Ellis, R (on the application of) v Chief Constable of Essex Police

This judgment relates to an issue of some importance and difficulty. It arises because of an initiative of Sergeant Piers Quinnell, the officer who is in charge of the Burglary and Motor Crime section in Brentwood, Harlow Division of the Essex police. Sergeant Quinnell wishes to introduce an innovative "Offender Naming Scheme" (the "Scheme"). It is not in dispute that the Scheme will involve an interference with the right to respect for the private and family life, under Article 8(1) of the European Convention, of an offender whose photograph is displayed in accordance with the Scheme. However, it is contended that any interference is justified in Article 8(2) as being "necessary in a democratic society in the interests of … the prevention of . . . crime . . . or for the protection of the rights and freedoms of others".

The Scheme was developed with a view to reducing core crimes, such as burglary and car crime in the Brentwood area. The Scheme, according to Sergeant Quinnell, has four objectives:

The Scheme involves displaying posters at train stations and at other travel locations such as garages, places where it is thought it will have the greatest affect on the itinerant criminal. Forty sites have been identified in the Brentwood area. It is proposed that at those sites two different posters of about A4 size will be used. The first poster will have a picture of an individual who is not recognisable and is not an offender. Above the photograph will appear the words "If you commit a crime in Brentwood" and below the photograph appears the words "Your name and image will be on this poster". At the top of the poster will appear the words "Essex Police" and below those words will be the badge of the Essex police. At the foot of the poster will appear the words "Taking a lead in making Essex safer".

The other poster will contain a photograph of the face of a selected offender and above the photograph will appear the name of the offender, the nature of the offence he has committed and the sentence he is serving. Below the picture of the offender will appear the words "If you come to Brentwood to commit crime, expect to do the time". There are the same references to the Essex police, the badge and the words "Taking a lead in making Essex safer".

In support of the Scheme, a protocol has been prepared. That protocol points out the fact that the Essex police are statutory partners, among others, with the Brentwood Borough Council and the Probation Service under the Crime and Disorder Act 1998. As such they are required to consider crime and disorder reduction in all of their activities (see section 17). The protocol deals with the selection of the offender. It refers to the fact that the offender must have been convicted and sentenced to a minimum of 12 months (it was explained in argument that this meant 12 months in custody remained to be served). It also stated that offenders and their legal representatives who were selected for the Schemes would receive an official notification of this on the day that they are sentenced and given a 7 day period in which to register legal objection to their inclusion. It was intended that the offender’s selection should be approved by the Section Inspector at Brentwood and the Divisional Commander of the Harlow Division of the Essex police. It also stated that the views of relevant partners in the Scheme, including the Probation Service, Victim Support and the Community of Brentwood would be obtained and that the Probation and Social Services would have 28 days notice in which to submit a written risk assessment. The risk assessment would then be taken into account in deciding whether to use the photograph of the offender who was the subject to the assessment.

Importantly it was stated that the Probation Service would carry out monitoring and an evaluation process on each offender for two months after the conclusion of the offender’s sentence and furthermore an evaluation of the Scheme to ascertain if there had been any reduction in offending as a result of the publication.

The claimant comes from the Brentwood area (where his family still live). He is 27 years of age and has numerous convictions for offences of dishonesty and car-related crime. On 22 July 2002 he pleaded guilty to 11 offences, including burglary and theft, and asked for 18 other offences of dishonesty to be taken into consideration. He was sentenced to 3 and a half years imprisonment. He is eligible for home detention curfew on 20 October 2003 and conditional release on 18 December 2003.

In November 2002 Sergeant Quinnell thought that the claimant might be a suitable candidate to be the first individual who was the subject of the Scheme. He was aware that the claimant was due to appear before a court to answer charges of further offences. He therefore wrote to the Probation Service and the Essex Social Services inviting them to provide a relevant risk assessment. The Essex Social Services responded by a letter dated 11 December 2002 saying that there was nothing of relevance known in relation to the claimant. The Chief Probation Officer replied by letter dated 6 December 2002 and provided a detailed risk assessment in relation to the claimant which stated:

As to "risk of further reoffending" the view of the Probation Service was:

The conclusion of the Probation Service was:

The views of the Probation Service were then considered both by Sergeant Quinnell and the Deputy Divisional Commander of the Harlow division of the Essex police, Superintendent Coltman. So far as Ellis himself was concerned, it was noted that there was no history of self-harm or mental health problems. It was pointed out that information as to Gary Ellis and his conviction had already been printed in a local newspaper and there had been no reported problems with the family or friends. It was felt that because of his previous convictions and history there was little risk of the Scheme adversely affecting his conduct. Furthermore, it had been indicated at court that he was intending to relocate outside the Essex area. As to his former partner and daughter, they had taken new names so it was considered they would not suffer harm as a result of the publicity.

We refer to the possible adverse consequences of the selection of the claimant as a candidate for the Scheme and the way in which the police conducted a risk assessment because they demonstrate clearly that, if the Scheme is to proceed, a great deal of care and thought would be required of the police before an offender became the subject of publicity under the Scheme. The Scheme could clearly have adverse consequences although in the case of the claimant it was the opinion of the police that this would not happen. However, the personal circumstances of the claimant are now only the background against which the outcome of these proceedings has to be considered, since the police accept that the claimant should now only be a candidate who is used for the purposes of the Scheme after a full reappraisal. Because of this the court is being asked to pronounce on the lawfulness of the Scheme as a matter of principle rather than in relation to the personal case of the claimant. Whether it is appropriate for us to grant relief in these circumstances is a matter which we will consider later.

We have already indicated that the Probation Service had reservations about the choice of the claimant as the first candidate for naming under the Scheme. However, it appears that the Probation Service’s reservations are not confined to the individual circumstances of the claimant. In a letter to the Assistant Chief Constable of the 18 December 2002, the acting Chief Probation Officer indicated that she had agreed "that the Essex probation area would cooperate with the Naming of Offender Scheme", despite serious reservations about it and the lack of adequate consultation prior to it becoming operational. She also expresses concern that other chief officers had not been advised as to how the Scheme would impact on them. Furthermore, she pointed out that the judiciary, in particular the Crown Court judges, as well as the Prison Service and Victim Support had not been advised. She was concerned that there were "no clear criteria for measurement of success or indeed potential negative impact". However, as the police had made clear that the Scheme would go ahead whatever the reservations expressed, it seemed appropriate to work with the police. This was in order to ensure that the impact on the work of the Probation Service to protect the public and its work with offenders to reduce offending would be managed and a risk assessment would be completed prior to any individual being named within the Scheme.

Although this may not have been made clear to the police previously and may have been influenced by the present proceedings, a letter of 19 March 2003 was sent by the Council’s Head of Community Services which states:

In the course of argument Miss Studd, who appeared on behalf of the Chief Constable, indicated that the Association of Chief Police Officers had been approached informally for their views as to the Scheme. Locally they were divided as to its appropriateness. She also indicated that the police had not approached the Home Office for advice.

A statement from Mr Paul Cavadino is part of the evidence relied on by the claimant. Mr Cavadino is the Chief Executive of NACRO, formerly known as the National Association of the Care and Resettlement of Offenders. He is a highly respected authority in relation to penal policy. In his statement he sets out the fact, which is well known, that if a prisoner is released to stable accommodation the risk of reoffending is likely to be reduced. The same is true of an offender released into a job. In the case of the former situation the reduction is likely to be "at least one fifth" and in the case of the latter situation the reduction is likely to be between "one third and one half lower". Mr Cavadino considers that the notoriety resulting from a prisoner being a subject of this Scheme could reduce the likelihood of the offender obtaining accommodation or a job. Thus reducing the likelihood of prison breaking a pattern of the offender’s reoffending. He has also confirmed that there could be adverse consequences on the offender’s family and relationships which again could increase the risk of their offending.

The police had no similar expert evidence but Miss Studd explains that the police were not in a position to incur the expense of employing an expert. However, there were avenues which, as already indicated, they could have explored where advice could have been obtained. Bearing in mind that what was proposed was controversial, and other police forces could well follow Brentwood’s example, while local initiatives are important, it would clearly be preferable for the Brentwood police to have additional appropriate further advice.

There is almost complete common ground between those appearing on behalf the claimant and the defendant as to the appropriate approach in law as to the legality of the Scheme. It starts with a consideration of the decision of Laws J in Hellewell v Chief Constable of Derbyshire [1995] 1WLR 804. That was a case in which the police were asked by an organisation of shopkeepers, that was concerned about the level of local shoplifting, for photographs of individuals known to be causing trouble in the area so that the staff would recognise them. The police provided photographs including one of the claimant which clearly indicated that it was taken when he was in custody. The traders were told not to display the photographs publicly but only to show them to the staff. The proceedings were brought by the claimant who had numerous previous convictions against the Chief Constable and the Chief Constable applied to strike out the statement of claim. The application was granted by Laws J but he considered that a duty of confidence could arise when the police took a photograph of a suspect without his consent yet he considered that the photograph could be published if reasonably required for the prevention and detention of crime, the investigation of alleged offences or the apprehension of suspects unlawfully at large. The police would then be entitled to rely on the public interest defence to any action for breach of confidence. The police in disclosing the photograph in that case had acted entirely in good faith for the prevention or detection of crime and had distributed it only to persons who had reasonable need to make use of it. Accordingly, since the Chief Constable was bound to succeed if the matter went to trial, the claim was struck out.

In his judgment, Laws J cited and applied Marcel v Commissioner of Police of the Metropolis [1992] Chancery 225. Laws J referred to the judgment of Nolan LJ at p261 in Marcel where he stated that:

In relation to his reference to the police being able to make reasonable use of a photograph of an offender, Laws J said:

Laws J did, however, indicate that where the use in question is decided upon as a result of the exercise of the honest judgment of professional police officers that would, of itself, go a long way to establish its reasonableness.

Another case which was relied upon by the parties was the case of the Queen v Chief Constable of North Wales Police and Others ex parte Thorpe and Another [1999] QB 396. That case involved the issue of disclosure by the police on a "need to know" basis of information in the possession of the police relating to convicted paedophiles who were considered to constitute a risk that they would reoffend. The particular disclosure which was the subject of the proceedings, was the disclosure of information about the claimants to a caravan site owner where the claimants were staying prior to the Easter holidays when a large number of children would be expected at the caravan site. The claimants sought declarations that the policy and the decision to inform the site owner of their presence and convictions was unlawful.

In the Divisional Court, Lord Bingham CJ regarded the case as illustrating an acute tension between the interests of a former sex-offender and the interests of the community. He went on to say that the court’s task was not to devise a code of practice to guide the police but to decide whether the policy which was being adopted or its conduct was contrary to law.

In that case the Secretary of State intervened and on his behalf three important principles were identified:

Lord Bingham accepted that the first of those principles is an important and necessary principle underlying such a policy. He did, however, make it clear that the general rule against disclosure is not absolute and added (at p410) "if the police having obtained information about an individual which it would be damaging to that individual to disclose, and which should not be disclosed with some public justification, consider in the exercise of a careful and bone fide judgment that it is desirable or necessary in the public interest to make disclosure, whether for the purpose of preventing crime or alerting members of the public to an apprehended danger, it is proper for them to make such limited disclosure as is judged necessary to achieve that purpose." Lord Bingham also thought the third principle was necessary and important.

The Court of Appeal dismissed the claimants’ appeal. In giving the judgment of the court the Master of the Rolls stated (at p428) "Disclosure should only be made where 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 practically be obtained in the circumstances." Later he added:

Both the cases to which we have referred were decided before the Human Rights Act 1998 came into force and that Act has affected the approach of the court. Where human rights are at stake, as is agreed to be the position here, the court’s task is no longer merely supervisory and confined to applying the Wednesbury test.

The position now is probably best reflected in the speech of Lord Steyn in R v (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at p548. Having previously examined the need for heightened scrutiny in cases involving fundamental rights and indicating that there is "a material difference between the Wednesbury and Smith grounds of review and the approach of proportionality applicable in respect of review where Convention rights are at stake"; Lord Steyn added in an Article 8 context:

At a late stage, the claimant sought also to rely upon the Data Protection Act 1998. However, in the course of argument, the parties accepted that the position under the Data Protection Act is the same as that already indicated under Article 8. This is because of the combined affect of section 29 and schedules 2 and 3 of the Act which, inter alia, make exempt the processing of personal data for the prevention or detection of crime when the processing is necessary for the exercise of any functions conferred by or under any enactment. As Mr Tim Owen QC, on behalf of the claimant, accurately submits, under the 1998 Act, in order to establish the legality of the Scheme it has to be shown that the inclusion of a selected candidate is necessary for the discharge of the duty cast upon the police to formulate and implement policies designed to reduce crime and disorder. The reference to "necessary" in this context requires that the action on behalf of the police should be a proportionate response in precisely the same way it is described by Lord Steyn in Daly.

There are only two other principles of law to which we would seek to draw attention. The first is relevant to some of the publicity associated with this case. This was to the effect that the claimant having regard to his criminal record deserved to be punished by being ‘named and shamed’. It is a principle of law that the police are not entitled to punish and they do not seek by the Scheme to punish an offender by ‘naming and shaming’ him. This is the responsibility of the courts. The claimant received the punishment that was appropriate when he was sentenced by the court.

The other principle which is of the same importance is that it is a long-established view of the law of this country that, subject to any legislation altering the situation, a prisoner retains all his rights, including those under the Human Rights Act, that are not taken away expressly or by necessary implication by the fact of his imprisonment. (See Lord Wilberforce in Raymond v Honey [1982] AC 1 at p10.)

Having indicated what we regard as the relevant legal principles, we will now apply those principles to the present situation. In doing so we have very much in mind the submission of Miss Studd that this Court should not declare as unlawful a genuine initiative on the part of the police that was devised in an attempt to perform their statutory duty under the Crime and Disorder Act 1998 to formulate and implement strategies for reduction of crime in their area. The police in the area are confident that the Scheme would be successful but they recognise that whether they are right can only be established if the Scheme is implemented at least for a trial period. As to this it is to be noted that they are proposing that the implementation of the Scheme should be carefully monitored by both the Probation Service and the police and should be for a limited period of not more than a year. If after this period no positive results are identified, then the Scheme would not be pursued further.

It is also correct, as Miss Studd submits, that this is a genuine initiative on the part of the police and that their objective is in the public’s interest since it is to reduce crime and increase the confidence of the public in the effectiveness of the police and the criminal justice system generally. We attach considerable significance to this last point. We have very much in mind that we have not only to take into account the rights of the offender who is to be the subject of the Scheme but those of the public as well. It is necessary to remember that the sort of crimes targeted by the Scheme are ones that cause very deep concern to the victims of those crimes as well as the general public. As against this, it is also necessary to take into account the dangers to which Mr Cavadino refers of the Scheme interfering with the rehabilitation of offenders. This is also in the public interest since it reduces crime.

In relation to the position of the claimant, the police thought that having regard to his record, the question of rehabilitation was of little if any significance. But this approach fails to recognise that the majority of offenders with his sort of record, grow out of their criminal habits as they grow older. There is going to be an occasion, it is to be earnestly hoped, sooner rather than later, when the claimant will decide to try and put his criminal conduct behind him and statistics suggest that when he tries to do this there is a real prospect that he will be successful.

Judging by the way in which the claimant’s case was dealt with, and this is the only example we have, the police do appear to have been sensitive to the risk of harm being caused to the offender’s family. However, if it had been necessary to consider the lawfulness of the decision which was made in the claimant’s case, we would have been concerned about the police’s superficial reaction to the risk factors identified by the Probation Service. Damage could be done to the claimant’s family even if his partner and child had changed their names. The family of the offenders and in particular any children of the offender, have rights under Article 8 as well. The need to safeguard children is particularly important. It does not need much imagination to see how a poster campaign in relation to a child’s father could produce unfortunate reactions in the playground of the child’s school. The change in name of the child would provide little if any protection against children who know the child by the offender’s name. The child could already be affected by the break of the relationship between his parents and continued publicity could increase the problem. There is a real question as to whether it would ever be appropriate to nominate a father of young children; particularly as it should be possible in view of the small number of offenders who are proposed to be selected to choose from offenders who have no children.

We have less concern over the offenders as the posters are to be displayed shortly after they have been sentenced and then for only three weeks at least 12 months prior to the offenders being released back into the community. The Scheme does, however, involve a degree of unfairness since it involves discrimination between the offenders who are featured in the Scheme and those who are not. Although, the police cannot justify the use of the Scheme as being an additional punishment, (a punishment that could not be imposed by a court) those who feature in the Scheme will regard it as a punishment and they will be justified in doing so since the Scheme is based on offender’s dislike of being publicly named.

We turn to the remedy which it would be possible for the court to grant bearing in mind that the Court is being asked to decide this issue as a matter of principle and not in relation to the particular facts relating to an individual. If the situation was one where the Scheme was obviously lawful or obviously unlawful, then the court could grant a declaration to this effect. This would be desirable because it would remove any doubt as to the legality of the Scheme. However, in our view this is not desirable here. Whether the operation of the Scheme is lawful or unlawful will depend upon the circumstances of the offenders solicited for the Scheme and how it is operated in practice. We have already indicated the need for appraisal and monitoring and the undesirability of young children being involved. There also has to be a more structured assessment of the risks involved backed by more information and appropriate professional advice than was available in relation to the claimant. For example, it would be desirable for further advice to be obtained as to the merits of the Scheme and its operation from the Home Office.

This information is needed before it can be assessed whether the possible benefits of the Scheme are proportionate to the intrusion into an offender’s Article 8 rights. The Scheme is clearly going to involve considerable activity by the police both before the Scheme comes into operation and during its period of operation. There must be at least a doubt as to whether the benefits that are likely to be achieved justify this burden. However, whether or not the input required is likely to be justified by the outcome is a matter not for us but for the police themselves. But a court cannot give the Scheme a ‘green light’ without this activity. Until the information is available, the "light must remain at amber".

On the material which is before us, we are not prepared to grant a declaration that the Scheme is not capable of being operated lawfully during a trial period. Whether it is can only be answered when the properly investigated circumstances of a specific individual’s position is before the Court to adjudicate upon. The outcome will then turn on the facts of that case.

We therefore make no order on this application.