29.57H and L v A City Council [2011] EWCA Civ 403, (2011) 14 CCLR 381
It had been disproportionate to disclosure child sexual offences to organisations where the persons worked which were not involved with children and to personal assistants who were not allowed to bring children with them and the process had been unfair
Facts: H was disabled, and active in the disability rights movement. He had also been convicted of a sexual assault on a child, and also for failing to disclose that conviction when applying for a job; additionally he faced trial for a further sexual assault. The Council was alerted to these facts and, after a meeting with H and his solicitors (i) informed nine organisations with which H had connections of his convictions and the potential for further convictions, (ii) decided that H’s personal disability assistants should be informed and should agree not to allow H unsupervised contact with children and that although H received direct payments, the assistants should be paid through a managed account.
Judgment: the Court of Appeal (Pill, Hooper and Munby LJJ) held that the Council had acted unfairly and disproportionately, in that it had adopted a blanket approach rather than asking whether there had been a pressing need for disclosure. The court had to apply an intense scrutiny and form its own conclusion. In this case, H and L were not involved in groups working with children unlawfully so that disclosure to those groups was disproportionate and, since H and L’s personal assistants were contractually prohibited from bringing children to work, disclosure to them was also unnecessary and disproportionate. In addition, the process had been unfair in that H and L had not been afforded the opportunity of comment before the disclosures had been made. Munby LJ said this:
Disclosure: the law
36. The first has to do with the respective functions of the local authority and the court and, in particular, the legal tests each had to apply. In relation to this Judge Langan fell into what I have to say was serious error.
37. The task for the local authority was, putting the matter shortly, to apply the principles to be found in R v Chief Constable of the North Wales Police ex p Thorpe [1999] QB 396 as adjusted by the re-calibration of the ‘balancing exercise’ undertaken in R (L) v Commissioner of Police of the Metropolis (Secretary of State for the Home Department intervening) [2009] UHSC 3, [2010] 1 AC 410. The latter case, although decided in relation to the statutory scheme under section 115 of the Police Act 1997, is, in my judgment, equally applicable in the present non-statutory context. As the authorities show, each case must be judged on its own facts. The issue is essentially one of proportionality. Information such as that with which we are here concerned is to be disclosed only if there is a ‘pressing need’ for that disclosure. There is no difference in this context between the common law test and the approach mandated by Article 8. The outcome is the same under both.
38. In considering proportionality the general principles are, as Mr Cragg submits, those to be extracted from the well-known passage in the speech of Lord Bingham of Cornhill in Huang v Secretary of State for the Home Department, Kashmiri v Same [2007] UKHL 11, [2007] 2 AC 167, para [19]: (i) the legitimate aim in question must be sufficiently important to justify the interference, (ii) the measures taken to achieve the legitimate aim must be rationally connected to it, (iii) the means used to impair the right must be no more than is necessary to accomplish the objective, and (iv) a fair balance must be struck between the rights of the individual and the interests of the community; this requires a careful assessment of the severity and consequences of the interference.
39. Prior to the decision of the Supreme Court in L, the effect of the decision of this court in R (X) v Chief Constable of the West Midlands Police [2004] EWCA Civ 1068, [2005] 1 WLR 65, had been to tilt the balance in favour of disclosure. As Lord Hope of Craighead put it in L at para [38], the effect of the approach in X was to encourage disclosure of any information that might be relevant, and to give priority to the social need that favours disclosure over respect for the private life of those who may be affected by the disclosure. He said (para [44]) that the effect of this approach had been to tilt the balance too far against the person about whom disclosure was being made.
40. Explaining the proper approach, Lord Hope said (para [42]):
‘the issue is essentially one of proportionality. On the one hand there is a pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the applicant’s right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place.’
He continued (para [45]):
‘The correct approach, as in other cases where competing Convention rights are in issue, is that neither consideration has precedence over the other … The [approach] should be restructured so that the precedence that is given to the risk that failure to disclose would cause to the vulnerable group is removed. It should indicate that careful consideration is required in all cases where the disruption to the private life of anyone is judged to be as great, or more so, as the risk of non-disclosure to the vulnerable group. The advice that, where careful consideration is required, the rationale for disclosure should make it very clear why the human rights infringement outweighs the risk posed to the vulnerable group also needs to be reworded. It should no longer be assumed that the presumption is for disclosure unless there is a good reason for not doing so.’
41. That was the task the local authority had to undertake here. What was the task for the judge? His task was one of review, not decision on the merits. Judge Langan seems to have thought that the appropriate standard of review here was the Wednesbury test of irrationality. It was not. As Mr Cragg submitted, and Mr Pitt-Payne correctly conceded, what was required in this sensitive area of human rights was the more intense standard of review described by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532, para [27]. In a case such as this, proportionality will require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions; this goes further than the traditional grounds of review inasmuch as it requires attention to be directed to the relative weight accorded to interests and considerations.