HA v University of Wolverhampton & Ors (Rev 1)

A university providing an accredited professional course may require applicants to disclose spent and unfiltered convictions and obtain an enhanced criminal record certificate where the course involves patient contact and is a necessary route to professional registration. The requirement must have a statutory basis and comply with Article 8, assessed by reference to the individual case. Recent multiple convictions involving violence or dishonesty may have a rational connection with patient safety and may lawfully require disclosure.

A fitness-to-practise panel must consider mitigation, aggravating factors and available sanctions in a reasoned and proportionate way. A decision to impose exclusion is unlawful where the panel ignores material mitigation or makes an irrational finding that the applicant repeatedly failed to disclose convictions.

HA applied for and began an accredited MPharm course at the University of Wolverhampton. He had two convictions, for robbery and assault occasioning actual bodily harm, committed when he was 14 and spent by the time of his application. He answered negatively to a question about convictions that would not be filtered by the DBS.

The convictions were later disclosed. A University Fitness to Practise Panel concluded that HA’s fitness to practise was impaired and permanently excluded him from the course. The Academic Registrar upheld that decision and the Office of the Independent Adjudicator rejected his complaint.

HA sought judicial review, challenging the University’s entitlement to require disclosure and an enhanced criminal record check, the wording of the application question, the compatibility of the requirements with Articles 8 and 2 of Protocol 1, and the proportionality and legality of his exclusion.

1. Disclosure and enhanced checks. The University was entitled to ask about spent and unfiltered convictions under article 3(1) of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. An accredited MPharm course is a necessary step towards registration as a pharmacist. The University therefore assessed applicants’ suitability for admission to the pharmacy profession and acted as a gatekeeper, rather than as the Council’s delegate. Patient-facing placements involved regulated activities, including health care provided under the direction or supervision of a health care professional. The University was also entitled to require an enhanced criminal record certificate under the Police Act 1997 and the Police Act 1997 (Criminal Records) Regulations 2002.
2. Wording of the question. Article 3(1) did not require the Exceptions Order to be named expressly. It was sufficient to tell the applicant that the course was exempt from the Rehabilitation of Offenders Act 1974 and that spent convictions had to be disclosed. The question therefore complied with the statutory caveat.
3. Article 8. Requiring disclosure interfered with HA’s private life, but pursued public safety and protection of the rights of others. The proportionality inquiry was individual and fact-sensitive. HA’s recent multiple convictions for violence and dishonesty were rationally connected to patient safety, were not arbitrary, and fell within the lawful filtering scheme. Disclosure was necessary in a democratic society and struck a fair balance. Article 2 of Protocol 1 was not engaged because HA had not been excluded from tertiary education generally.
4. Exclusion. The decision to exclude HA was unlawful. The panel failed to consider material mitigation, including his age when offending, his attempt to disclose the convictions after the induction lecture, his remorse and his subsequent good conduct. It also failed to consider sanctions in ascending order of seriousness, as required by proportionality and the relevant guidance. Further, it irrationally treated HA as having failed to disclose his convictions on more than one occasion, although the evidence showed that he had approached Mr Gay and had not been given an opportunity to explain fully.
5. The decision to exclude HA from the MPharm course was quashed.

This was a first-instance judicial review. The decision of the University Fitness to Practise Panel, upheld by the Academic Registrar, was quashed.