AB & Anor, R (on the application of) v North Wales Police Area [1998] EWCA Civ 486 (18 March 1998)

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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> AB & Anor, R (on the application of) v North Wales Police Area [1998] EWCA Civ 486 (18 March 1998) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1998/486.html Cite as: [1998] Fam Law 529, [1998] 3 WLR 57, [1998] 3 All ER 310, [1999] QB 396, [1998] 2 FLR 571, [1998] 3 FCR 371, [1998] EWCA Civ 486

This appeal is concerned with the problem which arises when offenders who have committed serious sexual offences against children are released from prison after serving long prison sentences. When this happens, the public are naturally concerned that the offenders should not have the opportunity to commit again offences of the same nature. The police and other agencies who are involved in protecting children from offending of this nature obviously share this concern. Regrettably recent experience has confirmed that while some former sexual offenders’ behaviour has changed after serving their sentence, other offenders retain the propensity to repeat their offending and, if given the opportunity to do so, commit further serious offences of the same or a similar nature. The police and the other agencies therefore have the very heavy responsibility of deciding on the steps which it is appropriate to take to provide protection for children who could in this way be at risk from former offenders.

In reaching their decisions the police and the other agencies cannot ignore the position of the offender. The offender has served his sentence and he may be determined, so far as possible, to re-establish himself as a law abiding member of society. His ability to do this will be made far more difficult if he is subject to the attention of the media or harassment by members of the community, who because of his past, do not want him to live amongst them. Sometimes a former sex offender can be at risk of physical attack from those who are outraged by his or her previous offending.

In addition to having to take into account the interests of the offender, it is also necessary to take into account the danger of driving those who have paedophile tendencies underground. When their whereabouts are known, it is simpler for those responsible to ensure that they are living and working in conditions which reduce the risk of repetition of their previous conduct. Most importantly steps may be able to be taken to ensure that they are subject to suitable supervision, that they receive appropriate treatment and support and are suitably housed. If, instead the former offender is driven underground by the conduct of the media or members of the community in which he is living, this may make it impossible to take steps which would otherwise be available to protect children living in the area.

The tension which is the result of these conflicting considerations makes the position of the police one of extreme difficulty and sensitivity. They can be criticised for taking no or inadequate action to protect children at risk. Where they take action they can be open to criticism, either because of its effect on the ability of the offender to live a normal life or because it causes the offender to conceal his whereabouts so that children are more at risk than they would have been if this had not happened.

The conflict between these competing interests was fully considered in the judgments of Lord Bingham CJ and Buxton J in the decision of the Divisional Court of 10 July 1997 which is the subject of this appeal. The judgments dismissed applications for judicial review of the decision of the police to reveal the identity of two former sex offenders. Because of the importance of the issues at stake they gave leave to appeal. On the appeal the arguments which the appellants advanced did not substantially challenge the reasons which were given in both judgments of the Divisional Court for dismissing the application for judicial review. Instead, the argument has primarily revolved around issues which were not canvassed before the Divisional Court. The parties are seeking the opinion of this court on the new issues against the background of fresh policy guidance which has been published by the Home Office since the hearing before the Divisional Court. Before dealing with those issues it is necessary to refer to the facts which gave rise to the application before the Divisional Court. It is possible to do this succinctly because those facts are already fully and clearly set out in the judgment of the Lord Chief Justice which is now reported in [1997] 3 WLR 724.

The applicants, who we have agreed until the conclusion of this appeal should be known as AB and his wife CD so as to protect their identify, (the same device was used in the Divisional Court) were released from their respective prisons on 17 July 1996. They had been each serving a sentence totalling 11 years imprisonment. The sentences had been imposed in the case of AB for one offence of rape, one offence of indecent assault on a female child and three counts of gross indecency. CD had pleaded guilty to two offences of aiding and abetting rape, one offence of indecent assault on a female child and three offences of gross indecency with a child. The victims were the children of either AB or CD, apart from the victim of the rape offences who was a 17 year old girlfriend of one of the children. On their release a flat at a convenient location was available for them. They had to leave that accommodation for fear of reprisals from members of the local community. This was after articles about them had appeared in their local newspaper. They then slept for a time in their motor car. This was followed by bed and breakfast accommodation. They then moved to another flat where they voluntarily made contact with the probation service. Again however there was publicity in the local newspaper which resulted in an angry response from neighbours and again they moved. This time hurriedly. Once more they slept in their car for some days. Then they purchased a caravan and in early October they moved to a site at Ruabon near Wrexham. We draw attention to the number of moves which the applicants had to make because it illustrates the problems which people with their background face on release from prison.

On 14 January 1997, the local police force, North Wales Police (“NWP”) received a copy of a report prepared by the Northumbria Police shortly before the release of AB and CD from prison. The report recorded views attributed to the probation service indicating that AB and CD were “extremely dangerous people who will pose a considerable risk to children and vulnerable adults in the community where they settle and they will target and procure such people for sexual abuse”.

The report suggested that AB had been resistant to intervention by the probation service while in prison and had refused all attempts to engage in sex offending work. He was regarded as dangerous. CD was said to have been described by a therapist as the most devious sex offender the therapist had ever experienced. CD was said to have expressed the ability to kill. Probation Officers were said to believe that her behaviour, attitude and psychological disposition had remained unchanged since the commission of the offences.

Detective Sergeant Lewis of the NWP Child Protection Team was aware that the applicants were living at the caravan site. He also knew of their record and of the report by the Northumbria Police. He therefore convened on 28 January 1997 a meeting at which there attended, in addition to himself, the Child Protection Team Manager of the Social Services Department and two probation officers of the North Wales Probation Service. At the meeting Detective Sergeant Lewis reported on the contents of the report received from the Northumbria Police and drew attention to the statement that the applicants had resisted all forms of therapy intervention. One of the Probation Officers was aware that this was incorrect and pointed out that both applicants had asked to attend more courses than they had actually attended but had been turned down and said that CD had done a lot of “one to one work with Probation Officers”. The Probation Officers however agreed that on the information available the applicants had to be regarded as being extremely high risk with a potential to re-offend which was regarded as limitless. It was agreed that for the time being it was preferable that all agencies knew where the applicants were living and were able to monitor their activity. Detective Sergeant Lewis stated that the applicants had told him that they would be willing to consider voluntary co-operation with the Probation Service or similar agencies and it was agreed that a probation officer should approach the applicants to ask if they would agree voluntarily to attend a forensic psychiatrist at the local hospital. It was also decided that multi-agency support for the applicants should be conditional upon their continued working with the forensic psychiatrist. A representative of the Social Services Department indicated that he would research the prospect of the local authority providing permanent accommodation and one of the probation officers said he would do the same in relation to NACRO. Detective Sergeant Lewis indicated his concern as to the forthcoming Easter holidays when there would be many children on holiday staying at the caravan site. It was agreed that attempts should be made to encourage the applicants to move to a place where they would come into less direct contact with children.

On 6 February 1997, Detective Sergeant Lewis and one of the probation officers met the applicants who were somewhat distrustful but agreed to attend at least one session with the forensic psychiatrist and AB stated that it was his intention to more elsewhere before the Easter vacation so that it was not thought that they were staying because of the presence of children. Arrangements were then made with a consultant forensic psychologist (Dr Hope Borland) who agreed to take the applicants as patients on a voluntary referral.

On 13 February 1997, Detective Sergeant Lewis, having been informed by the probation service that they considered it appropriate that the site manager should if necessary be informed of the applicants’ past history, spoke to the applicants’ solicitor and voiced his concerns. He impressed the solicitor by his obvious desire to help the applicants find employment and accommodation and to reduce the risk of their re-offending. On 20 February, Detective Sergeant Lewis visited the applicants at the site. During the visit the applicants told him they wanted to avoid their identifies being disclosed and that they would move to prevent this happening. The applicants however remained at the caravan site and on 27 March 1997, after the position had been considered by senior police officers, the Detective Sergeant was instructed to visit the site owner and show him the material which had appeared in the press. This method was chosen because it involved the use of material which was already in the public domain. This resulted in the applicants being told they would have to move on which they did. From that time until the hearing before the Divisional Court they continued to live in their caravan, though on one occasion they had to move because their identify became known to the local inhabitants and they feared violence. On another occasion their car was vandalised. At the time of the hearing in the court below, the caravan was sited on a lay by off a public road.

Since the hearing the applicants have gone to ground and their whereabouts are now not known to the authorities. They are therefore no longer co-operating with the authorities as they did in the past. They have also not received the treatment that the forensic psychologist might have been able to provide. It was to their credit that they had cooperated voluntarily until they had to move from the caravan site. It was also their case that they refuted the critical comments contained in the report from the Northumbria Police Force Report.

Although NWP did not initially have a policy, a policy was being prepared by NWP and on 19 March 1997 that policy was finalised and circulated. It is a well balanced document which discusses the responsibilities of the police against the statutory and common law background and emphasises that in general, disclosure must only be made on a “need to know basis” while at the same time drawing attention to the fact that the police have an obvious duty to protect the public and would be subject to adverse publicity if they fail to do so. It also drew attention to the contents of Home Office Circular 45/1986 to which reference has already been made.

The relief which the applicants sought on their application for judicial review revolved round this NWP policy. A declaration was sought that that policy was unlawful. In addition there was a claim for an order of certiorari quashing the policy and an injunction to restrain the NWP from implementing the policy. The only other relief which was sought was an order prohibiting the NWP from disclosing the whereabouts of the applicants’ or releasing information about them.

Since the decision of the Divisional Court the policy which was the subject of the applicants’ application has been overtaken by the publication of a new policy issued by the Home Office. This was published in consequence of the coming into force of the Sex Offenders Act 1997 (which received the Royal Assent on 21 March 1997). The 1997 Act included in Part I statutory requirements for the notification of their residence after their release from prison by sex offenders. The provisions of the Act do not apply retrospectively to the applicants. However in conjunction with the Act the new Home Office policy guidance was issued to police forces as to the management of information they received about sex offenders. While that guidance is not directly applicable to persons in the position of the applicants, in practice it is applied by police forces in place of existing policies. This is true of the NWP.

“The policy recognised the general principle that police information about former paedophile offenders should not be disclosed unless the public interest required it. It acknowledged that disclosure could only be justified for the protection of a member of the public who might otherwise become the victim of crime and who might be in need of protection. It was implicit in the policy that each case would be considered on its merits and explicit that clearance at the highest level should be obtained before disclosure was made. I detect no legal flaw in the policy”. (P.733 G/H)

“I have great difficulty in accepting that the information which the NWP held which enabled them to disclose this connection was the subject of any duty of confidence owed to the applicants. But even if it was it seems to me clear that the circumstances were such as to entitle the NWP to make such disclosure. It is hard to imagine circumstances in which the police could acquire information subject to a duty of confidence which would not have entitled them to disclose that information when the public interest required them to do so. This was, as they judged, such a situation and nothing suggests to me that their judgment was unlawful.”

“acquire information of a potentially confidential nature outside the ambit of their public obligations or use or disclose such information, however acquired, other than in proper performance of their duties, whether that disclosure were by culpable accident or design, the situation would be potentially different ... Even then, the information concerned would have to be confidential judged by the private law rules of confidence and it does not become such just because it is collected by a public body that is subject to public law obligations”. (See Elliott v Chief Constable of Wiltshire The Times 5 December 1996).

“What in this case might at least be argued to have the basic attribute of inaccessibility (see Gurry, Breach of Confidence [1984] p.70...) was the conjunction of those various facts. It was that conjunction the police deliberately brought to the attention of the site owner, when otherwise he would not, or probably would not, have found it out. As I have said, I very much doubt whether the subject of even that conjunction of information can claim confidence in it, because none of that information has come in to the possession of its holder in circumstances that impart an obligation of confidence. I do however consider that a wish that certain facts in one’s past, however notorious at the time, should remain in the past is an aspect of the subject’s private life sufficient at least potentially to raise questions under Article 8 of the Convention.”

An allegation of misfeasance in a public office was rejected because the Divisional Court took the view “it cannot be suggested that in the present case the NWP acted with a deliberate and dishonest intention to abuse their powers and with an intention to injure the applicant or with knowledge that they had no power to disclose information to the site owner. All the evidence shows that they acted in a bona fide belief that disclosure was necessary, to the extent made in the public interest.” (p.735 G/H)

Finally, the Divisional Court rejected allegations that the conduct of the NWP contravened the European Convention for the Protection of Human Rights. Here reliance was placed primarily on Article 8 of the Convention. The Court took the view that it was clear that the exception specified in that Article was established. As to Articles 3 and 5 the court was of the view that they could have no application. Having rejected all the allegations, the Lord Chief Justice did add :

“Although I consider that the policy and the conduct of the NWP in this case fell within the bounds of legality, the applicants have drawn attention to a pressing social problem. It is not acceptable that those who have undergone the lawful punishment imposed by the court should be the subject of intimidation and private vengeance, harried from parish to parish like paupers under the old Poor Law. It is not only in their interests but in the interest of society as a whole that they should be enabled and if need be helped, to live normal lives. While the risk of repeated offending may in some circumstances justify a very limited measure of official disclosure, a general policy of disclosure can never be justified, and the media should be slow to obstruct the rehabilitation of ex-offenders who have not offended again and who are seriously bent on reform.”

In addition to the applicants and NWP the Secretary of State for the Home Office, “The Home Secretary” and the National Association for the Care and Resettlement of Offenders (“NACRO”) were joined as parties at the outset of the proceedings. In view of the conflicting interests as to what was the appropriate policy to adopt, it was valuable to have benefit of their submissions. Their contribution confirmed the validity of the conclusions of the Justice Public Law Project, chaired by Laws J. on Reforming the Law and Practice on Intervention in Public Interest Cases (1996). On behalf of NACRO Mr Paul Cavadino, Director of Communications, filed two affidavits. In his first affidavit he stated that legislation was urgently needed to allow extended periods of supervision of sex offenders on release from prison. He therefore welcomes Clause 46 of Crime and Disorder Bill which enables extended periods of post release supervision to be imposed. He also welcomes the Home Office Circular 39/1997. He regards the guidance that the circular provides as being “detailed and well balanced”. He draws attention to the statement in it that “housing arrangements may be an important factor in assessing and managing the risk, particularly when disclosure might render the offender homeless and potentially increase the risk to the public”. He also draws attention to the fact that disclosure should usually be to persons in a position of responsibility such as head teachers and that disclosure to a member of the general public should be very much an exception to the rule. In his second affidavit he also draws attention to the fact that enquiries as to the possibility of rehousing the applicants were allowed to drift in this case. He would like to have seen an investigation into the possibility of neighbouring areas being able to place offenders such as the applicants. He considers that if alternative accommodation had been secured in this case, it would have reduced the risks attendant upon disclosure.

On the appeal the applicants did not repeat their arguments that NWP’s disclosure was unlawful because it amounted to harassment and a breach of Section 3 Caravan Sites Act 1968, or that it was a breach of confidence or that it constituted misfeasance in a public office. Instead the applicants advanced a new argument that NWP had treated them in a procedurally unfair manner. Mr Fitzgerald submitted that NWP were influenced by the Northumbria Police Report throughout. This included the contentions that the applicants were currently extremely dangerous, that they had not been supportive of attempts to involve them in offence focused work, that the therapist regarded the applicants as being individually dangerous and together potentially lethal, that CD is the most devious sex offender ever encountered according to one therapist and finally, that the appellants had been networking with other paedophiles. He submitted that had they been given an opportunity to respond to these allegations they would have been able to correct inaccuracies in the information provided by the Northumbria Police and place other parts of that information in its proper context. Mr Fitzgerald emphasises that a communication to a third person by the police involves a clear implication that the police consider that the person concerned is currently a risk.

Miss Presiley Baxendale QC on behalf of NWP did not dispute that the police had a duty to act fairly. However she submitted that when one looks at the involvement of the police with the applicants as a whole, the police had acted fairly. Detective Sergeant Lewis had clearly communicated his concerns to the applicants and they could have been in no doubt as to the nature of the police’s concern.. The inaccurate information which the sergeant had been given by the Northumbria Police had been corrected by the probation officers. In considering whether the police had acted fairly, it has to be borne in mind that the police had anticipated that the applicants would leave the caravan site voluntarily. It was only when they did not do so, that the police decided that the information should be disclosed and by then there was considerable urgency because of the imminence of the Easter holidays and the increase in the number of children at the site.

On behalf of the Home Secretary, Mr Eadie advanced careful and well balanced submissions as to how the duty (which he accepted existed) to act fairly should be exercised. He agreed that there are cases where it would be desirable, so as to ensure as far as possible that the police are acting on accurate information and so as to ensure the necessary degree of fairness, to afford individuals in the position of the applicants some opportunity to comment. However whether such an opportunity should be afforded and the form that it should take depends on the particular circumstances of a particular former offender. In determining what should be done the overriding priority must remain to protect the public, particularly children and other vulnerable people. The time-scale involved may make it not possible to afford an opportunity to comment. The information in the police’s hands may be of a category which means that it is unlikely that the subject could be expected to add anything of value. The information available to the police may be information upon which the subject has already had an opportunity to comment. The information may be of a nature which means it would be undesirable for it to be disclosed because of its confidentiality or sensitivity or on the grounds of public interest immunity. There is no formal procedure with which the police should be required to comply. The police should be allowed to act in a sensible pragmatic way. It should be remembered that they have to rely upon the advice of experts and they should not be required to test opinions which they have received from experts.

We had no difficulty in endorsing Mr Eadie’s general approach. Each case must be judged on its own facts. However, in doing this, it must be remembered that the decision to which the police have to come as to whether or not to disclose the identity of paedophiles to members of the public, is a highly sensitive one. Disclosure should only be made when there is a pressing need for that disclosure. Before reaching their decision as to whether to disclose the police require as much information as can reasonably practicably obtained in the circumstances. In the majority of the situations which can be anticipated, it will be obvious that the subject of the possible disclosure will often be in the best position to provide information which will be valuable when assessing the risk. In this case the gist of what Detective Sergeant Lewis had learnt about the applicants should have been disclosed to them. At least consideration should have been given as whether to disclose the report from the Northumbria Police. This did not happen and we were not made aware of any reason why there could not have been disclosure. The applicants might have had information which would have caused the sergeant to re-assess the degree of risk. Appalling though their record is, their past offending had been confined to children within their family and a friend of one of their children. As to the problem caused by the closeness of the Easter holidays, we do feel that if Sergeant Lewis had appreciated the importance of giving the applicants an opportunity to comment at least on the gist of the information he had received, the time constraints under which he was acting would not have made it impracticable to disclose to the applicants what he had learnt. Having said that, bearing in mind that the probation officers were aware of the inaccuracies in the information which had been provided by the Northumbria Police but were still of the opinion that the applicants created a high degree of risk, we do not accept that any information which the applicants could have given, if they had been given the opportunity to comment, would have altered the outcome.

In general, the guidelines issued by the NWP and the approach adopted by the Home Office Circulars both reflected the need to maintain the balance between the interests of the individual and the needs of the public which Article 8 requires. We endorse the views expressed by Buxton J in the Divisional Court. The issue here is not the same as it would be in private law. The fact that the convictions of the applicants had been in the public domain, did not mean that the police as a public authority were free to publish information about their previous offending absent any public interest in this being done. As the Lord Chief Justice stated before this happens it must at least be a situation where in all the circumstances it is desirable to make disclosure. Both under the Convention and as a matter of English administrative law, the police are entitled to use information when they reasonably conclude this is what is required, (after taking into account the interests of the applicant) in order to protect the public and in particular children.

This is not a situation where the disclosure could amount to an infringement of any right of the applicants in private law. It is therefore a situation which is different from that considered in Glasbrook Brothers Limited v Glamorgan County Council [1925] AC 270. Nonetheless, the information having come into the police’s possession to enable them to perform their functions, as a public body they were only entitled to use that information when this was reasonably required to enable them to properly carry out their functions. The facts which led to the decision of Laws J in Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 provide an illustration of the approach. In that case the plaintiff may have had an action in private law for breach of confidence in relation to the disclosure of a photograph which had been taken of him by the police. They were still entitled to make “ reasonable use of it for the purpose of the prevention and detection of crime, the investigation of alleged offences and the apprehension of suspects or persons unlawfully at large”. (At p.810 E/G emphasis added)

The more recent circular of the Home Office is an improvement on the policy which the NWP were operating at the time. However, in order to accord with the Convention, a policy does not have to be incapable of improvement. A different emphasis can exist in different jurisdictions. (See for example Markesenis, the German Law of Obligations, Vol II page 390). There can be a margin of appreciation as to the proper application of the Convention in different jurisdictions.

Mr Fitzgerald accepted that the court will be slow to characterise as irrational an operational decision such as the NWP made here to disclose information about sexual offenders where their motive is to protect children. On the evidence there is no question of NWP being motivated by any improper considerations. Mr Fitzgerald did submit that the police could have been seeking to drive the applicants from the locality. However, Detective Sergeant Lewis strongly contests this and the evidence indicates that this was not the position.

Mr Fitzgerald contends that the decision to disclose was irrational. He founds his submission on: the danger that may result from an offender “going underground”; the inadequate attempts which were made to obtain alternative accommodation for the applicants; the failure to conduct a thorough and effective risk assessment before taking the drastic decision which would inevitably cause the applicants to move on before they could obtain the benefit of the treatment which was about to become available from Dr Hope-Borland, causing the applicants to move when there was no alternative accommodation to which they could move where there would be a reduced risk of their offending again.

This submission of Mr Fitzgerald cannot be dismissed out of hand. Nonetheless bearing in mind that the action of the NWP was supported by the other agencies it is quite impossible to categorise it as irrational. There can be no doubt that Sergeant Lewis was seeking to do the best he could in a very difficult situation. Indeed, although there are criticisms which can be advanced as to the way he handled the situation, in general he showed commendable understanding, sensitivity and diligence in seeking to solve the problem which confronted the NWP. The experience at the time of the NWP was limited. It was not the police’s responsibility to provide accommodation and the shortcomings, if any, are not the responsibility of the NWP. In fact Sergeant Lewis despite this made attempts to find suitable private accommodation for the applicants. Whether treatment would have helped the applicants we do not know but the Sergeant appreciated the desirability of this being available. Handling of issues of this nature can be expected to improve with experience, but this does not detract from his commendable conduct.

We agree with the Divisional Court that the policy of the NWP was not unlawful nor was the action of the police in giving effect to that policy. The more recent guidance of the Home Secretary is an improvement on that policy. It is reassuring to know that the latest policy will be applied in future. The result of the passage of time between the hearing before the Divisional Court and the hearing on this appeal has been to draw attention to the advantages, where this is practical, of obtaining the offenders’ version of events. It has also highlighted the significance of trying to find appropriate accommodation for offenders when they are released from prison. This is surely where this case illustrates action is needed. Determining what is the right action to take to protect children from risk will still remain an immensely difficult problem but if previous sexual offenders know that help with safe accommodation will be available they are less likely to go to ground. If their whereabouts are known it will be easier to minimise the danger of further offending. It is to be hoped that Mr Cavadino is right in his view that recent legislative measures could prove of assistance. However the present policy is already an improvement on the previous policy but even that policy is likely to have to be reviewed in the light of further experience. The advantage which has flowed from the unfortunate occurrences which have from time to time occurred is that it is now recognised that what is required above all is a proactive rather than a reactive policy for dealing with offenders who have committed offences against children in the past.

England and Wales Court of Appeal (Civil Division) Decisions