Privacy and paedophilia: who should get to know?

19 April 2011 by

H and L v A City Council [2011] 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.

The facts

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.

The complaint

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 [2001] 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.

The procedure

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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more on Article 8:


  1. Susan Horan says:

    What “right to privacy” do the children have? An American mother, who’s concerned for the children, who have no abilities to protect themselves, with out prior knowledge, of an offender living on their street. We are not allowed to taunt or tease nor harass, sex offenders but we are given the oppportunity to be informed. They lose the right to privacy when they commit such a crime.

  2. Stephen says:

    This is a very good decision. This is not the first time that Justice Munby has called Local Authorities to account. He is a great protector of the rights of children in care and is not afraid to find against Local Authority Social Services’s departments when they are negligent of their statutory duties.
    In this case, Justice Munby saw through the pretext that disclosure was justified for the protection of children from abuse.

    Justice Munby is a truly independent judge who sees through the “bull***t” put forward by those authorities who arrogate powers to themselves – powers that they do not in fact possess. This is a judge who examines the issues in depth, rather than just taking a common sense and possibly populist stance.

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: