W v Chief Constable of Northumbria

Police disclosure of information held under common-law powers must satisfy administrative-law principles and Article 8 of the European Convention on Human Rights. Disclosure should occur only where there is a pressing need, assessed on the particular facts, and the police should obtain as much relevant information as reasonably practicable. Fairness may require an opportunity to comment, but its content depends on the circumstances and the public-protection priority remains decisive.

A spent conviction should not ordinarily be disclosed contrary to the Rehabilitation of Offenders Act 1974 and applicable guidance. A decision-maker who fails to consider the spent status of a conviction and the guidance governing disclosure acts unlawfully, even where the conviction may properly be considered when assessing the risk supporting disclosure of other information.

W sought judicial review of Northumbria Police’s decision to disclose to his employer his 1987 conviction for sexual assault and his 2007 arrest concerning allegations of sexual assaults on his daughter. The conviction was spent under the Rehabilitation of Offenders Act 1974, and the employer’s work was not within the statutory exceptions.

The police disclosed both matters in October 2007. W challenged the decision on grounds including failure to investigate his work-related contact with children, procedural unfairness, failure to assess the strength of the 2007 allegations, inconsistency in disclosing the 2007 but not the 2001 allegations, absence of a pressing need, and disclosure to a different manager from the one originally identified. The central issues were whether either disclosure was unlawful and what relief should follow.

1. Spent conviction. The disclosure of the 1987 conviction was unlawful. The conviction had become spent under sections 5(5) and 4(3)(b) of the Rehabilitation of Offenders Act 1974, and none of the statutory exceptions applied. The decision-maker failed to consider the Act or paragraph 14 of Home Office Circular HOC 047/2003. The Circular was not legally equivalent to legislation, but, applying R (Khatun) v Newham LBC [2005] QB 37, it had to be taken into account and clear reasons had to be given for departing from it.
2. 2007 disclosure. The disclosure of the 2007 allegation was lawful. Police disclosure under common-law powers to prevent crime is constrained by administrative-law principles and Article 8. The governing approach in R v Chief Constable of the North Wales Police, ex parte Thorpe [1999] QB 396 required a pressing need, consideration of the particular facts, and as much reasonably practicable information as possible.
3. Fairness was for the court to determine; it was insufficient merely that the police’s view was Wednesbury reasonable. Nevertheless, W had been given an opportunity to explain his work, and his refusal to answer questions meant that the police were not unfair in failing to obtain the information by other routes. The police could take account of present and future working arrangements, the possible risk to children, the employer’s ability to manage that risk, and the professional assessment of the police and social services.
4. The later decision not to prosecute did not require further inquiry by the police, and the distinction between the 2001 and 2007 allegations was rational. The police were entitled to treat the 2007 allegations as sufficiently serious and reliable for the different purpose of risk assessment. They were also entitled to consider the spent conviction and the 2001 allegations when assessing whether disclosure of the 2007 allegation was necessary, although the spent conviction itself should not have been disclosed.
5. Disclosure to Mr S rather than Mr O did not invalidate the decision. Mr O had authorised that alternative and Mr S had responsibility for the relevant staff. The court invited written submissions on relief.

This was a first-instance judicial review in the Administrative Court. The judgment does not state any appellate history.