Courting Disclosure under Section 32

The Institute of Chartered Accountants (“ICA”) has a policy of seeking the Certificate of Conviction of any of its members who have been found guilty of an offence which may relate to their appropriateness to act as a chartered accountant. However, the Courts Service (“HMCTS”) refused to confirm or deny holding an individual’s Certificate under section 32 FOIA because it was a document created by the court for the purpose of proceedings. A Certificate of Conviction is currently governed by section 73 of the Police and Criminal Evidence Act 1984, but has existed since the mid-nineteenth century. It acts as conclusive proof of conviction.

In ICAEW v IC & Ministry of Justice (EA/2011/0148, judgment of 8 December 2011) the Tribunal upheld the Commissioner’s decision notice that the HMCTS was not required to confirm or deny holding the information. The Tribunal followed the decision of the Court of Appeal in Kennedy v IC [2011] EWCA Civ 367 that the protection of section 32 was ongoing after the conclusion of proceedings, and that it could not logically matter whether the court created the document before or after the verdict because it was for the purpose of the proceedings. The ICA’s attempt to construe “proceedings” as excluding the issuing of a Certificate of Conviction was said to be “narrow and artificial” by the Tribunal: at [42].

The Tribunal also reiterated the section 32 jurisprudence that the purpose of the exemption is to ensure that the court can regulate access to its own files. Access to court records can be sought under the Civil Procedure Rules, but the Criminal Procedure Rules do not provide for access to a Certificate and the Tribunal considered this to be very relevant. A Certificate is not itself publicly accessible, even if the information it contains may be reported publicy elsewhere. (Section 32 being an absolute exemption, this fact provided the ICA with no assistance.)

There is not a large amount of case law on the application of section 32 – and my involvement on behalf of the Commissioner precludes analysis of the Tribunal’s judgment – but the ICAEW case does provide some helpful reiteration of the purpose and scope of the absolute exemption, stressing that access to court records is very much a matter for that court and is not to be circumvented by FOIA.

Christopher Knight