R v Secretary of State for the Home Department

A policy is unlawful where, objectively construed for its intended audience, it authorises or approves conduct contrary to law. A policy need not eliminate every possibility of individual error or provide a comprehensive textbook account of the applicable law.

An omission may nevertheless make a policy unlawful where the issuing authority must give accurate legal guidance, or where the policy purports to be comprehensive but presents a materially misleading account. A wider test based solely on an unacceptable or statistically significant risk of unlawful decisions should not be applied.

The requirement that an interference with article 8 rights be “in accordance with the law” demands reasonable predictability and safeguards against arbitrary action. It does not require absolute certainty in every case.

The appellant, a convicted sex offender, challenged the Child Sex Offender Disclosure Scheme Guidance. The Guidance directed police forces considering disclosure of information about previous convictions to consider whether representations should first be sought from the subject.

An earlier challenge to the original Guidance had succeeded in R (X) v Secretary of State for the Home Department [2012] EWHC 2954 (Admin). The Guidance was then amended. In the present proceedings Dingemans J rejected the renewed challenge: [2014] EWHC 4106 (Admin). The Court of Appeal dismissed the appeal: [2016] EWCA Civ 597.

The central issue was the standard by which a court should review the contents of a government policy. The appellant contended that the Guidance created an unacceptable risk of decisions which breached common-law fairness or article 8 of the European Convention on Human Rights.

1. Appeal dismissed unanimously. Lord Sales and Lord Burnett delivered the joint judgment, with which Lord Reed, Lord Lloyd-Jones and Lord Briggs agreed. The Guidance neither misdirected police decision-makers nor authorised unlawful disclosure.

2. The governing common-law test was derived from Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. A policy is unlawful if, objectively construed for its intended audience, it authorises or approves conduct which conflicts with the law. The court compares the legal obligations governing the decision-maker with the conduct directed by the policy. The inquiry is not a statistical assessment of how often individual decision-makers may err.

3. A policy need not state the law comprehensively or remove every uncertainty. It may nevertheless be unlawful in three broad situations: where it positively misstates the law and induces unlawful conduct; where the issuing authority is under a duty to give accurate legal advice but fails to do so; or where the policy purports to give a complete account of the law but, through error or omission, presents a materially misleading picture.

4. The police owed a common-law duty of fairness when deciding whether to disclose information. Depending on the circumstances, fairness and article 8 could require an opportunity for the subject to make representations. The Guidance correctly required the police to consider consultation and reminded them to comply with those obligations. It did not have to prescribe the answer for every possible case.

5. The “in accordance with the law” requirement in article 8(2) requires reasonable predictability and safeguards against arbitrary or capricious decision-making. It does not require complete certainty. The Guidance supplemented, but did not replace, the common law, article 8 and section 6(1) of the Human Rights Act 1998.

6. The systemic-unfairness reasoning in R (Tabbakh) v Staffordshire and West Midlands Probation Trust [2014] EWCA Civ 827 and related cases was not a freestanding test. It had to be assimilated with the Gillick principle. The distinct real-risk standard governing impediments to access to justice, and the risk-based obligations specific to article 3, did not invalidate the Guidance.

1. United Kingdom Supreme Court: The court dismissed the appeal unanimously: [2021] UKSC 37. It upheld the result below, although its reasoning differed from that of the Court of Appeal.
2. Court of Appeal: The court dismissed the appellant’s appeal and held that the Guidance was not inherently unfair: [2016] EWCA Civ 597.
3. High Court, Administrative Court: Dingemans J held that paragraph 5.5.4 did not make the Guidance or disclosure scheme unlawful: [2014] EWHC 4106 (Admin).