K, R (on the application of) v Halton Borough Council

MR JUSTICE BURTON: This has been an application by Mr K against the Halton Borough Council. It is a somewhat unusual case which has its own set of facts. That is not to say that the decision depends on those facts alone because there is some general interest in the decision, but it is guided by the particular facts of this case.

Mr K was a head teacher against whom allegations were made with regard to girl pupils, of which he was acquitted on all charges in June 1994. The result of that would be that on a police record would be a record of that acquittal, which would impact inevitably on any job that he might apply for in the future, although given that it is an acquittal it is to be hoped that it would not impact disastrously, and as he is still now a head teacher it looks as though it has not. But that is not the matter out of which this claim arises. The claim arises out of the fact that, subsequent to the charges being laid in respect of those pupils, a section 47 investigation was carried out by the defendant Council in relation to his own son, who was I think then 8.

There was a case conference on 23 August 1993 by the Child Protection Officers of the Social Services Department of the present defendant Council's predecessor body, and the decision was made not to place Mr K's son on the Child Protection Register. He was then, as I have indicated, acquitted, and he engaged thereafter in correspondence with the then Council, not surprisingly, in order to ensure as best he could that at least the matter relating to his son was removed from the records. It was, as I have indicated, then the Cheshire County Council Social Services Department, which was the predecessor of the present Borough Council who are dealing with it. No doubt after the fullest possible investigation, a letter was sent by the senior member of operations of the Halton and Vale Royal Social Services Department of that Council to Mr K and his wife of 24 May 1995, which ended as follows:

There is no indication in the papers before me as to whether there was a response by the claimant accepting that in terms, although, for the reasons that I will indicate, nothing turns on that fact.

The policy at the time as of February 1989 of the Cheshire County Council Social Services Department, Code of Practice on Personal Record Systems, was contained under section 10, "Disposal and archiving" in section 10.2, which said as follows:

The letter was followed up by an unconditional statement -- that is not dependent upon acceptance by the claimant -- by letter to Mr and Mrs K on 17 October 1995, which concluded as follows:

I am satisfied that that is an unconditional promise by the predecessor of the defendant Council by which this defendant Council is bound, so far as it is bound, within the rules of common law built up in relation to legitimate expectation that the files would be destroyed on or as soon as possible after 25 June 2002. The common law rules on legitimate expectation have been considered in a number of cases of which I have been shown: R v Secretary of State for Education ex parte Begbie; R(Bibi) v Newham London Borough Council2002 1 WLR 237. But the case which has been most carefully considered before me as containing the most recent authority from the Court of Appeal, and enshrining not only what is contained in those cases, but also what fell from particularly Lord Woolf MR in ex parte Coughlan [2001] QB 213 is contained in Nadarajah Abdi v Secretary of State for the Home Department, which is seemingly and surprisingly unreported with a neutral citation number of [2005] EWCA Civ 1363.

Lord Woolf's words in Coughlan at paragraph 57 are referred to and approved by the court in paragraph 51, and it was recognised there by Lord Woolf, and by the court in Nadarajah, that there could be circumstances in which a previous promise could be departed from:

The circumstances of the promise are considered in a judgment of Schiemann LJ (as he then was) in Begbie, to which I have referred, and again approved in Nadarajah, whereby at paragraph 39 he said:

At paragraph 68, Laws LJ in Nadarajah itself said:

This raises a particular need for protection for the individual, being an individual to whom a specific promise of that kind has been made by a public authority. The protection is that the authority will be abusing its powers unless it only departs from such promise where there is justification, and proportionate justification, for doing so. But in a case such as this, which I will explain which relates to the retention and disposal of personal files, inevitably Article 8 of the European Convention on Human Rights also arises. There was at one stage raised by the defendant in this case, ably represented by Miss Broadfoot, a suggestion that Article 8 would only apply to disclosure of personal files, but not to retention. Miss Beverley Lang, quite understandably and rightly, rejected that proposition and Miss Broadfoot did not pursue it. It is wholly clear from the authorities, including those reviewed by the Investigatory Powers Tribunal in the matter of App No IPT/03/01/CH, that there is an interference with privacy and private rights within Article 8 simply by the retention of files, not to speak of their disclosure; so that once again within the area of Article 8 there needs to be justification for such interference.

The third relevant area which is raised by Miss Lang in her powerful submissions for the claimant is the data protection area. So far as that is concerned, once again she has shown me that, in relation to files such as this which are plainly sensitive personal data within section 2 of the Data Protection Act 1998 and form part of an accessible record as defined by section 68, being a social services record, the processing which is supervised by the Act under section 1(1) in relation to such information or data means "obtaining, recording or holding the information or data", and by schedule 1 to the Act, personal data shall be processed fairly and lawfully. Specifically by paragraph 5 of the data protection principles, personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.

There is no doubt therefore that in relation to data protection also the principle of necessity applies, and by Schedule 3, paragraph 7, specific reference is made to the processing being necessary under paragraph 7(1)(c) for the exercise of any functions of a Government department or similar local body by reference to the balance of paragraph 7. Consequently, in this area too the burden of justification for holding or disclosing sensitive records can only be justified by necessity. It is against that background that I turn to the facts of the case.

The first submission made by Miss Broadfoot is that the promise contained in the two letters, and in particular the latter letter to which I have referred, was only a promise to comply with the Code of Practice as it might be from time to time, and not a promise to comply with the Code of Practice as it was at the date of the promise. I am not impressed with that argument as it stands, not least because the Code of Practice of the Cheshire County Council is not the same as the subsequent documents upon which reliance is sought to be placed in the sense that when the Halton Borough Council (the defendant) took over in 1998, at some stage thereafter, and neither the evidence nor Miss Broadfoot is able to help us, an entirely new document was brought into existence, and in September 2004, as I shall describe, a yet further set of guidelines, as they are called, came into existence. I read the promise made in October 2005, clearly after careful consideration by the defendant Council, to be a promise that the files would be destroyed on 25 June 2002.

However, even if Miss Broadfoot's submissions were right, and I recite what she says in her skeleton argument at paragraph 16 as follows, slightly rewriting it in order to accord with what her submission was, that the undertaking should be interpreted to mean that the file would be destroyed in accordance with the Code of Practice in existence ... at the time when the file came up for destruction. Assuming that that submission were right, one then needs to look at what happened. The new policy to which I have referred of the new Council came into force at some stage after 1998, as I have described. I am prepared to assume, although there is no evidence to that effect, that what I now have and am about to recite under the heading, "Social Care, Housing & Health Directorate, Children's Services, Policy Procedure and Practice" came into force prior to and was in effect at 25 June 2002. What that provided for under paragraph 6.8 was:

If Miss Broadfoot's submission were right, that the promise was only to comply with the policy in place at the time when the files "came up for destruction", then if she is right that that policy was in by June 2002, that was the policy, and it would have meant that the defendant Council would be able to say that it was justified in not having destroyed on 25 June 2002, but it would need to destroy on 25 June 2003 when that policy remained in place. It did not.

It compounded that failure by a serious error, which is already castigated by the Ombudsman as maladministration, to which therefore I shall say no more about it by way of castigation in this jurisdiction. But on 11 August 2003 details from that file were disclosed quite improperly to OFSTED. I have the letter of 11 August 2003 in the file. It named Mr K. It named the son, which it plainly should not have done. It indicated correctly that the son was not placed on the Child Protection Register as a result of the case conference to which it referred, but it referred to the allegation in relation to the four girl pupils without indicating what the Council plainly knew, namely that Mr K had been acquitted of those charges. That came to the notice, not surprisingly, of Mr K, the claimant, and he launched complaints which resulted in apologies from the Council and the finding by the Ombudsman to which I have referred. What the Ombudsman was not however prepared to do was to order destruction of the file in order to ensure that the Council complied with its undertaking. He did not regard that as falling within the jurisdiction relating to maladministration. He subsequently gave support to the possibility of there being, and of the Council being prepared to abide by, a risk assessment carried out under the guidance of the NSPCC.

The defendant Council, however, stuck to its guns and was not prepared to destroy the file. The reason that it said this was that in September 2004 a new policy was in place, and this policy complied, it indicated, with national guidelines that various bodies had been circulating by way of suggestion as from mid 1993 onwards. The new policy contained in the September 2004 Disposal Guidelines stated this at paragraph 3.8:

The subject matter of these proceedings have been described as being four decisions. The first decision is plainly one that was made more than a few months prior to the issue of proceedings, namely on 14 September 2004 when even before the bringing in of the new policy, the defendant's panel, and notwithstanding the Ombudsman's verdict, decided not to recommend that the defendant destroy the file because of new guidance "to be adopted".

There is then said to be a second decision made on 3 June 2005 when the defendant is said to have decided not to comply with the Ombudsman's decision. That was first categorised as a decision in the letter before action when it was then seemingly intended to join the Ombudsman proceedings when there plainly was a decision by the Ombudsman, which was that there had maladministration which did not recommend destruction and which it must have been intended at that stage to challenge in the courts, although the claimant in the end did not proceed with that course. It is understandable that there should be what is described as a second decision if it is aimed at the Ombudsman, but I am satisfied that there was no settled decision so far as this defendant is concerned.

The third decision as it is described -- in fact second -- was on 16 August 2005, as categorised by the claimant, when the defendant replied to the Ombudsman stating it would not conduct a risk assessment. The fourth decision is contained in the defendant's letter of 19 August, when it declines to reconsider its decisions either to destroy the file or conduct a risk assessment.

There was a case made by the defendants which made the point that there had been delay. Ouseley J granted permission to apply for judicial review, which, according to the House of Lords and other authorities, makes it plain that delay itself cannot therefore be objected to at a full hearing. If permission is intended to leave alive the question of delay, then there ought to be a rolled-up order adjourning permission until the hearing of the full application. That did not occur in this case. However, Miss Lang accepts there is still a discretion in this court to take into account delay in considering whether to grant relief, and, in any event, Miss Lang, if necessary, relies on the fact that the claimant at no time has grounded his feet, but has been seeking to take steps first of all through the Ombudsman, in whom the claimant only gave up faith in or about August 2005, and only then turned his attention to the judicial process. However, I am satisfied that, as the defendant rightly accepts in paragraph 5 of the acknowledgment of service, any earlier decisions were "superseded by the decision dated 1 August 2005". That, I conclude, is right, and there is no delay that can be specifically complained of after 19 August, in the sense that the claim was issued for judicial review on 10 November 2005.

I turn then to consider my conclusion, having briefly recited the relief that the claimant wishes. The claimant's primary case is to seek destruction of the files on the basis that the decision not to destroy them taken in August 2005 was unlawful, either as in breach of a legitimate expectation or by virtue of it being an interference with Article 8. In the alternative, the claimant seeks an order that the defendant now conducts a risk assessment of the claimant to determine whether or not to destroy the file. This relates to a suggestion floated by the Ombudsman which led to the decision not to carry out such risk assessment -- the so-called third decision to which I have referred.

The major objection which Miss Broadfoot puts forward on behalf of the Council is that it would be inappropriate or indeed possibly impracticable to carry out a risk assessment, as she puts it, by way of a generic assessment, and that it would be inappropriate to order the defendant Council to carry that out. I am not entirely sure what is meant by a generic assessment, but what I think it means is that it is only appropriate to carry out a risk assessment when it is known of what there may be a risk and/or in what context the risk is being assessed. Her suggestion had been that there be no destruction order, but that the undertaking of the defendant Council be accepted, that they would not release the file without taking legal advice, as it is put. The implication might be that it is not spelt out that that legal advice might involve risk assessment.

If I were to decline to order relief that the claimant seeks of destruction, I would rather follow the course that was taken by me in R(C) v X Borough, a decision in this court [2002] EWHC 2007 Admin; [2003] ELR 47, when in relation to a similar case of a teacher, although not one to whom any promise had been given such as in this case, I made the order quashing the decision to disclose by one local authority information about the claimant in the context of an application for a reference by another authority which in fact led to the loss of the job opportunity, and making an order restraining disclosure of the relevant document without leave of the court. If I were to refuse the destruction order in this case, that is the order that I would make, and although without instructions as no one from the defendant Council for some reason has attended today, Miss Broadfoot did not vigorously contend to the contrary, although urging me to say that if I did so order, it should be an order dedicated to the specific facts of this case. Plainly that would mean that if there were a desire to disclose on the part of the defendant Council, they would have to persuade the court that it was appropriate to do so in the particular circumstances of the intended disclosure.

I turn then to the application for destruction. I have already indicated that I am satisfied, firstly, that there is a legitimate expectation, and was on 25 June 2002 a legitimate expectation by the claimant that the defendant Council would destroy the file, and that there was a promise with which, subject to any justification or good reason, the defendant ought to have complied with and acted in those circumstances as, in the words of Lord Woolf, (inaudible) in not doing so unless there was such justification; and secondly, that to retain the files, not having destroyed them, not to speak of having positively disclosed them in the circumstances in which they did, was and is a continued interference with Article 8 of the Human Rights Convention which requires justification; and thirdly, so far as it is necessary to believe, that the continued retention of the sensitive information must be shown to be necessary by reference to the Data Protection Act. I do not consider the Data Protection Act further in my judgment, save to say that it is obviously support for the first two propositions.

The importance of the legitimate expectation/promise is of course that it elevates this claimant into a different situation from others. There are those who -- indeed all members of the public -- have a right under Article 8. All teachers would have the expectation in relation to educational records, or those who have been looked into so far as the Child Protection Act have similar expectation in relation to Social Services records that they have Article 8 rights which are being interfered with by continued retention, and retention would have to be shown to be in accordance with the law and justified and proportionate. But this claimant has a special position because he was made a promise that his files would be destroyed in June 2002 -- I shall not say hereafter in the course of this judgment (even on the case for the defendant, 25 June 2003).

Miss Broadfoot has sought to say that there is such justification, such good reason, and she does not put in form by reference to the particular circumstances of this claimant, nor is she able to show me any evidence that there was consideration at the time, whether it be June 2002 or June 2003, of those circumstances or indeed of any balancing act as to whether there should be retention or not. The fact that there was plainly no consideration in relation to these files is not only indicated by the absence of evidence, but by the disclosure of them without apparent thought or restriction shortly after the time they should have been destroyed. She relies on one thing and one thing only, and that is effectively the public interest.

So far as the facts are concerned, she points to the witness evidence in the case, put forward by Miss Maria Bannigan, employed by the defendant Council as the acting Operational Director of Children's Social Care since September 2004. From that point of view, she only took up that office after the entirety of the relevant events, but I take it that she has gained new information from her predecessors as to the position, and she speaks of decisions made or opinions formed by Miss O'Dwyer, who appears to have been the relevant Operational Director of Children's Services. As I have indicated, she does not speak to any particular consideration given in June 2002 or June 2003, or even in September 2004, to the particular circumstances of this defendant. She refers to the fact that, as from the middle of 2003, the general approach nationally was moving towards longer retention of children's files. Clearly, we all know not only how important it is to protect children, but how many lessons have been learned from such matters as the Huntley case. Whether or not it is in those circumstances justified to have the blanket 35-year rule is, as I have already indicated, not up for consideration before me, but that was the rule that was being floated in 1993 and 1994 by various public bodies and associations, which the defendant Council rightly took careful note of, and it is now forcefully said by the defendant, through Miss Bannigan, that the defendant was justified in not complying with the promise simply by reference to that important public interest. It is never going to be possible, she submits, to evaluate a risk. It is not proposed at the moment that any files be disclosed, but that it is important that they be retained in case they ever become relevant, and one can never tell when that might be. File protection must come before all.

It is wholly plain that child protection is vital, and can amount -- no doubt usually does amount -- to an absolute answer where there is any risk or might be any risk to children as a counter-balance to the interference with private rights. But, as I have indicated, here is a special case where there has been a particular promise made to the claimant. It is, as I have already said, plain that there was careful consideration given by the Cheshire County Council to the giving of the promise, and it was not simply an automatic compliance with its then rules because its then rules gave it some discretion, both in relation to when there should be destruction and indeed whether there should be destruction as opposed to archiving, and the conclusion was made and the promise given that, in relation to this claimant, where the investigation of his son had been terminated at a case conference and there would be no resultant placing on the register, a what in effect was seven years archiving was sufficient and appropriate, and that then the files would be destroyed. There was no revisiting of that consideration at all by the defendant, both in response to the Ombudsman and in relation to any independent consideration by the panel to which the defendant referred the issue. What appears to have been some of the consideration was the fact that the claimant Council was now in the process of changing its rules to tighten up the issue of archiving and destruction, and to change it in the light of changing public views.

I am satisfied that there ought to have been a balancing exercise between the public interest and the need for child protection on one side; on the other side the fact that Mr K needed protection, the fact that there had been no worry at all about Mr K if that was the case, and they made no attempt to find out whether it was in the previous ten years or so while he had continued to work as a head teacher, the fact that there was no continuing concern about his son, who in fact had joined Mr K in requesting that the promise to destroy the files be complied with, the fact that if all else fails the police records in relation to the acquittal would remain in the public domain, and above all the fact that there had been a considered promise to the claimant by which, absent some justification, the defendant Council was bound, and to which they gave no reconsideration at all, no suggestion that the particular promise that had been made was one which was ill-considered at the time.

In those circumstances, I am entirely satisfied that the defendant Council did breach their promise, did breach their legitimate expectation, did interfere with Mr K's Article 8 rights, and that they have not begun to satisfy me that there was justification for doing so. They did not carry out a balancing exercise. Had they done so, in my judgment, they would have come up with the answer that there was no reason not to comply with their promise.

Nothing that I say should in any way impinge upon the requirement of all local authorities to be very careful of the interests of all children whom they have responsibility, or to keep particularly careful eye on all teachers. This is a case where exactly that care was taken and a considered decision was come to in 1995, and there was, in my judgment, when bringing in a policy which affected everyone else, no justification for not complying with that promise, when had they actually complied with the promise, the records would have been destroyed two years prior to the bringing into effect of the new policy.

In those circumstances, I do not need to consider the fall-back argument which, if necessary, I would also have ordered as a protection for the claimant, although the very fact that there has been a breach by way of wholly inappropriate disclosure in the past would have left me feeling uncomfortable for the future as to whether it was really safe to leave these files in existence at all. But I would have made that order had I not made the order I do for destruction.

I take into account any possibility of whether delay has affected the relief that I order, but this is a continuing breach of a legitimate expectation, and the sooner these are destroyed the better.

MISS LANG: I am very much obliged, my Lord. Would it be appropriate, so there is no room for misunderstanding, to make an order that the file be destroyed within a certain time period, maybe seven days from the date of the order?

MR JUSTICE BURTON: Yes, what do you say, Miss Broadfoot?

MISS BROADFOOT: I do not say anything about that, although I would suggest that seven days is a bit short and I would ask for 21.

MR JUSTICE BURTON: Sounds like 14 is popping up as a compromise.

MISS BROADFOOT: I missed -- and I do not quite know what happened -- I missed what you said. You said that the Council "did not begin to satisfy me that they had done the correct balancing act, and had they done so ..."

MR JUSTICE BURTON: Had they done so I was satisfied that the balance would have come down in favour of destruction.

MISS BROADFOOT: That is what I thought your Lordship said. I just had to make sure. Thank you.

MR JUSTICE BURTON: Thank you.

MISS LANG: My other application is for costs, to be assessed if not agreed.

MR JUSTICE BURTON: yes.

MISS BROADFOOT: My Lord, I oppose that because this is a less than one-day hearing. The ordinary rule is that the schedule of costs should be served 24 hours beforehand.

MR JUSTICE BURTON: They are not asking at the moment, as I understand it, for summary assessment.

MISS BROADFOOT: Yes, but the fall-back position in a one-day hearing, as I understand it, is that if the schedule is not provided, your Lordship cannot summarily assess it.

MR JUSTICE BURTON: I am not going to. I am not asked to.

MISS BROADFOOT: But the rule is that there ought to be no order as to costs.

MR JUSTICE BURTON: Really, where is that? Sounds very penal that, if that is right. Clearly, I would ordinarily have considered an interim order. I do not like summary assessment. If I am ever asked to make an interim order, I would normally make one, but I am not being asked to make an interim order, but how on earth it can deprive someone of their costs if they have not served a schedule I do not understand.

MISS BROADFOOT: My Lord, I think I will just sit down.

MR JUSTICE BURTON: Very well. You shall have those costs, to be assessed if not agreed. Thank you both very much indeed.

MISS BROADFOOT: My Lord, can I mention one correction?

MR JUSTICE BURTON: Yes.

MISS BROADFOOT: You mentioned that -- I think you wrongly referred to the policy being under consideration in the period 1993/94, when I think your Lordship meant 2003/2004.

MR JUSTICE BURTON: Thank you.

MISS LANG: My Lord, members of the press have asked me to clarify with you the extent of the reporting restriction. Obviously, the claimant's name --

MR JUSTICE BURTON: Yes. I have not mentioned the claimant's name. I have referred to him as K. I have not mentioned his son's name. I have, with your agreement, identified the Council. So there are no reporting restrictions at all as long as the judgment I gave, ie in those terms, is kept to.

MISS LANG: It did not seem to me that there is anything else in your Lordship's judgment that would identify him.

MR JUSTICE BURTON: No, I do not believe so.