NEW COURT OF APPEAL JUDGMENT ON DISCLOSURE OF PAST CONVICTIONS

Posted on | by Robin Hopkins

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.

A BAD THING?

Posted on | by Timothy Pitt-Payne KC

The website of the Information Tribunal (or FTT Information Rights, to be precise) is an invaluable source of information.  The lists of current cases make it possible to track the progress of potential test cases, and also give information about hearing dates and venues – essential for any members of the Press or public wishing to attend.  There is all sorts of useful information – e.g. about the Tribunal judiciary.  Perhaps most important of all, there is a searchable and complete collection of Tribunal decisions, together with other information law cases. 

Today the site displays an ominous notice.  As a result of the merger of the Court Service and the Tribunal Service, the site will be archived with effect from 1st April.  Information, forms, and details about services, will be available from www.justice.gov.uk and other sites.  But it is wholly unclear whether the same level of information will be made available as at present; in particular, it is not clear whether tribunal decisions will still be published online.  Although FTT and Upper Tribunal decisons are also available on Bailii, the Information Tribunal website is a much better tool for anyone specifically interested in Information Law.  Let’s hope that all that is happening is a change of web address rather than a change in format or content.           

 

NO PREJUDICIAL INTEREST

Posted on | by James Goudie KC

James Goudie QC, instructed by John Bridger of Preston Redman, appeared for Councillor John Beesley, the Deputy Leader of Bournemouth Borough Council, before the First-Tier Tribunal (Local Government Standards).  The Tribunal (Case No: LGS/2010/0533) found that Cllr Beesley had not breached the Code of Conduct.  He had declared personal interests.  They were not also prejudicial interests.  Tribunal Judge Chris Hughes OBE accepted the submission that:

             “The test to be applied under the Code of Conduct is in essence the same as the test for apparent bias.  The member of the public viewing these circumstances would demonstrate two key characteristics – adopting a balanced approach and while not being complacent would not be unduly sensitive or suspicious (Gillies v Secretary of State for Work and Pensions [2006] 1WLR 781).  The matter must be considered from the point of view of an observer who is both informed and fair minded.  The question to be addressed by the member of the public with these characteristics is whether there is a likelihood in other words a real possibility (Porter v Magill [2002] 2AC 357) of bias.”

PERSONAL DATA

Posted on | by James Goudie KC

Two decisions on 21 March 2011 of differently constituted First-Tier Tribunals, Johnston v I Co and Brecon Beacons National Park Authority, EA/2010/0130/0131, and Gilbert v I Co and Local Government Ombudsman, EA/2010/0190, both considered the exemption from disclosure constituted by FoIA s40.  In each case the FTT found that individuals were the focus of the information requested and that it constituted personal data.  In each case the FTT considered whether disclosure would breach the first data protection principle under the DPA, in particular whether disclosure would be unfair, whether the disclosure was necessary to promote legitimate interests, and whether disclosure would cause unwarranted interference with the interests of the individuals whose data was in issue, especially in the case of a junior officer and where any legitimate aims of the requester could be achieved by a means that interfered less with the privacy of the individual officer, whilst retaining accountability.

James Goudie QC

CHANNEL 4 APPEAL: FOR FOIA PURPOSES, CONTRACTS ARE SEVERABLE

Posted on | by Robin Hopkins

Channel 4 v IC and BSkyB (EA/2010/0134) saw the Tribunal consider a short, but potentially very significant point concerning the application of s. 43(2) FOIA, the exemption for commercial confidentiality, to long and complex contracts.

Channel 4 argued that where the substantial parts of a long and detailed contract are exempt under s. 43(2), then the whole contract is exempt. In other words, the public authority is not required to analyse the contract on a clause-by-clause basis. The Tribunal rejected all of Channel 4’s arguments in support of this position – including arguments based on the construction of s. 43(2), a comparison with the EIR, principles of contract, Veolia, ECHR rights and the cost and expense involved. The established approach, which requires clause-by-clause consideration of the application of exemptions, therefore remains intact.