclosed by reason of police involvement in the arrangements for the Child Protection Conference already mentioned. It is true that the conference was called by reason of concerns about L’s son X. At that stage the concern did not arise from the fact that X had acquired any criminal record as such but the concerns were, of course, about X rather than L and it might be a question whether the Act contemplates the transmission of information acquired as a result of police involvement with a person other than the applicant. The true question, however, is whether, on the construction of the statute, non-criminal matters may be disclosed and we have interpreted the permission to appeal as allowing the applicant to argue that question of construction. The applicant also renewed her application to appeal on the Article 8 aspect. By the time the question of construction had been argued, there was no time for oral argument on the Article 8 question. But Ms Beverley Lang QC for the applicant said that she was content for the court to decide that matter by reference to her written submissions.
Construction of the sub-section itself
Ms Lang’s first argument on the appellant’s behalf was that section 115(7) could only refer to information about possible criminal activity or propensity to commit criminal acts because the police were only required (and entitled) to provide information which might be relevant for the purpose “described in the statement under subsection (2)”. That statement is a statement that the ECRC “is required for the purposes of an exempted question” viz a question which is to be answered without regard to any restriction “relating to spent convictions or to any circumstances ancillary to spent convictions” (section 4(2) of the 1974 Act). So it was said that the information could only relate to criminal matters albeit that it could include information relating to possible criminal activity or criminal propensity.
The fact, however, that an application for an ECRC has to be accompanied by a statement that the certificate is required for the purpose of an exempted question asked in the course of considering an applicant’s suitability for a position caring or supervising children does not mean that the information can only relate to matters which only an exempted question can be expected to answer. That would be an unduly restrictive interpretation of the words
“any information which . . . . might be relevant for the purpose described in the statement under subsection 2.”
In my judgment the statement is the trigger for the provision of the information in that the information can only be provided in circumstances where the application is accompanied by a statement that the certificate is required for the purpose of an exempted question. Once that trigger exists, the only restriction is that the Chief Officer of Police must think (1) that the information might be relevant for the purpose for which the statement was made and (2) that the information ought to be included in the certificate.
As Mr Rabinder Singh QC for the intervener pointed out, the statement which a registered person has to make has to state that the statement is required for the purpose of an exempted question asked “in the course of considering a person’s suitability” for a particular kind of (sensitive) post. Any information which might be relevant to that question of suitability is, therefore, within the scope of sub-section 115(7).
In any event, Ms Lang’s argument fails to meet her own central contention. If information can only be provided for the purpose of answering a question about spent convictions, there would be no ability to provide information about possible criminal activity or propensity to commit crimes in the future, which Ms Lang says is the true intent of the sub-section.
In the light of this conclusion in relation to the sub-section, and looking solely at the wording of Part V of the statute in general and section 115(7) in particular, I find myself, at this stage of the argument, in agreement with the judge who observed (para. 80) that if Parliament had intended to limit relevant information to information of criminal or potentially criminal activity, it would be likely to have said so. In other words “any” means any. Ms Lang sought, however, to rely on matters outside the enactment itself.
Considerations ancillary to the construction of the sub-section
Ms Lang listed a number of aids to construction which, she submitted, supported her argument. In chronological order these were:-
(1) the September 1993 Green Paper, preceding the 1997 legislation;
(2) the June 1996 White Paper, also preceding the 1997 legislation;
(3) the ministerial statement introducing the second reading in the House of Lords of the Bill which subsequently became the 1997 Act;
(4) the long title to the 1997 Act;
(5) subsequent official guidance in the form of DfES guidelines, ACPO guidance and Home Office guidance as contained in Home Office Circular 5 of 2005.
The arguments under this head began with the proposition that any alteration by Parliament to the common law should be strictly construed, that before the 1997 Act the burden was on the police to justify any disclosure beyond the formal criminal record and that such disclosure was only justified if necessary for the protection of a member of the public who might otherwise become the victim of crime and who might be in need of protection. These propositions were said to derive from R v Chief Constable of North Wales Police ex parte Thorpe [1999] QB 396 and R v Local Authority in the Midlands ex parte LM [2000] 1 FLR 612.
It cannot be emphasised too strongly that this approach is entirely wrong. In the first place it is self-evident that Parliament intended to alter the common law position (whether consciously or otherwise is irrelevant) because the common law presumption against disclosure of relevant information has been turned on its head. If the information is, in the opinion of the relevant Chief Officer of Police, relevant and ought to be disclosed, then the police are bound to disclose it. One cannot, in these circumstances, assume that other aspects of the common law were necessarily intended to be preserved; one must just construe the statute with the assistance of any permissible aid to construction. In the second place Lord Woolf CJ said in terms in X [2004] EWCA Civ 1068, [2005] 1 WLR 65 at para. 36 that to apply the previous authorities except with the utmost of caution could be misleading. With that preamble, I take the suggested aids to construction in turn.
It was said that the 1993 Green Paper stated its purpose as being to suggest reformed arrangements for vetting for employment to include “more stringent conditions for the disclosure of non-conviction information”. That of itself takes one nowhere.
The same phrase (non-conviction information) was used in the Executive Summary contained in section I of the 1996 White Paper. In the context of a description of the existing arrangements in Section II entitled Introduction, the Paper referred to records of convictions for reportable offences (for which the offender could be imprisoned) being held at the National Identification Service while details of “non-reportable convictions and cautions, together with some information relating to suspected offences for which there has been no conviction” (“non-conviction information”) were held by the police force which had dealt with the matter. Section VI of the Paper then contained the proposals for “enhanced criminal record checks” and included the following paragraphs under the head “Access to non-conviction information held on police records”:-
“29. The local records held by most police forces contain a range of information about individuals. This will include convictions and cautions for minor offences not recorded on Phoenix. Local records also include information which goes beyond the formal particulars of convictions but which may nonetheless be of legitimate interest to those considering employing individuals in particularly sensitive posts. Replies to the Green Paper suggested that the need to refer to such information in the interests of child protection was widely accepted as necessary by most, but not all, respondents.
30. After very careful consideration the Government has concluded that it is right for such information to continue to be disclosed where there are particularly strong grounds for it, such as to combat the risk of paedophile infiltration of child care organisations. It accepts that stricter guidelines on what may be disclosed would provide reassurance to those subject to checking in this way and that they should normally be able to see any information of this kind which may be made available on them.”
The White Paper proposed clearer guidelines to govern the disclosure of non-conviction information as set out in Annex B. That Annex provided:-
“Proposed Guidelines on the disclosure of non-conviction information in England and Wales in the context of pre-employment checks on those seeking employment involving regular unsupervised contact with children
1. When responding to enquiries for information from local force records, the police will routinely disclose convictions, cautions and bindovers. They may also disclose other factual information about individuals where that information is deemed to be reliable and could indicate that an individual is unsuitable for the post in question.
2. The information may include details about known associates where the association gives rise to concern. It may also include details relating to decisions not to prosecute an individual or acquittals where the circumstances of individual cases give cause for concern, and where the information has not been discredited. It should not, however, include details of allegations which cannot be substantiated . . . .”
Ms Lang relied on the phrase “non-conviction information”, as used in the title to paragraphs 29 and 30 of the White Paper and as defined in the description of the existing arrangements, and on the examples of information contained in the second paragraph of Annex B in support of her contention that the 1997 Act only permitted disclosure of information relating to possible criminal activity or criminal propensity of an applicant. It is, however, noteworthy that the first paragraph of Annex B is in very wide terms, that there is no restriction in the wording of the actual proposals (apart from the title) and, more importantly, that the phrase is not used in the 1997 Act itself at all. Indeed the phrase itself is very general in its scope; it is only because it is closely defined in the introduction of the White Paper that the argument gets off the ground at all. Yet it can hardly be the case that an Act of Parliament can be construed by reference to a phrase not used in the Act but only in an antecedent White Paper and then given a special meaning.
The ministerial statement in the House of Lords (contained as it is in Hansard) can only be referred to if it meets the conditions set out in Pepper v Hart [1993] AC 593, 617A per Lord Bridge, 635A and 640C per Lord Browne-Wilkinson and subsequent authorities such as Melluish v MBI (No 3) Ltd [1996] AC 454, 481F per Lord Browne-Wilkinson and Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816, paras. 55–59 per Lord Nicholls of Birkenhead and paras. 139-140 per Lord Hobhouse of Woodborough. The only possibly relevant conditions are that the statutory provision is ambiguous or that the Minister actually addressed the question now before the court viz (here) whether the information referred to in the sub-section was restricted to information about criminal activity. It is not suggested that the Minister did address this matter and, for the reasons given in paragraph 25 above, it cannot be said that the provision is ambiguous. The mere assertion that a statutory phrase has a particular meaning does not render the statutory provision ambiguous. For my part, I decline the invitation to consult Hansard.
It has been said by Lord Simon of Glaisdale that the long title of a statute is the plainest of all the guides to the general objectives of a statute, see Black-Clawson v Papierwerke [1975] AC 591, 647F. The principle cannot, however, be taken too far since, if the statutory provision is clear, it would be wrong to adopt a restrictive interpretation merely as a result of the long title. For example section 3 of the Wills Act 1861 abrogated the rule of common law that a change of domicile operated as a revocation of a testamentary disposition. The fact that the long title called the Act “An Act to amend the law with respect to wills of personal estate made by British subjects” did not prevent Gorrell Barnes J from holding that section 3 was of general application, see In re Groos Estate [1904] P 269. Ward v Holman [1964] 2 QB 580 provides a more modern example and Lord Simon himself said that a long title “will not always help as to particular provisions”.
The Police Act 1997 has as its long title this:-
“An Act to make provision for the National Criminal Intelligence Service and the National Crime Squad; to make provision about entry on and interference with property and with wireless telegraphy in the course of the prevention or detection of serious crime; to make provision for the Police Information Technology Organisation; to provide for the issue of certificates about criminal records; to make provision about the administration and organisation of the police; to repeal certain enactments about rehabilitation of offenders; and for connected purposes.”.
This long title pithily summarises the provisions of a long and complex Act of Parliament. In the light of the specific provisions contained in sections 112 – 126 of the Act, it would be inappropriate to use the phrase “to provide for the issue of certificates about criminal records” as a straightjacket inhibiting the natural construction of those sections. It is also to be noted that the long title ends with the words “and for connected purposes” no doubt partly for the purpose of avoiding arguments of the kind now put forward.
Ms Lang also relied on the title to Part V in which the relevant sections of the statute are to be found:-
“Certificates of Criminal Records, &c”
but the “&c” confounds that argument.
Subsequent official guidance is usually little more than an arm of the executive expressing an opinion about the meaning of a statute. It is no guide to what Parliament intended at the time especially if, before the guidance is issued, the statute has been amended. The judge thought that the subsequent amendments which had been made to the statute supported the position of the Metropolitan Police Commissioner but, for my part, I would consider later amendments an unsafe guide to the interpretation of the original sections of a statute. It seems to me that the most that can be said of the official guidance relied on in this case is that it discloses an official assumption that information given by local police will relate to criminal activity. That is very different from a considered position about the meaning of section 115(7) of the 1997 Act. No doubt most of the information provided is likely to relate to criminal activity and it is on that basis that official guidance is given.
DfES guidelines are, of course, directly addressed to the potential employers of those required to obtain ECRCs. Any guidance in that context would be irrelevant to the question of interpretation now before the court. The ACPO guidelines stress the importance of the care with which the police’s exercise of discretion should be performed. A reference to the need not to be too restrictive “in frustrating the perpetrators of offences against the vulnerable” cannot, in my view, be read as restricting the giving of information to cases of criminal offences or criminal activity. The best extract from official guidance, from Ms Lang’s point of view, is probably contained in paragraph 31 of Home Office Circular 5/2005 which emphasises the importance of the purpose for which an application for an ECRC is made. By way of example it says that if the essence of an application is in relation to a person’s suitability to work with children, the issue of relevancy should be considered solely in terms of whether the available information suggests
“that the applicant poses a risk of physical or mental abuse to children”.
But even here, the guidance does no more than (at most) proceed on an assumption of what the Act provides. Even this assumption hardly carries Ms Lang to her desired destination. One may readily grant that physical abuse must constitute criminal activity, but mental abuse, while deplorable, is much more difficult to define and it might thus be difficult to assess whether it constitutes criminal activity in any given case.
This prompts a final consideration. If Ms Lang were right and the information provided by the police had to relate solely to actual or potential criminal activity or acts which showed a propensity to crime, it would be a recipe for dispute. The question whether any particular piece of information disclosed a potential crime or a criminal propensity is not an easy question to answer and it might be frequently asserted that the police had simply got it wrong. The police would then be inhibited from disclosing information that might be very relevant. It should be emphasised that an ECRC is not only a requirement for those who work with persons under 18 but also for a whole series of other purposes as set out in sub-section 115(5) of the 1997 Act eg gaming and running or promoting lotteries. In those contexts conduct falling short of actual dishonesty might well be relevant and it would, again, be unduly restrictive to require that information provided by the police must relate solely to criminal activity or propensity.
For all these reasons it seems to me that the judge came to a correct conclusion on the construction of the statute.
The ECHR question
Permission to appeal has been refused on this question. Ms Lang submitted that the judge did not conduct a sufficiently rigorous assessment of the question whether the police had conducted a sufficiently rigorous assessment of the question whether the interference with L’s private life constituted by the disclosure was justified and proportionate under Article 8(2) of the ECHR. The importance of this matter was said to be underlined by the fact that an individual cannot challenge the decision whether to disclose the information but can only, after the disclosure is made, challenge any factual inaccuracy in the certificate. It is said further that, on the authority of R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2006] 2 WLR 719, the court must conduct its own “intrusive” assessment of whether the decision to disclose was a justified interference with the applicant’s right to private life. It was also said that Chief Superintendent Morris was factually wrong to say that the disclosure information would be known to most people to whom disclosure was made, when it was, of course, unknown to the agency who employed her and then deleted her from its books.
There is, in my judgment, nothing in these points. A perusal of paragraphs 83 – 94 of the judgment shows how carefully the judge considered, for himself, the attack on the police decision to provide the information which they did. The police were fully alive to the human rights implications of the disclosure and the fact that disclosure would mean that L would not be able (or, at least, be most unlikely) to obtain employment looking after children. The judge carefully conducted his own assessment of the police decisions. He held that the single factual error did not invalidate the decision. Not only is that obviously right but it must also be recalled that Article 8 is not engaged merely by the loss of (or the loss of opportunity of) employment, see R (Countryside Alliance) v Attorney-General [2006] EWCA Civ 817, [2006] 3 WLR 1017 at paras. 100 – 103 per Sir Anthony Clarke MR. There is no realistic prospect of success on this ground and I would refuse permission to appeal upon it.
Conclusion
The overall conclusion is that the appeal must be dismissed and the renewed application must be refused.
Lady Justice Smith:
I agree.
Lord Justice Moore-Bick:
I also agree.