Regina (L) v Commissioner of Police of the Metropolis (Secretary of State for the Home Department and another intervening); [2009] UKSC 3; [2009] WLR (D) 310

CONFIDENTIAL INFORMATION — Disclosure — Police — Enhanced criminal record certificate — Duty of chief police officer to disclose information — Whether limited to disclosing information about criminal activity — Whether breach of right to respect for private life — Police Act 1997, s 115 — Human Rights Act 1998, Sch 1, Pt I, art 8

Regina (L) v Commissioner of Police of the Metropolis (Secretary of State for the Home Department and another intervening)

[2009] UKSC 3; [2009] WLR (D) 310

SC: Lord Hope of Craighead, Deputy President, Lord Saville of Newdigate, Lord Scott of Foscote, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury: 29 October 2009

Information about a person’s convictions which was systematically collected and stored in central records and was available for many years after the convictions had receded into the past could fall within the scope of private life for the purposes of art 8(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms so that disclosure of the information could amount to an interference with the art 8 right to respect for private life. When the chief officer of police was considering for the purposes of an enhanced criminal record certificate whether to disclose information held on police records about a person who had applied for a job which involved working with children or vulnerable adults, he was required to decide whether the job applicant’s right to respect for her private life outweighed the social need for protecting children and vulnerable adults. There was no presumption that disclosure should be made unless there was good reason for not doing so.

The Supreme Court so held, dismissing an appeal by the claimant, L, from a decision of the Court of Appeal (Longmore, Smith and Moore-Bick LJJ) ([2008] 1 WLR 681) on 1 March 2007 dismissing the claimant’s appeal from a refusal by Munby J on 17 March 2006 of the claimant’s claim for judicial review of a decision of the Commissioner of Police of the Metropolis to disclose certain information about the claimant on an enhanced criminal record certificate under section 115 of the Police Act 1997.

At a child protection conference in January 2002, social workers expressed the view that the claimant’s son, X, aged 12, was at risk within his family because the claimant had very little control of his behaviour and knowledge of his whereabouts and that the claimant was not prepared to work with social services. X had also been excluded from school for having assaulted a teacher. X was placed on the child protection register under the category of neglect. In 2003 he was convicted of robbery and sentenced to detention at a young offenders centre. In 2004 the claimant was employed by an employment agency which provided staff to schools. She worked as a midday assistance at a secondary school supervising children during lunch time. In accordance with s 115 of the 1997 Act the agency applied for an enhanced criminal record certificate. The certificate was issued giving information about X having been placed on the child protection register for neglect, of his criminal activities and conviction and of the claimant’s refusal to co-operate with social services. The agency informed the claimant that her services were no longer required.

LORD HOPE said that information about a person’s convictions which was collected and stored in central records could fall within the scope of private life within the meaning of art 8(1) of the Human Rights Convention, with the result that it would interfere with that person’s private life when it was released. It was in one sense public information because convictions took place in public. But the systematic storing of information in central records meant that it was available for disclosure under the 1997 Act when everyone other than the person concerned was likely to have forgotten about it. As it receded into the past it became part of a person’s private life which must be respected. X’s conviction could be seen as public information because his trial was held in public. But the fact that the claimant was his mother was private information. So too was the information about the proceedings in which in which it was alleged that the claimant had failed to exercise the required degree of care and supervision over X and that she refused to co-operate with social services. The child protection conference did not take place in public nor were the minutes open to public scrutiny. Those were aspects of the claimant’s private life which had to be respected when the decision was taken as to whether the details which were stored in police files should be released. Therefore art 8(1) was engaged. The question was whether the interference with the claimant’s private life could be justified. That issue was essentially one of proportionality. On the one hand there was the pressing social need that children and vulnerable adults should be protected. On the other was the claimant’s right to respect for her private life. The correct approach, as in other cases where competing Convention rights were in issue, was that neither consideration had precedence over the other. It should not be assumed that the presumption was for disclosure unless there was good reason for not doing so. The information disclosed bore directly on whether the claimant could safely be entrusted with the job of supervising children. It was for the employer to decide what to make of the information. There was no escape from the conclusion that in the claimant’s case the risk to children must outweigh the prejudicial effect that disclosure would give rise to.

Lord Saville agreed.

Lord Scott agreed in the result and said that art 8 was not engaged.

Lord Brown and Lord Neuberger delivered judgments agreeing with Lord Hope.

Appearances: Stephen Cragg and Charlotte Kilroy (instructed by John Ford Solicitors) for the claimant; Fiona Barton and Matthew Holdcroft (instructed by Director of Legal Services, Metropolitan Police Service) for the commissioner; James Eadie QC and Jason Coppel (instructed by Treasury Solicitor) for the Home Secretary, intervening; Timothy Pitt-Payne (instructed by Solicitor, Liberty) for Liberty, intervening by written submissions.

Reported by: Shirani Herbert, barrister