The Court of Appeal has today given judgment in H and L v A City Council [2011] EWCA Civ 403. This is an important decision on Article 8 ECHR in the context of the disclosure of information on past convictions.

The case involved a seriously disabled man, H, and his partner L, who was also seriously disabled. They were active in the disability movement, both as campaigners and in running a company that provided consulting services on disability issues to public authorities. They employed personal assistants in their home, paid for with funds from the local authority. H had been convicted of a serious sexual offence against a child in 1993. His home local authority was aware of this, but took no action until 2009, when it was contacted by a second local authority where H ran a disability charity. It transpired that H had been committed for trial on another charge of an offence against a child, though he was subsequently acquitted. It also came to light that H had a previous conviction for failing to disclose his unspent convictions, and that he was being referred to the Independent Safeguarding Authority.

H’s local authority reacted by convening a number of strategy meetings involving the relevant professionals, without informing H. It decided to begin paying H and L’s care assistants directly (for audit trail reasons) rather than by payments to H and L themselves. As regards disclosure, it took three decisions: (i) it disclosed to 9 organisations with which H was involved an outline of its concerns and of all the facts giving rise to those concerns, (ii) it told H and L that it reserved the right in future to contact any other organizations or persons and express these same concerns if it felt the need arose, (iii) it informed the personal assistants of its concerns and the underlying facts.

H and L brought judicial review and Article 8 proceedings. At first instance (see the Panopticon post here), HHJ Langan QC found for the local authority on the lawfulness of disclosures (i) and (ii), but against it on disclosure (iii). He also found that the new payment regime imposed by the local authority was unlawful.

The Court of Appeal found that all of the disclosure decisions were unlawful: the crucial factor was that none of H’s current involvements brought him into contact with children. Therefore, the local authority’s blanket approach to all 9 organisations was unfair and disproportionate. Its decisions had also been procedurally unfair, in that H had not been allowed to make any representations. The new payment regime was motivated by the disclosure decisions, and therefore also unlawful.