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Thursday, 19 May 2011 16:07

A Court of Appeal ruling that disclosure of a criminal conviction was unlawful contains some vital lessons for local authorities, writes Peter Wake.

In the recent case of H & L v A City Council [2011] the Court of Appeal ruled that a local authority’s decision to disclose details of an individual’s criminal conviction for a child sex offence was unlawful and in breach of Article 8 of the European Convention on Human Rights (the right to respect for private and family life).

The decision comes just months after the case of Clift v Slough BC [2010] in which the local authority’s notification of a violent warning marker against someone’s name could only be justified to a discrete group of recipients and, since it went wider, the decision was both unlawful and defamatory. The Supreme Court has recently refused Slough’s application for permission to appeal the decision.

In both cases the intention of the local authority was laudable. In H & L the disclosure was seen as fulfilling the local authority’s obligation to safeguard children. In Clift the intention was to meet the authority’s duty of care to its staff. Nonetheless, the decision-making process ultimately did not survive an Article 8 analysis in either case and the result for both local authorities was time-consuming and undoubtedly expensive litigation.

Can lessons be learned? They can and they must.

For a better understanding of the judicial reasoning in H & L it is necessary to look a little more closely at the facts. H and L were married, both severely disabled and received weekly direct payments which they used to fund care assistants in their home. They were also active in the disability movement. They ran a company which had contracts with universities and other public bodies. H also belonged to a number of representative bodies dealing with disability issues. In 1993 H was convicted of a serious sexual assault on a seven year old boy. He denied the charge (and continued to do so) but was nonetheless convicted. He also had a conviction for failing to disclose the 1993 conviction.

In 2009 the local authority became aware that H faced trial for another child sex offence (he was ultimately found not guilty). Following a meeting which H had neither been notified of nor invited to, the local authority decided to disclose the previous conviction and forthcoming trial to all H’s known contacts. This decision was taken on the basis that H posed a risk to children. It then notified H and L that it would decide on a case-by-case basis what further disclosures it would make to any organisations that H and L became involved with in the future.

H and L issued judicial review proceedings complaining that the local authority's disclosure of the previous conviction and its approach to future disclosures were unlawful, being in breach of their rights both at common law and under Article 8. The judge at first instance found for the local authority. The claimants successfully appealed.

In a robust judgment the Court of Appeal confirmed that it should no longer be assumed in cases of this type that the presumption is for disclosure. The issue is essentially one of proportionality and striking the correct balance between competing interests. Article 8 has an important procedural component that includes a duty to consult with the person whose information is to be disclosed and to give them an opportunity to make representations before the information is disclosed. This is essential if the process is to be fair and proportionate.

There was an understandable reason for the disclosure. The requisite “pressing need” was to protect children. However, the local authority did not engage with the critically important fact that H and L did not work with children. The decision to disclose to all the organisations H was involved in was a ‘blanket’ approach that was not fair, balanced or proportionate. The decision was also procedurally unlawful in that H and L were not consulted and the process “fell far short of what was required both by the common law and by Article 8”.

The issue of judges upholding the human rights of criminals, and in particular protecting the identity of sex offenders is obviously a controversial and emotive one. Other countries have a far more relaxed approach to disclosure. In the United States for example information about sex offenders is often publicly available.

However, the Human Rights Act 1998 incorporates into our domestic law the rights and liberties enshrined in the European Convention. Criminality is no bar to a Convention claim and, as Lord Justice Sedley recently held, to make it so would serve to “create a gateway to human rights which only the virtuous may enter” (Hassan-Daniel v Revenue and Customs Commissioner [2010]).

Whatever one feels about the right and wrongs of these judgments, the fact is that they are carefully considered and binding decisions from the appeal court. In appropriate circumstances Article 8 encompasses a negative obligation not to interfere with rights, a positive obligation to take steps to protect rights and the procedural safeguards outlined above. Given the activities of public bodies Article 8 is regularly engaged when decisions are being made and it must be paid its due regard.

Whenever a local authority is considering publishing sensitive material, internally or externally, there should be both a process of consultation and an assessment of who should receive it. An important part of the assessment process will be the consideration of the people the individual concerned is likely to come into contact with. Of course it will ultimately be for the local authority to justify its decision in the event that is challenged whether this challenge is through a complaints process, judicial review or by way of a civil claim for damages. In this regard each case will fall to be determined on its own facts. It follows that it is essential to document the decision-making process and the balancing exercise that has been undertaken so that it can be effectively evidenced at a later date if necessary.

Peter Wake is a partner in the Local Government Team of Weightmans LLP. He can be contacted by email at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

See also: Local authority fails in appeal over defamation claim

 

 

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