KJO v XIM

A spent conviction is not thereby confidential. The Rehabilitation of Offenders Act 1974 confers defined privileges, but does not generally create a right to prevent publication. Extending those protections through privacy law requires clear authority. An injunction restraining publication cannot ordinarily be granted where the conviction is true and malice remains a matter for trial. Claims concerning publications in Hong Kong were governed, on the issues raised, by Hong Kong law and were unsuitable for summary judgment. A data-protection claim concerning processing in England was governed by English law, but unresolved issues also precluded summary judgment.

The claimant, convicted of forgery in 1992, sued his maternal uncle over communications to employers, prospective employers and public authorities concerning that conviction. It became spent in June 2002. The claimant sought injunctions based on privacy and data protection. The defendant sought security for costs and strike-out of a time-barred libel claim.

The court considered whether the spent-conviction regime created confidentiality or supported prior restraint, which law governed publications and prospective communications in Hong Kong, whether summary judgment was available, and whether the pleaded 2005 libel claim should be struck out.

1. The Rehabilitation of Offenders Act 1974 gives rehabilitated persons carefully defined privileges. Sections 4, 7, 8 and 9 do not generally make a spent conviction confidential or confer a right to prevent its communication. Parliament could have provided expressly for an injunction or wider confidentiality, but did not.

2. The policy of rehabilitation may be relevant to whether there is a reasonable expectation of privacy, but extending the statutory remedies requires clear authority. Where the statutory regime is the sole context, the court should focus on Parliament’s wording and any relevant Strasbourg guidance.

3. An injunction before trial is exceptional. Since the conviction was true, justification could not be shown on the present material to be bound to fail. Any allegation that publication was malicious, including publication with a dominant purpose of injuring reputation despite knowledge of the truth, raised an evidential issue unsuitable for summary determination.

4. Claims concerning past defamatory publications in Hong Kong, and proposed restraints on future Hong Kong publications, were governed by Hong Kong law, subject to issues for the lex fori such as limitation. An English court should generally not restrain communications in Hong Kong which would not infringe Hong Kong law. The same conclusion was likely for privacy or confidence infringements occurring through publication in Hong Kong.

5. The data-protection claim was confined to processing in England by a data controller established there and was not displaced by the proposed Hong Kong choice-of-law analysis. Nevertheless, issues remained as to processing, domestic purposes, fairness, accuracy, damage, causation and remedy. Summary judgment was refused.

6. The 2005 libel claim was time-barred. There was no evidential basis to disapply the primary limitation period under section 32A of the Limitation Act 1980, so paragraph 16 was struck out. Security for costs was ordered in the sum of £20,000. The claimant was granted anonymity, subject to review.