W v Chief Constable of Northumbria [2009] EWHC 747 (Admin)

[2009] EWHC 747 (Admin)Case No CO/2151/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 7 April 2009
Before
THE HON MR JUSTICE NICOL
Between
WClaimantCHIEF CONSTABLE OF NORTHUMBRIADefendant
Julian B Knowles instructed by Michael Purdon Solicitors for ClaimantNicholas Wilcox instructed by Director of Legal Services Northumbria Police for DefendantHearing Hearing dates: 23 rd March 2009 to 24 th March 2009
Judgment

Introduction

[1]The Claimant seeks judicial review of the disclosure of two matters by the Northumbria police to his employer: his conviction for sexual assault in 1987 (when he was 16); and his arrest in June 2007 for a series of alleged sexual assaults on his daughter. In order to protect the identities of children (who have also been the subject of separate proceedings in the County Court), I will refer to the Claimant as ‘W’ and to his daughter as ‘R’. I have made an order under s.39 of the Children and Young Persons Act 1933 prohibiting publication of any matters which are likely to lead to the identification of R or W’s other child, X. That order does not prevent publication of this judgment or a fair summary of it.[2]The Claimant drove a delivery lorry for his employer. He delivered household goods to stores and to private residences. Assistant Chief Constable Vant of the Northumbria Police took the decision to make these disclosures on 26th October 2007 and the actual disclosures took place on 29th October 2007. Very shortly after that, on 5th November 2007 the Claimant was summarily dismissed. He was told ‘You have been arrested and put on police bail. The nature of the allegations against you are of such a serious nature that they may discredit the name of [the employer] and as such is deemed gross misconduct.’ The Claimant has given evidence that the loss of his job has had a very seriously detrimental effect on his life.[3]At the time of these events the Crown Prosecution Service was considering whether the Claimant should be prosecuted for sexually assaulting his daughter. On 5th December 2007, that is about 6 weeks after the disclosure and one month after his dismissal, the Claimant was informed that he would not be charged.[4]However, since July 2007 R (whose date of birth was 29th May 1995) and the Claimant’s son, X (whose date of birth was 26th February 2006) had been the subject of interim care orders. The Local Authority sought findings of fact from the County Court as to various matters including the allegations that the Claimant had sexually abused his daughter. The Claimant was given notice of the hearing of that application, but he did not attend and was not represented. On 27th February 2008 the Judge, Mrs Recorder Armitage, found that he had sexually abused his daughter on many occasions between 1999 or 2000 and 2006. Mr Knowles, on behalf of the Claimant, takes issue with the relevance of these findings to the present proceedings which concern the lawfulness of the Defendant’s decision and disclosure that had taken place four months before. I will return to that submission in due course.

The factual background

[5]I need to say a little more about the Claimant’s history. His 1987 conviction arose out of events in 1986 when he was 15. He sexually assaulted a three year old boy whom he had been babysitting. He pleaded guilty and was sentenced by Newcastle Juvenile Court to a 12 month supervision order.[6]In 2001 the Claimant’s stepson, J, alleged that the Claimant had physically and sexually abused him when he was 14. J also alleged that the Claimant had sexually abused R when she was about 4 years old. The Claimant denied in police interview that he had assaulted either J or R. He was not prosecuted. J is now 20, but because he has claimed to be the victim of a sexual assault, the Sexual Offences (Amendment) Act 1992 s.2 requires his anonymity to be respected as well.[7]The Claimant lived apart from his wife for a short period in 2001, but they resumed living together again after a few months. J and R continued to live with them. In 2006 the Claimant and his wife had their own son, X.[8]The social services department of the local authority became aware that the Claimant was again living with his family in about 2007. They were concerned because of the past allegations of sexual abuse. R and X were placed on the At Risk register.[9]In June 2007 J and R spoke to a local authority social worker and R made further allegations that her father had sexually abused her. She was then aged 12. She was interviewed by the police. One of the investigating officers was DC Lumsden who had also been involved in investigating the allegations against the Claimant in 2001. The interview was video recorded. R alleged that her father had sexually abused her since she had been about 4 or 5. R was not willing to be medically examined. R and X became children who were looked after by the social services department.[10]It was following these allegations that the Claimant was arrested on 5th June 2007. He was interviewed on the same day. He was asked about his employment. He gave his employer’s name. The transcript of the interview continued:
“Q. What kind of firm is that, you’ve said that you are a driver. A. yeah, I’m a driver delivering to stores. Q. Delivering to stores? A. yeah it’s like furniture basically where you can’t get credit you go in and pick what you want a pay for it (inaudible) percent all of the time. Q. And you deliver goods to the customers. A. I deliver to the shops Q. You deliver to the shops? A. (inaudible) vans.”
I note that in a witness statement prepared for the hearing, Mr Purdon has taken issue with the accuracy or fairness of this transcript. Q. Delivering to stores? A. I deliver to the shops

Q. You deliver to the shops?

[11]The Claimant was allowed supervised access to R and X. The social worker with primary responsibility was Marie Carver. On 16th October 2007 Ms Carver contacted DC Lumsden and reported her concern that the Claimant had told her that he delivered furniture into peoples’ homes. On one occasion, he had told her, he had fallen on his head or shoulder when he was putting up a bed. Ms Carver expressed her concern that the Claimant was entering peoples’ homes where there could be children present. She was certain that the Claimant had been talking about events that took place in other peoples’ homes. She felt that ‘this man was a classic groomer and that his working environment would be a cause for concern.’[12]DC Lumsden shared Ms Carver’s concerns and, in particular, contrasted what the Claimant had told her as to delivering to peoples’ homes with what the Claimant had said in interview about delivering to stores. DC Lumsden thought that the Claimant had said he ‘only’ delivered to stores, but that is not reflected in the transcript of the Claimant’s interview.[13]DC Lumsden reported her conversation and concern to DS Colling. The latter had been employed with the Risk Management section of the Public Protection Unit of the Northumbria police for some 3 years. He thought that the contrast between the information which the Claimant had given to Ms Carver about his job and that which he had given in his police interview meant that he was prepared to lie. DS Colling was also concerned that the Claimant’s return to the home where there were children who had made allegations of abuse against him meant that he was grooming the children and his wife to accept abuse as normal.[14]DS Colling tried to speak to the Claimant at his home and on the telephone at a range of times over the period 16th – 18th October 2007. He eventually managed to speak to the Claimant at his work on 19th October 2007. DS Colling said that he was especially concerned about the Claimant going to customers’ homes. The Claimant confirmed that that was what he did but said that he was never left alone when doing so. DS Colling said that the Claimant should seek legal advice if he had concerns about the process of disclosure and that DS Colling would speak with him and his legal representative when he answered to his police bail on 24th October 2007.[15]The Claimant did speak to his solicitor, Mr Purdon. On 23rd October 2007 Mr Purdon tried unsuccessfully to call DS Colling but then wrote to the Chief Constable threatening to bring judicial review proceedings. Mr Purdon said that there was no good reason why information should be disclosed to his client’s employer. He asked for a detailed justification for any such disclosure. The letter was faxed. An in-house trainee solicitor replied the following day (24th October 2007) to say that he had spoken to DS Colling and no decision had by then been taken as to disclosure. Judicial review was therefore premature.[16]On 24th October 2007, the Claimant did attend at the police station as he was obliged to do. DS Colling spoke to him, explained the voluntary disclosure form and asked him for his comments. The Claimant was with a Michael Harm who was a representative of Mr Purdon’s firm (though, I am told, Mr Harm was not himself legally qualified). The Claimant declined to agree to disclosure or to answer any questions about the matter. DS Colling says that he wished to ask the Claimant about his working arrangements and what exactly the Claimant did. However, on the advice of Mr Harm, the Claimant refused to discuss the matter. Mr Purdon says that he had told Mr Harm that if the question of third party disclosure was raised he should say that Mr Purdon had written to the police headquarters about that. After the meeting, Mr Harm reported back to Mr Purdon that he had told the police that Mr Purdon had instructions from the Claimant to deal directly with the headquarters about the disclosure issue.[17]On 25th October 2007 DS Colling completed a ‘Third Party Public Interest Disclosure’ form which set out his case as to why there should be disclosure of the Claimant’s 1987 conviction and his arrests in 2001 and 2007 to the Claimant’s employer. It asked for permission to make the disclosure to Mr O, a senior member of the employer who could re-assign the Claimant to other duties if necessary. In assessing the risk that the Claimant posed, the form drew attention to the young age of the child whom the Claimant had abused when he was a teenager. It commented that the Claimant appeared to be moving from sibling to sibling within the family and the apparent use of grooming techniques to enable him to be accepted back into the family home. It noted that Ms Carver, the social worker supported disclosure.[18]DS Colling discussed his proposal with DS Coleman who endorsed disclosure of the 1987 conviction and the 2007 arrest but not the 2001 arrest. DS Colling accepted the modification and DS Coleman drafted letters for ACC Vant to sign if he approved this course of conduct. These gave details of the assault which led to the 1987 conviction. In connection with the 2007 matter the letters said that the Claimant had been arrested for the offence of sexual assault on a child under 13 and was currently on police bail. One letter was for the Claimant; one for Mr O. DS Coleman attended ACC Vant on 26th October and briefed him about the proposal. Mr Vant considered that the disclosure was proportionate and outweighed the individual rights of the Claimant. He gave his approval to disclosure of the 1987 conviction and the 2007 arrest, but not the 2001 arrest. He signed the letters which were passed back to DS Colling.[19]DS Colling spoke to Mr O the same day. Because Mr O was going to be unavailable, he said that the disclosure should go ahead to Mr S instead. This was confirmed in writing. DS Colling went to the employers on 29th October 2007 (the next working day). The letters signed by ACC Vant were shown to the Claimant and then to Mr S.

The 1987 conviction

[20]In 1987 the Claimant came before a Juvenile Court. The public are not admitted to these proceedings - see Children and Young Persons Act 1933 s.47(2). Media representatives can be present and can report the proceedings, but they must not identify the defendant absent a specific order from the Court - ibid s.49. So far as I know, no such order was made in this case. His plea of guilty and sentence were not, therefore, matters which were publicly known.[21]Of greater importance, though, is the age of the conviction. Coupled with the sentence which was imposed this meant that the conviction became ‘spent’ in 1988 – see Rehabilitation of Offenders Act 1974 s.5(5). One of the effects of a conviction becoming spent is that it need not be disclosed to an employer and the failure to disclose it cannot be a proper ground for dismissal or for prejudicing a person in any way in his employment – ibid s.4(3)(b). There are, of course, exceptions where even spent convictions must be disclosed to a potential employer – see for instance s.4(4) and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1974. However, it is common ground that none of them applied to the Claimant’s employment.[22]In 2003 the Home Office drew up a circular in conjunction with the Association of Chief Police Officers regarding the disclosure of criminal convictions amongst other things – see Revised Arrangements for Police Checks HOC 047/2003. The circumstances contemplated by the Circular include disclosure under police common law powers for the prevention of crime – see paragraph 12. Paragraph 14 of the Circular provides “Convictions which are spent under the Rehabilitation of Offenders Act 1974 should not be disclosed unless the matter in question is covered by the terms of the Exceptions Order made under the 1974 Act.” As I have said, it is common ground that this case was not covered by the Exceptions Order.[23]The Circular does not impose obligations tantamount to a statute or a statutory instrument. I accept the submission by Mr Wilcox on behalf of the Defendant that departure from the Circular is not necessarily unlawful. However, as Laws LJ said in R (Khatun) v Newham LBC [2005] QB 37 CA at para [47] “respondents to such a circular must(a) take it into account and(b) if they decide to depart from it, give clear reasons for doing so.” That was said in relation to a different Circular from central government, but Mr Wilcox did not contend that any different principle should apply in the present situation.[24]In this case, as Mr Wilcox candidly accepted, there is no evidence that Mr Vant did take account of the Circular. There is certainly nothing in the contemporary documentation or the subsequent witness statements served on behalf of the Defendant to explain why it was thought necessary to depart from the Circular in the present circumstances. The truth seems to be that no one on the part of the Defendant seems to have considered the 1974 Act at all. There is no mention of it in any of the correspondence from the Defendants and some of the letters emanating from the Force Solicitor appear to imply that the Claimant might have dishonestly concealed his conviction and this (if the case) would have justified his dismissal. That was wrong. Since the conviction was spent, the Claimant had a statutory right to say nothing about it when seeking employment. Any dismissal because of his failure to disclose that conviction would have been improper.[25]Accordingly, the Claimant has an unanswerable complaint that the decision to disclose his 1987 conviction was unlawful because it was taken without regard to material circumstances, namely the fact that this was a spent conviction for the purposes of the Rehabilitation of Offenders Act 1974 and the advice in the Home Office Circular 047/2003. I will return to this matter after considering the other aspect of the disclosure made by the Defendant.

The Claimant’s arrest in 2007

[26]There was no significant disagreement between the parties as to the general principles which govern police disclosures of information held by the police where that disclosure is not for some specific statutory purpose but in furtherance of their common law powers to prevent crime.[27]The restrictions derive from principles of administrative law and from Article 8 of the European Convention on Human Rights. In R v Chief Constable of the North Wales Police ex parte Thorpe [1999] QB 396 the police had disclosed information about the presence of a couple who had been convicted of sex offences against children to the owners of a caravan site where the couple had taken up residence shortly before the Easter holidays. Lord Bingham CJ, in the Divisional Court said at p. 409, “When, in the course of performing its public duties, a public body (such as a police force) comes into possession of information relating to a member of the public, being information not generally available and potentially damaging to that member of the public if disclosed, the body ought not to disclose such information save for the purpose of and to the extent necessary for performance of its public duty or enabling some other public body to perform its public duty.”[28]In the Court of Appeal the Claimants argued that they had been treated in a procedurally unfair manner because they had not been given an opportunity to comment on the material before disclosure had been made. Lord Woolf said at pp.427-8 “On behalf of the Secretary of State, Mr. Eadie advanced careful and well-balanced submissions as to how the duty (which he accepted existed) to act fairly should be exercised. He agreed that there are cases where it would be desirable, so as to ensure as far as possible that the police are acting on accurate information and so as to ensure the necessary degree of fairness, to afford individuals in the position of the applicants some opportunity to comment. However whether such an opportunity should be afforded and the form that it should take depends on the particular circumstances of a particular former offender. In determining what should be done the overriding priority must remain to protect the public, particularly children and other vulnerable people. The timescale involved may make it not possible to afford an opportunity to comment. The information in the police's hands may be of a category which means that it is unlikely that the subject could be expected to add anything of value. The information available to the police may be information upon which the subject has already had an opportunity to comment. The information may be of a nature which means it would be undesirable for it to be disclosed because of its confidentiality or sensitivity or on the grounds of public interest immunity. There is no formal procedure with which the police should be required to comply. The police should be allowed to act in a sensible pragmatic way. It should be remembered that they have to rely upon the advice of experts and they should not be required to test opinions which they have received from experts. Our conclusions We had no difficulty in endorsing Mr Eadie's general approach. Each case must be judged on its own facts. However, in doing this, it must be remembered that the decision to which the police have to come as to whether or not to disclose the identity of paedophiles to members of the public, is a highly sensitive one. Disclosure should only be made when there is a pressing need for that disclosure. Before reaching their decision as to whether to disclose the police require as much information as can reasonably practicably be obtained in the circumstances. In the majority of the situations which can be anticipated, it will be obvious that the subject of the possible disclosure will often be in the best position to provide information which will be valuable when assessing the risk. In this case the gist of what Detective Sgt Lewis had learnt about the applicants should have been disclosed to them. At least consideration should have been given as to whether to disclose the report from the Northumbria Police. This did not happen and we were not made aware of any reason why there could not have been disclosure. The applicants might have had information which would have caused the Detective Sergeant to reassess the degree of risk. Appalling though their record is, their past offending had been confined to children within their family and a friend of one of their children. As to the problem caused by the closeness of the Easter holidays, we do feel that if Detective Sgt Lewis had appreciated the importance of giving the applicants an opportunity to comment at least on the gist of the information he had received, the time constraints under which he was acting would not have made it impracticable to disclose to the applicants what he had learnt. Having said that, bearing in mind that the probation officers were aware of the inaccuracies in the information which had been provided by the Northumbria Police but was still of the opinion that the applicants created a high degree of risk, we do not accept that any information which the applicants could have given, if they had been given the opportunity to comment, would have altered the outcome.

Our conclusions

[29]The Court of Appeal also considered the effect of Article 8 (although the Convention was not then in force as part of English law). Lord Woolf said at p. 429 “Both under the Convention and as a matter of English administrative law, the police are entitled to use information when they reasonably conclude this is what is required (after taking into account the interests of the applicants), in order to protect the public and in particular children….However, where the use in question is decided upon as a result of the exercise of an honest judgment of professional police officers, that will of itself, go a long way to establish its reasonableness.” The Court would be slow to characterise as irrational an operational decision to disclose information about sexual offenders where the motive of the police was to protect children and the endorsement of disclosure by other agencies was influential in persuading the court that the decision could not be regarded as irrational - see p. 430.[30]This decision was followed by Dyson J. in R v a Local Authority in the Midlands ex parte LM [2000] 1 FCR 736. Allegations of sex abuse had been made against the applicant by an 11 year old boy. No action was taken. 11 years later the applicant entered into a contract with a local authority to provide bus services for school children. Before the contract began to run, the authority wanted to conduct background checks on the applicant. He sought an order from the court that the old allegations of sex abuse should not be disclosed. The Judge emphasised that disclosure should be the exception and not the rule. There had to be a “pressing need” on the facts of the particular case. That was because of the severe adverse consequences which could follow from disclosure. Without purporting to provide an exhaustive list, Dyson J. suggested factors which would usually have to be considered by the public authority. They were:(i) the authority’s own belief in the truth of the allegation;(ii) the interest of the third party in obtaining the information and(iii) the degree of risk posed by the person if disclosure was not made which would involve considering the person’s previous history (if any) of involvement with children - see p.747-748.[31]Mr Knowles draws attention to some of the comments made by Dyson J. in relation to his second factor where he said at p. 748:
“Even if the request comes from a local authority, some assessment should be made of the need of that authority to know about the allegations. The need to disclose is clearly more pressing if the authority are considering employment of the person in a residential home for children than, say, as a traffic warden to escort children across the road. Some assessment should, therefore, be made of the level and quality of access to children that is likely to be available to the person about whom the information is held. Paragraph 15 of the circular provides valuable guidance as to the factors that should be taken into account in deciding whether to seek or undertake a police check. These are: does the position involve one-to-one contact? Is the position unsupervised? Is the situation an isolated one? Is there regularly contact? Are the children particularly vulnerable?”

Disclosure of the 2007 arrest

[32]The Claimant submits that this disclosure was unlawful for the following reasons:a. The police failed to ascertain the extent to which he came into contact with children in the course of his employment and/or the police misunderstood the nature of his employment. The police acted unfairly towards the Claimant because they did not consult him before taking the decision to disclose.b. The police failed to inquire into the strength of the 2007 allegation and the likelihood of him being charged.c. The decision to disclose the 2007 allegation was perverse given the decision not to disclose the 2001 allegation.d. The test of pressing need for disclosure was not met.e. The disclosure was unlawful because it was made to Mr S and not Mr O.[33]The Claimant submits that in reality he had very little, if any, contact with children in the course of his work. He drove a 7.5 tonne delivery wagon which was always double crewed. A second person was essential to deal with paperwork and to assist in unloading the heavy furniture which they were delivering. He did not have a regular assistant, but he was assigned a mix of employees and agency staff. In general they carried three piece suites. On one occasion they had delivered a washing machine. On another they delivered a bed, but the customer had not wanted their help in erecting this. Ms Carver had misunderstood what he had said to her. He had injured his back when erecting his own bed in his own flat. The Claimant’s working practices meant that apart from the occasional delivery before 9.00am the deliveries took place during school hours. There had to be an adult on the premises to sign a receipt for the deliveries. Children were rarely present and, if they were, they would need to be kept out of the way to avoided being physically injured. Once the Claimant had finished helping to deliver the goods, he returned to the lorry while his mate dealt with the paperwork. The Claimant had never delivered goods to the upstairs of a house.[34]The Claimant submits that if the police had made proper inquiries, they would have discovered these facts and would have appreciated that the risk of him coming into contact with children in the course of his work was so remote that there could be no pressing need for disclosure of the allegations by his daughter.[35]It seems to me that this submission is intimately linked with the allegation that the police treated the Claimant unfairly by not giving him a proper opportunity to comment. I accept that it is for the Court to judge whether the Claimant was treated fairly. In other words, it is not enough for the Defendant to submit that their decision as to what was fair is Wednesbury reasonable.[36]As to fairness, the Defendant responds that DS Colling did give the Claimant that opportunity to answer questions about his work. I have set out above what DS Colling said to the Claimant on 19th October and what then took place between them on 24th October 2007 when the Claimant and Mr Harm attended the police station. On the face of it, the Claimant was given an opportunity to comment but chose not to take it.[37]Mr Knowles responds by submitting that this was not a proper consultation. He says first that by this time DS Colling’s mind was already made up. On 23rd October 2007 DS Colling had spoken to Mr S and said that he was going to speak to the Claimant to see if he would disclose certain information to the employer voluntarily. If he would not, DS Colling said, the police would make disclosure to them. Mr Knowles submits that this showed that DS Colling was set on making disclosure and, while the decision would nominally be that of ACC Vant, DS Colling was the driving force and his mind was made up. On 24th October 2007 DS Colling asked the Claimant to make voluntary disclosure to his employer.[38]I do not accept this submission. The decision as to disclosure had to be and was taken at a much more senior level than DS Colling. There is simply no evidence that ACC Vant was aware of the proposed disclosure before the application was put before him by DS Coleman on 26th October 2007. Nor is there any evidence from which I could conclude that ACC Vant was a mere cipher or just rubber stamping decisions that his subordinates had already taken. But, in any case, there is evidence that DS Colling’s own mind was not fixed as of 24th October. It was after that date that he and DS Coleman discussed the merit of including the 2001 allegation in the disclosure. On 25th October DS Colling agreed that that aspect of the proposal should not be pursued.[39]Mr Knowles second reason for submitting that the 24th October did not give a proper opportunity to comment was that by then Mr Purdon had written to the Force solicitor. Mr Harm told DS Colling that the Claimant wished his solicitor to deal with police headquarters about that matter. There should have been further discussion at the level of Mr Purdon and the police headquarters before it could be said that there had been adequate consultation.[40]I do not accept this submission either. DS Colling had told the Claimant that he would have an opportunity to discuss the matter with him on 24th October and that the Claimant might wish to take legal advice. Mr Purdon’s letter of 23rd October threatened an application for judicial review. It did not allude to that part of the conversation on 19th October when DS Colling had said that there would be an opportunity to speak on 24th October. There was no agreement by DS Colling that the inquiries he wished to make should be conducted instead between Mr Purdon and the Force Solicitor and Mr Purdon could not unilaterally insist that that was how the consultation should take place. Mr Knowles refers to the letter written by a trainee solicitor in the employment of the Defendant on 24th October. The trainee said that he had spoken to DS Colling and that the threat of judicial review was premature because no decision to disclose had by then been taken. It is unclear exactly when the trainee and DS Colling had spoken (whether before or after the Claimant had answered to his bail). It is also unclear when that letter was sent or received by Mr Purdon: it uses his postal address and contains no fax number so it may be reasonable to assume that it was posted. If that is right, whatever inference is to be drawn from that letter could not have affected Mr Purdon’s understanding as to what the Defendant had agreed or intended to do as of 24th October.[41]So far as DS Colling was concerned, the Claimant attended the police station with a representative of his solicitor on 24th October but refused to answer any questions about the matter of the proposed disclosure. DS Colling was seeking information about the Claimant’s work practices. He was not investigating an alleged offence by the Claimant (in this respect). It would have been open to the Claimant, either directly or through his solicitor, to provide the information which I have summarised above.[42]Mr Knowles argues that DS Colling could have spoken to Mr Purdon or someone in headquarters could have done so. So they might. However, I have to decide whether the failure to do so means that the Claimant was treated unfairly. In my judgment it does not. The Claimant was the one who could provide this information but was not willing to answer questions on the subject.[43]Mr Knowles also argues that DS Colling could have spoken to the employer about the Claimant’s potential contact with children in the course of his work. Mr Knowles draws attention to DS Colling’s willingness to speak to the employer on 23rd October and submits that carefully structured questions could have been posed which elicited the necessary information without revealing that the Claimant was suspected of child abuse. I am very doubtful whether such questions could have been asked without causing the very prejudice of which the Claimant now complains. Even if that would have been theoretically possible, I am clear that the police did not treat the Claimant unfairly because they did not embark on that tricky exercise in the face of his own unwillingness to answer questions.[44]ACC Vant’s witness statement makes no reference to the correspondence between Mr Purdon and the trainee solicitor. I do not know whether it was drawn to his attention. If it was not, that would have been unfortunate, but I do not think that this alone means that the Claimant was treated unfairly.[45]In conclusion, I reject this ground of complaint. The police did take steps to ascertain the scope of the Claimant’s potential contact with children. He was given an opportunity to provide further details. He declined to take that opportunity. His solicitor’s demand for disclosure to him was not one which was acceded to by the Defendant.

Failure to inquire into the strength of the 2007 allegation

[46]After the decision was taken by the CPS not to charge the Claimant, Mr Purdon spoke to DC Lumsden as to the reasons. She said that R had not been willing to undergo a medical examination and there was concern as to fact that R’s allegations had been made following her conversation with J who had been the source of the 2001 allegation. These matters had been known to the investigating officers for some time and well before the disclosure to the claimant’s employers. The Claimant argues that the strength of the evidence against him was an important point for ACC Vant to investigate and the decision to disclose was flawed because he did not do so.[47]Mr Wilcox argues that the CPS had to consider whether there was a better than 50% prospect of persuading a jury that they could be sure that the Claimant had sexually assaulted his daughter. The decision of the CPS that this evidential test could not be not satisfied is nothing to the point in considering the very different task which ACC Vant had to undertake in deciding whether to disclose the allegation of sex abuse to the Claimant’s employer. Mr Knowles responds that, while the standard against which the evidence had to be judged in the two contexts was different, it would still have been relevant for ACC Vant to investigate the CPS’ reasoning process. If by then the CPS had doubts about the veracity of the complaints, their thinking would have been germane to Defendant’s task. To some extent, ACC Vant in his witness statement accepts that the CPS rationale for its decision would have been an important consideration. But, he continues, the decision not to prosecute (had he known about it) would not have been a determining factor since the need for disclosure was based solely on the imperative to protect children from the assessed risk posed by the Claimant drawn from all the relevant information available.[48]In my judgment, ACC Vant was not obliged as a matter of law to try to speak to the CPS and find out the state of their thinking as of 26th October. We do not know how advanced it then was. The aspects of the case to which DC Lumsden referred were known to the investigating officers. They nonetheless did not consider that these factors so fatally undermined the prospect of a prosecution that the papers should not even be sent to the CPS.[49]Nor do I think that it is realistic to ignore the decision of Mrs Recorder Armitage. Of course, it is right that her judgment post-dated the decision of ACC Vant, but it shows that the 2007 allegations against the Claimant were far from weak. It is not entirely clear how much of the evidence that was before the Recorder had also been available to the police. It is possible that the police did not have access to all of the material kept on the files of Social Services. However, the Recorder did have the video recorded interviews of R and J which had the police obviously did have. The Recorder found that both young people gave very impressive accounts. She regarded the local authority as bearing the burden of proof. The standard of proof was the civil one, but, taking into account the guidance from the House of Lords in Re H and others (Minors: Sexual Abuse, Standard of Proof) [1996] AC 563, the Recorder recognised that cogent evidence was necessary to show even to the civil standard that the Claimant had in effect committed multiple criminal offences. The Claimant did not give evidence in those proceedings, but she had transcripts of his interviews. She was satisfied that the allegations of sexual abuse by the Claimant against his daughter were proved. She concluded that the Claimant was a dangerous paedophile who had sexually abused three children of different ages and sex and that he presented a significant risk to children. Even if, which I do not accept, ACC Vant ought to have engaged in a more searching examination of the evidence against the Claimant, the omission would have been immaterial. The conclusion I would draw from the decision of the Recorder, is that even if he had undertaken that task, it would not have altered his decision that disclosure was appropriate.

The decision to disclose the 2007 allegations but not the 2001 allegation

[50]The Claimant notes that ACC Vant decided not to disclose the 2001 allegations because they were unsubstantiated, but, so, too, he submits were the 2007 allegations. The distinction between the two had no foundation and shows that the decision to disclose the 2007 allegations was perverse.[51]It is true that both sets of allegations were unsubstantiated in the sense that neither had by October 2007 been upheld by a court, but those in 2001 had been, in essence, made by J while those in 2007 had, in essence, been made by R. I appreciate that that distinction is not completely clearcut since in part the 2001 allegations were complaints by R and J had been involved in his sister’s decision to go to her social worker in 2007. There was nonetheless a difference between them. R was also older and spoke of being sexually assaulted over a much longer time in 2007.[52]But in the end, this complaint is really another way of framing the complaint that the 2007 allegations were too weak to justify disclosure. For the reasons given above, I reject that submission.

The test of pressing need was not met

[53]The Claimant argues that there was no pressing need for disclosure to his employer given the very limited contact that he had with children during the course of his work. In addition, DS Colling’s initial concern was that the Claimant had lied in his police interview about the nature of his work and whether he went to customers’ homes at all. However, when the tape of the interview was examined, it showed the parties to the conversation cutting across each other. Contrary to what DS Colling appeared to believe, even the transcript of the interview did not say that the Claimant only delivered to stores.[54]ACC Vant’s witness statement says that he was concerned that the Claimant entered the homes of customers and would have had access to children. That together with the Claimant’s offending history meant that he was an immediate and substantial risk to children. He was particularly concerned that the Claimant’s access to children through work could not be managed or controlled without making a proportionate disclosure to his employer. He says, “Through ill-informed employment decisions, the extent of his access to children could change and potentially increase at any time. It was my view that there was a pressing need to disclose in order that a meaningful discussion could take place with the employer to both confirm present working arrangements and to effectively manage current and future risk.” ACC Vant also took account of the fact that the local authority’s Children’s Services Department was supportive of disclosure.[55]Mr Knowles submits that I should be cautious about relying on witness statements from the Defendant which were prepared after the event. There is, he argues, a natural tendency for decision makers to reach for ex post facto rationalisations for their decisions when, at the time, these factors may not have played a part in their thinking. In particular, Mr Knowles, argues, there is nothing in the contemporary documents to suggest that the police were concerned about potential changes to the Claimant’s working practices and the scope for such alterations to increase his contact with children.[56]I agree that a degree of caution is necessary for the reasons which Mr Knowles gives. However, I do not think that ACC Vant’s evidence has these vices. The briefing paper prepared by DS Colling said in the first paragraph of the section headed ‘Reasons for disclosure’:
“This request seeks authority to disclose a previous sexually motivated conviction and two arrests for sexually motivated crime to the subject’s employer … to allow them to make a considered judgment on what capacity they should employ [the Claimant] and with what responsibilities.”
That seems to me to embrace the question of both present and future working arrangements; present and future risk. The need to have both present and future in mind was obvious. Working practices can change. The briefing paper recorded the information that DS Colling had received from the Claimant that “he does deliver to houses but that he was never left alone when doing so.” Even if this was so, ACC Vant’s comment that disclosure needed to take place so that a meaningful discussion could take place with the employer to confirm the existing working arrangements and to effectively manage current and future risk was sensible. It accorded with the passage from the briefing document which I have just quoted.[57]I have said above that I do not think that Claimant was treated unfairly. However, if I am wrong about that, I do not think that it would have made any difference to the Defendant’s decision. The comments which the Claimant would have wished to make would be to show that in fact he was rarely left alone in customers’ houses. But the briefing document recorded that very point. As ACC Vant explained, though, disclosure was thought to be necessary so as to confirm existing arrangements and to see that current and future risk was effectively managed. In view of this, further information from the Claimant as to his current working practices would not, it seems to me, have altered the Defendant’s view. This is a further (though independent) reason why I reject the Claimant’s first submission.[58]I have said above that the decision to disclose the 1987 conviction was flawed. That does not mean that it was improper for ACC Vant to take it into account in deciding whether there was a pressing need to disclose the 2007 allegation. He could. ACC Vant decided not to disclose the 2001 allegation. That does not mean he was not entitled to take it into account in making his decision regarding the 2007 allegation. He could. He was entitled to consider that these were both matters that were relevant in assessing the potential risk which the Claimant posed to young children.[59]The briefing document recognised that disclosure could lead to the Claimant losing his job. ACC Vant took this into account, but considered that disclosure was proportionate and that the public interest outweighed the Claimant’s individual rights. In Thorpe Lord Woolf said that the exercise of an honest judgment of professional police officers would go a long way to satisfying the test of reasonableness for the purposes of English administrative law and the Convention. It may be that the Convention requires a rather more exacting standard of review than Wednesbury reasonableness. Nonetheless, the Courts will still acknowledge the expertise which the police have in assessing risk and their professional judgment is still entitled to be given due weight. For similar reasons, it was relevant that the Social Services department endorsed the proposal for disclosure.[60]One of the matters which caused Ms Carver and DS Colling concern was that there had been an occasion when the Claimant was required to erect a bed at a customer’s home. The Claimant says that Ms Carver had misunderstood what he had said to her. He had been speaking of an occasion when he had been erecting a bed in his own home. This is supported by evidence from Mr S who said that the Claimant had been required to deliver a bed on one occasion but the customer had not required this to be erected. I am not sure that very much turns on this. It is not referred to by ACC Vant in his witness statement. But, in any case, I do not think that it demonstrates any error of law. DS Colling was accurately reporting what Ms Carver had told him and he was entitled to regard her as a reliable source. However, even if she had misunderstood the position on this occasion, Mr S’s evidence shows that his delivery teams are trained in bed assembly and will do it unless the customer declines the option. The Claimant may not have had to do this in the past, but, it would seem, his existing working practice allowed for the possibility that he would have to do so in the future.[61]In the LM case Dyson J. said that before a disclosure was made it was necessary to assess the level and quality of contact which the person concerned would have with children. All of the questions which Dyson J. proposed would, Mr Knowles submits, be answered favourably to the Claimant in the present case and should have led to the conclusion that there was no pressing need for disclosure. But, in my judgment, that is to overlook the fundamental feature of his job, namely that he was delivering items and having to go inside customers’ homes. That meant that the police were entitled to adopt the approach which they did and to which I have referred above.[62]ACC Vant’s decision said expressly that he considered that the disclosure was proportionate. Neither he nor the briefing document used the term “pressing need”, but in substance, that is what concerned the police. They were entitled to conclude that this test was met.

The disclosure to Mr S rather than Mr O

[63]ACC Vant authorised disclosure to Mr O who was the Regional Manager of the employer. His letter to Mr O began “I am writing to you in strictest confidence.” Mr Knowles argues that when it became apparent that Mr O was not available and he wished Mr S to receive the disclosure, the matter should have been put back to ACC Vant for a further decision.[64]In my judgment, this is an unrealistic submission. DS Colling spoke later on 26th October 2007 to Mr O who expressly said that the disclosure should be made to Mr S because he would not be available. Mr O confirmed this is in writing. Mr S’s witness statement says that he is the Customer Service Manager for the employer. He had responsibility for 42 staff including the Claimant. Mr S says that he rather than Mr O had responsibility over those staff members. There is no reason to believe that if ACC Vant had been aware of this division of responsibility and the availability of Mr S, he would not have authorised disclosure to him. Certainly there is no suggestion in the Defendant’s evidence that DS Colling exceeded his authority in disclosing to Mr S rather than Mr O.

conclusion

[65]There was in my judgment no error of law in the decision to disclose the 2007 allegation.[66]I have reconsidered whether the lawfulness of this disclosure affects my view as to the unlawfulness of the disclosure of the spent conviction. It does not. As I have said, the police were entitled to take account of the spent conviction in deciding whether to disclose the 2007 allegation. Disclosing that allegation would have alerted the employer to the need to take care in relation to the Claimant’s potential contact with children. In order to achieve that aim it was not necessary for the 1987 conviction to be disclosed as well. The Parliamentary policy behind the Rehabilitation of Offenders Act is that those whose convictions are spent are entitled to treat them as past history. None of the statutory exceptions applied in the present case. The Home Office Circular said that they should not be disclosed by the police. That was not an absolute prohibition, but the fact remains that no attention was given to it by the police. If they had done so, I cannot be confident that they would have disclosed the conviction nonetheless.[67]I will ask counsel to make written submissions as to what relief I should give in the light of this judgment.

Cited in 1 later judgment