H and L v A City Council  EWCA Civ 403 – Read judgment
In a decision bound to stir up strong feelings, the Court of Appeal has found that disclosures made by a local authority to other organisations of a person’s conviction for a sex offence against a child and future disclosures proposed by the authority were unlawful. The Court considered that the “blanket” approach to disclosure, even though the person with the conviction and his partner did not work directly with children, was not proportionate to the risk posed. Further, making disclosures without first giving the persons concerned the opportunity to make representations on the matter was unfair.
H and L were partners. They were both disabled and required personal assistants to help with their daily activities. They were also both active in the disability movement, being involved in representative and consultative bodies and running a company which sought contracts with universities and other public bodies.
H was convicted in 1993 of indecent assault on a child. He always denied the offence. He also had a conviction for failure to disclose his 1993 conviction.
In early 2009, the City Council was notified by another local authority of his previous conviction and also that he was facing trial for a similar offence against a child. As a consequence, the City Council held a meeting in April 2009 where it was decided to disclose to all H’s known contacts details of his previous convictions and upcoming trial. 9 organisations were contacted.
The City Council met with H and L in May 2009 to discuss future disclosures, and did not notify H and L that disclosures had already taken place but shortly after, H and L discovered that disclosures had already taken place.
The City Council also required H and L to provide their personal assistants with letters requiring them not allow H to have unsupervised contact with children or take their children to work with them. Payments to such assistants were also proposed to be made directly, rather than through H and L as happened at the time, which would allow the City Council to have an audit trail of all those employed by H and L. Further disclosures to other organisations or individuals coming into contact with H and L through their work were also a possibility.
H and L lost business following the initial disclosures. H was found not guilty of the offence he was charged with.
H had not sought or done any work which would bring him deliberately into contact with children following his 1993 conviction.
H and L brought judicial review proceedings, asking the Administrative Court to decide on whether the City Council acted lawfully. They argued that:
a) The disclosures following the decision in April 2009 were unlawful, breaching their common law and Article 8 rights. Article 8 provides the right to respect for private and family life;
b) Future disclosures were unlawful for the same reasons;
c) The proposed regime relating to H and L’s personal assistants was unlawful;
d) Making direct payments to the personal assistants was unlawful and ultra vires (meaning outside the powers of the authority).
His Honour Judge Langan QC, in the Administrative Court, found against H and L on the first two arguments and for them on the second two. They appealed the first two points, while the City Council cross-appealed the second two.
Previous case law established that for a local authority to make disclosures of this nature, there had to be a “pressing need”: disclosure must be proportionate. The same test applied at common law and in human rights cases. However, as human rights were involved, the standard of review would be that of “anxious scrutiny”, described earlier in R (Daly) Secretary of State for the Home Department  UKHL 26. This requires the court to assess the balance the decision maker has struck and have regard to the relative weight accorded to the interests and considerations.
Article 8 was engaged: there was interference with H and L’s private lives. This was important, because it meant they were entitled to certain procedural safeguards and, if the City Council’s conduct under Article 8 was unlawful, they would be entitled to a remedy in damages.
Lord Justice Munby, giving the leading judgment, was highly critical of the way in which the City Council had made the first disclosures. It had made the decision at a meeting which H and L had no knowledge of,
…then implemented its decision behind H’s back and without giving either H or L any opportunity to have their say before tardily confronting them with a fait accompli.(Paragraph 49)
This was not compliant with either common law requirements or Article 8.
A pressing need?
The City Council argued that there was a pressing need to make the disclosures in order to protect children. The Court was not persuaded that there was such a need: neither H nor L worked with children. A “blanket” approach had been adopted, with all H’s known contacts being made aware of his history. This was neither fair nor proportionate.
As for future disclosures, there was no bright line test, each situation had to be considered on its own facts to decide whether there was a pressing need to disclose. In relation to these disclosures, the City Council will have to consult H and L before it makes a disclosure.
H and L’s personal assistants
The proposal to require H and L to give all personal assistants a letter prohibiting them from bringing their children to work with them or allowing H to have unsupervised contact with children was also unlawful, not least because the terms of the letter would raise suspicions in the minds of the personal assistants which may be more grave than H’s actual criminal history and totally unjustified in the case of L. As the proposal to pay the assistants directly was parasitic upon the proposal to require H and L to give assistants the letter in question, this also fell away.
Consequently, the appeal was allowed on the first two points and the cross-appeal was dismissed on the second two.
Protecting the identities of sex offenders will always be a controversial question. Some jurisdictions are much less restrictive in their approach to the disclosure of the details of those with convictions for sex crimes against children, the United States being an obvious example. There, “Megan’s Law” permits States to make information about sex offenders publicly available. Commonly, the offenders’ names, addresses, photographs and details of their convictions are published on publicly accessible websites.
In this jurisdiction there has been much public pressure for similar disclosure to be available, to give parents greater knowledge of whether particular people are likely to pose a threat to their children. Since earlier this month, all police forces in England and Wales have been operating the Child Sex Offender Disclosure Scheme, known as “Sarah’s Law” after eight-year-old Sarah Payne, who was murdered in 2000 by a person with a history of child sex offences. This gives parents the opportunity of checking if people in contact with their children have previous convictions for sex offences against minors. There are many people however who believe the scheme is not going far enough to protect children.
Obvious as the need for some disclosures is, the risks inherent in disclosing this sort of information include vigilante attacks and alienation of offenders, pushing them out of mainstream society. Article 8 recognises a right for privacy itself to be respected, even if these extreme potential consequences do not follow.
Given the risks associated with both disclosure and non-disclosure, as well as the heated arguments on both sides of the debate, this decision of the Court of Appeal appears balanced and appropriate, making disclosure of information which can have extremely negative effects unlawful, unless children are in contact with the offender, when the risks to children outweigh the right to privacy.
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