Sex offence disclosure breaches human rights
‘H’ and ‘L’, a severely disabled married couple, received weekly payments from their local authority for adult social care which were used to pay for personal care assistants.
None of these assistants had children or would bring H and L into contact with children.The couple had been active in the disability movement for many years and ran a company which sought and obtained contracts from universities and other bodies. In 1993, H was convicted of indecent assault on a seven-year-old boy, and although he denied the charge he was found guilty and sentenced to two years imprisonment. He maintains he was a victim of a miscarriage of justice.
Behind closed doors
Their city council received a letter in March 2009 from another local authority drawing attention to H's conviction and saying that he was facing trial for a similar offence (of which he was later acquitted). Without informing H, it held a strategy meeting in June that year, chaired by the service manager of the council’s safeguarding children service. It was decided that H’s conviction and forthcoming trial would be communicated to various organisations he was in contact with; that the university and primary care trust would cease employing or hiring him or his company; and he would be asked to stand down from all bodies and committees with immediate effect.
The city council also required H and L to provide their personal assistants with letters requiring them to 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 so that the city council would have an audit trail of all those employed by the couple. Further disclosures to other organisations or individuals coming into contact with H and L through their work were also a possibility.
An unlawful intrusion?
H and L lost business following the initial disclosures and H had not sought or done any work which would bring him deliberately into contact with children following his 1993 conviction.
They brought judicial review proceedings, asking the administrative court to decide on whether the city council had 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).
The administrative court judge found against H and L on the first two arguments and for them on the second two. The couple appealed the first two points, while the city council cross-appealed the second two. The Court of Appeal was highly critical of the way in which the city council had made the first disclosures. According to Lord Justice Mumby, it had made the decision at a meeting which H and L had no knowledge of “and 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”.
Damage of disclosure
The appeal from H and L was therefore allowed and the cross-appeal from the city council dismissed. The critical point was that the offender did not work with children and the local authority’s blanket policy, which was not fair, balanced or proportionate was in breach of H’s human rights.
Isabel McArdle of 1 Crown Office Row comments: “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 rightto privacy.”
(1)H (2) L v A City Council, [2011] EWCA 203 14 April 2011
www.bailii.org/ew/cases/EWCA/Civ/2011/403.html
Author: Clarissa Dann
Clarissa Dann was the editor of Caritas as well as an HR and management online service,he People Bulletin until July 2011.
She is now the editor of the specialist trade finance magazine, Trade and Forfaiting Review which can be viewed at www.tfreview.com but does write on charity finance and investment from time to time.
Clarissa has a background in legal and professional publishing, as well as business journalism and holds an MBA from
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