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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> W, R (on the application of) v The Secretary of State for Justice [2015] EWHC 1952 (Admin) (08 July 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/1952.html Cite as: [2015] EWHC 1952 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Leeds Combined Court Centre 1 Oxford Row, Leeds, LS1 3BG
		8/7/2015

Mr Justice Simon:

Introduction

1. On 26 November 1982, when he was aged 16, the Claimant was convicted of an offence of assault occasioning actual bodily harm ('ABH'), contrary to s.47 of the Offences against the Person Act 1861. He was given a 2-year Conditional Discharge and bound over to keep the peace for 12 months.
2. Since then he has made a success of his life and has not been in any trouble with the law for 31 years. He now wishes to obtain a qualification teaching English as a second language; and in 2013 began a training course with a view to obtaining a Certificate in English Language Teaching to Adults. He applied through his College to the Disclosure and Barring Service ('DBS') for a criminal records certificate. That certificate showed his conviction for ABH, because the offence is one of the offences which must be disclosed under the current statutory regime for disclosure.
3. In this claim he seeks to challenge this disclosure regime. His case, in summary, is that it is a disproportionate interference with his right to respect for his private life under Article 8 of the European Convention on Human Rights ('ECHR') to require the disclosure of a conviction for ABH for which he received a conditional discharge so long ago, when he was a juvenile.
4. His claim does not involve a challenge to the lawfulness of a regime in which convictions and cautions for certain offences must always be disclosed; his complaint is that, what was a minor historic offence of ABH disposed of by a conditional discharge, should not be included in a category of mandatory disclosure.
5. The Defendant's response is that Parliament decided that ABH is a sufficiently serious offence that, irrespective of the sentence and the time that has passed since the commission of the offence, it is always potentially relevant to a prospective employer who is entitled to be aware of it before reaching a view as to a person's suitability for employment, for example, with children or vulnerable adults. The Defendant submits that it would be wholly inappropriate for the Court to go behind the judgement of Parliament; and that the view that ABH should be included in the list of offences which must always be disclosed was plainly proportionate.
6. In order to consider these arguments it is first necessary to consider the legislative and regulatory history and, in particular the circumstances which led to the changes in May 2013.

The legislative framework prior to May 2013

7. There are two limbs to the legislative framework: first, the Rehabilitation of Offenders Act 1974 ('the ROA 1974') and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 ('the 1975 Exceptions Order'), and secondly, the Police Act 1997.

The ROA 1974 and the 1975 Exceptions Order

8. The ROA 1974 provided, by sections 4(2) and 4(4) that, where a question seeking information about a person's previous convictions is put to him, the question is to be treated as not relating to spent convictions and the person is exempted from any liability by reason of a failure to acknowledge or disclose a spent conviction. This is subject to the terms of any order made by the Secretary of State.
9. It was pursuant to the power to make such an order that the Secretary of State made the 1975 Exceptions Order, which came into effect on the same day as the ROA 1974. This has the effect of dis-applying section 4(2) of the ROA 1974 where the question is asked by a person in the course of the duties of his office or employment in order to assess the suitability of the person to whom the question relates, amongst other matters, for admission to a number of specified professions. These include those which involve working with children and vulnerable adults, as well as the police, prison service and the probation service: see article 3(1) and Schedule 1 to the 1975 Exceptions Order.
10. The 1975 Exceptions Order reflected the view that, while it is generally desirable to effect the rehabilitation of offenders and help them into employment, the public must be adequately protected in certain respects. Until 29 May 2013, the effect of article 3(1) of the 1975 Exemption Order was that in those circumstances a person was not exempted from disclosure of any spent conviction or caution.

The Police Act 1997

11. Part V of the Police Act 1997 created the statutory scheme for the disclosure of criminal records by the police where such information was required for the purposes of assessing a person's suitability for employment in particular positions of trust or sensitivity, for example, working with children. The DBS (previously known as the Criminal Records Bureau) was required to issue a criminal record certificate to any individual who made an application in the requisite manner, which gave prescribed details of every 'relevant matter' relating to the applicant which was recorded in central records: see s.113A(3).
12. Under this regime, materially 'relevant matter' was defined as any conviction, caution, reprimand or warning, whether spent under the 1974 Act or not.

Reviews of the operation of the disclosure scheme

13. In September 2009 the Government appointed Sunita Mason (the Government's Independent Advisor on Criminality Information Management) to conduct a review of the retention and disclosure of records on the Police National Computer ('PNC') with a view to considering whether a more proportionate approach to disclosure could be taken. In a report published in March 2010, 'A Balanced Approach', she recommended, among other matters, that the information provided from the PNC in relation to employment checks should be filtered, using specific business rules so that employers were not given every piece of recorded information held on the PNC. This would have the result that 'certain old and minor records' were never disclosed (§91). A possible filtering system and 'the setting of business rules' were described at §§95-100 of the Report. The 6th recommendation in the report was that an expert panel be assembled to advise the Government on the filtering rules that should be applied to any new legislative arrangements.
14. This recommendation was accepted and the Independent Advisory Panel for the Disclosure of Criminal Records ('IAPDCR') was set up, chaired by Mrs Mason. This included representatives from a diverse group of interested parties with backgrounds in the law, reformation of offenders, child protection, policing, regulation and civil liberties.
15. In October 2010 Mrs Mason embarked on a Criminal Records review. She reported on Phase 1 of that review in February 2011 under the title, 'A Common Sense Approach'. The 5th recommendation in this Report was that the Government introduce 'a filter to remove old and minor conviction information from criminal records checks.' At page 27 of the Phase 1 review she considered some of the issues in relation to this filter. Having defined 'conviction information' as including conviction, caution, warning and reprimand the report continued:

There is a reasoned argument that, in many cases, the disclosure of conviction information that is both minor and disproportionate places an unnecessary burden on the lives of individuals. This is particularly so where the conviction became spent many years earlier and the individual poses no significant public protection risk to children or vulnerable adults …

I am therefore keen to ensure that the Government implements an appropriate form of filtering in the [Criminal Records Bureau] process which removes conviction information that is undeniably minor and which cannot be classed as anything other than old.

16. On page 28 of the Report she wrote:

To ensure ongoing public protection there should always be a significant number of conviction types that will always be disclosed. Examples of serious conviction headings and groups that may be included in this category are detailed below:

Assault and Violence Against the Person

Affray, Riot and Violent Disorder

Aggravated Criminal Damage

Arson

Drink and Drug Driving

Drug offences

Robbery

Sexual Offences.

17. On the same page she noted that there was more than one opinion as to what constituted convictions for serious offences.

It may also be argued that low level convictions for violence such as common assault may become more important where the individual works with children or vulnerable adults.

She looked forward to the IAPDCR's assessment of each category of conviction.

18. In November 2011 Mrs Mason reported on Phase 2 of her Criminal Records review. It is unnecessary to refer to this report which primarily related to the management of records.
19. In December 2011 she reported to the Secretary of State for the Home Department and the Defendant in the light of the IAPDCR's deliberations. Although the panel unanimously agreed that 'old and minor convictions should be filtered out' and although it agreed certain principles which should be applied, it was not able to agree a comprehensive proposal as to how the filtering should be carried out. Among the principles on which the IAPDCR had reached agreement were:

Filtering should include convictions, cautions, warnings and reprimands, aligned to conviction type;

There should be a consultation process before a particular conviction type can be filtered [out];

…

Particular care should be taken before considering any sexual, drug related or violent offence type for filtering.

20. The panel felt that any definition of a minor offence should be set by the Government following consultation but gave examples of what might constitute a minor offence: drunk and disorderly, offences against property and failure to report an accident.
21. Having noted the lack of evidence-based research material, Mrs Mason expressed her personal view that 'there should initially be a cautious approach to implementation of any proposal for filtering' (page 2).

The legal challenges to the pre-May 2013 legislation

22. By the time of her report on the IAPDCR's deliberations in December 2011, Judicial Review proceedings had been begun in which challenges were made to the existing disclosure regime.
23. In January and August 2011 claims had been brought challenging the compatibility of the relevant provisions of the 1975 Exceptions Order and the Police Act 1997 with rights under Article 8 of the ECHR. On 26 and 27 November 2012 the Court of Appeal heard argument in three cases: R (T) v Chief Constable of Greater Manchester and Others, R (JB) v Secretary of State for the Home Department, and R (AW) v Secretary of State for Justice [2013] 1 WLR 2515, [2013] EWCA Civ 25) ('R (T) in the Court of Appeal'). The cases raised general issues of principle as well as issues specific to the individual claimants.
24. On 29 January 2013 the Court gave judgment. It accepted that the pre-May 2013 legislation interfered with Article 8 rights in pursuit of both the general aim of protecting employers, and particularly children and vulnerable adults who are in the their care, and the particular aim of enabling employers to make an assessment as to whether an individual is suitable for a particular kind of work. However, the Court also made a number of criticisms of the legislative regime. First, it found that the requirement that all convictions and cautions relating to recordable offences should be disclosed was disproportionate to the legitimate aim [37]. Secondly, it identified as a fundamental objection to the scheme was that it did not seek to control the disclosure of information by reference to whether it was relevant to the purposes of enabling an employer to assess the suitability of an individual for a particular kind of work [39].

Relevance must depend on a number of factors including the seriousness of the offence; the age of the offender at the time of the offence; the sentence imposed or other manner of disposal; the time that has elapsed since the offence was committed; whether the individual has subsequently re-offended; and the nature of the work the individual wishes to do.

25. Thirdly, the Court recognised that 'bright line' rules were legitimate in some circumstances and that they are not susceptible to challenge simply because of cases at the margins which are not fully catered for the rule [40]. Fourthly, it also recognised that a proportionate scheme would not require individual consideration of the particular case. In this context the Court considered^[1] §§97-98 of Mrs Mason's first report, 'A Balanced Approach' (referred to at [13] above) in which she had given examples of criteria that could be used for a filtering process at §§97-98.
26. In the case of T the appeal was allowed, and in the case of JB the Court made a declaration of incompatibility. In the case of AW permission to appeal was refused and the Court made some specific observations in her case. AW's counsel had argued that she was a child at the time she committed what were serious offences, and that a scheme which provided that someone in her position could never be rehabilitated interfered disproportionately with her article 8 rights. It amounted to a blanket and indiscriminate policy. The Court rejected that argument. It held that Parliament was entitled to take the view that some offences were so serious that they should never be regarded as spent [73]:

That is not a blanket policy. It discriminates between offences which are very serious and those which are not. Some might think Parliament has drawn the line in the wrong place or that there should be scope for review after a specific period of time. But we are not persuaded that Parliament's response to a question of social policy was disproportionate.

27. The judgment of the Court of Appeal, together with the reports and recommendations of Mrs Mason and the expressed views of IAPDCR, led to proposed amendments to the 1975 Exceptions Order, by means of a draft Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 and to the Police Act 1997 (by means of the draft Police Act 1997 (Criminal Records Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013) that were laid before Parliament on 26 March 2013.
28. On 20 May 2013 these draft Orders were considered and approved by the Second Delegated Legislation Committee of the House of Commons. When introducing the draft Orders Jeremy Wright MP (then Minister of Justice) explained that the Government had taken into account the issues raised by R(T) in the Court of Appeal and the various possible criteria for exclusion: the nature of the offence committed, the disposal, the age of the offender at the time and the period that had elapsed since then, and described the intent of the amendments:

In effect, the changes mean that certain old and minor spent cautions and convictions will no longer be subject to disclosure under the Exceptions Order; and employers and or other decision-makers will not be able to take them into account when making a decision about any individual …

Under the provisions all cautions and convictions for serious violent and sexual offences, and for certain other specified offences, will always remain subject to disclosure. In addition, all convictions for any offences that are so serious that they result in a custodial sentence will remain subject to disclosure.

29. Rather than filtering out certain minor offences, the Government had decided to draw up a list of offences which were regarded as appropriate to be disclosed: a 'filtering in' approach.
30. The draft Orders were supported by the Opposition (Jenny Chapman MP), in the following terms:

We support the detail of the listed offences that are relevant to the orders … Such safeguards are vital, as without them the changes would not be acceptable. The exclusion of any violent or sexual offence, of any offence that warranted a sentence or was related to the safeguarding of vulnerable groups, and of any conviction when it was not the only one on an offender's record, ensures that the most serious offences and any repeat offenders are taken out of the scope of the order.

31. The draft Orders were considered and approved by the Grand Committee of the House of Lords on the following day (21 May 2013), where the Home Office Minister drew attention to the fact that all cautions and convictions for serious violent and sexual offences, as well as certain other offences, would continue to be disclosed.
32. The Orders were made on 22 May and the amendments came into effect on 29 May 2013.
33. On 9 and 10 December 2013 the appeals of the Chief Constable of Greater Manchester Police and the Secretaries of State for the Home Department and Justice in R(T) were heard by the Supreme Court. On 18 June 2014 the Supreme Court dismissed the appeals against the grant of a declaration of incompatibility in respect of sections 113A and 113B of the Police Act 1997, but allowed the appeal against the declaration that the 1975 Exceptions Order was ultra vires, see R (T) v. Chief Constable of Greater Manchester Police and others, R (B) v Secretary of State for the Home Department , [2015] AC 49, [2014] UKSC 35 ('R (T) in the Supreme Court').
34. Most of the judgments were concerned with the legislative framework prior to May 2013, but at [48] Lord Wilson JSC considered the possibility of a more 'calibrated' disclosure system:

Nor, to take the present cases, can the Secretaries of State contend that it is impossible to devise a more calibrated system for identifying material which should be the subject of disclosure under the 1997 Act and the 1975 Order. For, in introducing the 2013 amendments, they duly devised it. Indeed back in 2010 the Secretary of State for the Home Department commissioned Mrs Mason's review. The Secretaries of State convincingly protest that Mrs Mason's commission was not born of any acceptance that the regime which then existed violated rights under article 8 … But it was the Secretary of State for the Home Department who chose to describe Mrs Mason's remit as being to scale back the criminal records system (obviously including disclosure under the 1997 Act) 'to common sense levels.'

35. Earlier in his judgment, at [39], Lord Wilson addressed the question of the necessity of the interference in private life in the legislative framework prior to May 2013 at [39]; and identified the four questions which arose: (1) whether the objective behind the interference was sufficiently important to justify limiting the rights under article 8; (2) whether the measures were rationally connected to the objective; (3) whether they went no further than was necessary to accomplish it; and (4) 'standing back' whether they struck a fair balance between the rights of the individual on the one hand and the interest of the community on the other.
36. At [40], he added this:

The objective behind the regime created by the 1975 Order and by Part V of the 1997 Act was supremely important. It was to protect various members of society, particularly vulnerable groups such as the elderly and children but also, for example, consumers of financial advice, from exposure to persons able and likely to mistreat, neglect or defraud them. On any view the contents of the Order and of the Act were rationally connected to the objective. The issue surrounds the third and fourth questions, in relation to both of which the Secretaries of State make a valid preliminary point. It is that whether the measures were necessary to accomplish the objective and whether the balance was fairly struck are issues of fine judgment which, by affirmatively approving the 1975 Order and by enacting the 1997 Act, Parliament itself determined and that the courts should therefore hesitate long before concluding that its judgments in these respects was wrong.

37. Ms Gallafent QC drew attention to the observations about the objectives of the disclosure system and the conclusion that the measures were rationally connected to the objective. She also relied on the clear statement that issues (3) and (4) were issues of fine judgment which Parliament itself had determined and that the courts should therefore hesitate long before concluding that its judgment in these respects was wrong. She submitted that where changes introduced a more calibrated system, taking into account the reports of Mrs Mason and the views of the IAPDCR, the Court's hesitation should be even more marked. In that submission she is plainly right.
38. Furthermore she is entitled to draw attention to the fact that the new disclosure system addressed the concerns which Lord Wilson articulated in [41] of his judgment about the old disclosure system:

There was no attempt to separate the spent convictions and the cautions which should, and should not … be disclosed by reference to any or all of the following: (a) the species of offence; (b) the circumstances in which the person committed it; (c) his age when he committed it; (d) in the case of conviction, the sentence imposed on him; (e) his perpetration or otherwise of other offences; (f) the time that elapsed since he committed the offence; and (g) its relevance to the judgement to be made by the person making the request.

39. Mr Offer submitted that the application of these criteria to his client's conviction leads to the conclusion that there should be no disclosure: it was not a serious offence, it was an assault by one schoolboy on another when he was 16, he was conditionally discharged and he had committed no further offences in the 30 years which had elapsed since then.
40. Ms Gallafent's answer was that Lord Wilson had identified any one of the items on the list as being potentially determinative, and that under the new regime Parliament had focussed on the seriousness of the offence as being a key factor.
41. I am doubtful whether Lord Wilson was intending this part of his judgment to be read as if it were a statute. He was only suggesting matters which had already been considered as being potentially relevant by Mrs Mason and IAPDCR. In my view it may be more fruitful to look at the way in which Parliament decided to weigh the seriousness of the offence; and it is to that point that I now turn.

The May 2013 amendments to the 1975 Exceptions Order and to Police Act 1997

The Amended 1975 Exceptions Order

42. The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 (the '2013 Order') introduced the concept of a 'protected conviction' to which article 3(1) of the 1975 Order did not apply, see article 4 of the 2013 Order, adding article 2A to the 1975 Order.
43. By article 2A(2) a person's conviction is a protected conviction if the conditions in paragraph (3) are satisfied, and (a) where the person was under 18 years at the time of the conviction, five years and six months have passed since the date of the conviction or (b) where the person was 18 years or over at the time of the conviction, 11 years or more have passed since the date of the conviction.
44. The conditions set out paragraph (3) are that:

(a) the offence of which the person was convicted was not a listed offence;

(b) no sentence mentioned in paragraph (4) [a custodial sentence or a sentence of service detention] was imposed in respect of the conviction; and

(c) the person has not been convicted of any other offence at any time.

45. Listed sentences for the purposes of paragraph (3)(a) include 'an offence specified in Schedule 15 to the Criminal Justice Act 2003' (the '2003' Act), see paragraph (5)(d). The offence of ABH is listed in Schedule 15.

The Amended Police Act 1974

46. Article 3 of the Police Act 1997 (Criminal Records Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 brought the Police Act 1997 into line with the revised disclosure system, It did this by amending the definition of 'relevant matter' at section 113A(6) of the 1997 Act so as to mean:

(a) in relation to a person who has one conviction only –

(i) a conviction of an offence within subsection (6D);

(ii) a conviction in respect of which a custodial sentence or a sentence of service detention was imposed; or

(iii) a current conviction;

(b) in relation to any other person, any conviction;

47. Section 113A(6D) provides that the definition of 'relevant matter' in section 113A(6) includes:

…

(e) an offence specified in Schedule 15 to the Criminal Justice Act 2003 (specified offences for the purposes of Chapter 5 of Part 12 of the Act (dangerous offenders).

48. In order to better enable an employer to form a fair view about a potential employee's conviction, the Home Office has published a Code of Practice for use by any person registered with the DBS and other recipients of disclosed information, which was presented to Parliament pursuant to s.122(2) of the Police Act 1997. The most recent version (dated April 2009) includes an obligation to discuss the content of the disclosure with an applicant before withdrawing an offer of employment (see §4.4).

The offence of ABH

49. Offences specified in Part 1 of Schedule 15 to the 2003 Act are 'specified violent offences' for the purpose of Chapter 5 of Part 12 of the 2003 Act (see section 224(3)).
50. All specified violent offences under Part 1 of Schedule 15, and specified sexual offences under Part 2 of Schedule 15, are 'specified offences' for the purpose of Chapter 5 of Part 12 of the 2003 Act. A specified offence may also be a 'serious offence'. The specified violent offence of ABH is incapable of constituting a 'serious offence' within the definition at section 224(2) because it carries a maximum term of 5 years' imprisonment in the case of an adult. Nevertheless, an extended sentence may be imposed for a specified violent or sexual offence where the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences and either the offender has previously been convicted of an offence listed in Schedule 15B to the 2003 Act, or where the term that the court would specify as the appropriate custodial term if the court were to impose an extended sentence of imprisonment must be at least 4 years, see s.226A of the 2003 Act.
51. It follows that a conviction for an offence of ABH may potentially attract an extended sentence.

The Claimant's case in summary

52. In the course of his submissions Mr Offer made a number of realistic admissions. First, he conceded that the revised disclosure regime was in accordance with law. Secondly, he accepted that it pursued the legitimate objective identified in R (T) in the Supreme Court by Lord Reed JSC at [141]: namely the undoubted public interest in ensuring the suitability of applicants for certain positions, including those involving the supervision or care of children or vulnerable adults, and those which are of particular sensitivity, such as positions connected with the administration of justice^[2]. Thirdly, he acknowledged that when assessing whether or not Parliament has struck a legitimate balance between competing interests at play, the court should accord to the Defendant a margin of appreciation, see Lord Wilson JSC at [40] and Lord Reed JSC at [114].
53. However, Mr Offer drew attention to the observation in R (T) in the Court of Appeal at [27]: that although there are aspects of political and executive judgement in which the Court will be very slow to substitute its own view, that does not mean that they are areas from which the Courts regards itself as prohibited.
54. His submission was that 'standing back' the new disclosure regime did not strike the right balance, see Lord Wilson in R(T) in the Supreme Court at [39] (see above). In particular, a regime which focuses so much on the type of offence and so little on the historic nature of the offence and the current circumstances of the offender was disproportionate in its effect.

Discussion

55. In considering how the disclosure regime should be rendered compatible with rights to private life, the Court of Appeal in R (T) at [81] recognised that there were various ways in which this might be done and concluded:

In our view, the decision as to how these difficult issues should be resolved should be made by Parliament.

56. When considering how to devise a new disclosure regime, among other issues, Parliament was faced with two initial questions: first, whether the criteria for disclosure should involve filtering-out particular offences or the inclusion of particular offences which would be disclosed ('filtering-in'); and secondly, which offences should be disclosed and which should not.
57. So far as the first question is concerned, it could not be said (and is not said) that Parliament was not entitled to adopt a filtering-in approach. So far as the second question is concerned, there were a number of factors which bore on the answer.
58. Although the reports of Mrs Mason and the consultation work with the IAPDCR had failed to reach a clear conclusion as to where and how a line should be drawn, there was consensus on a number of points. First, offences which were both old and minor offences should not be disclosed. Secondly, 'particular care' should be taken before violent and sexual offences were filtered out. Thirdly, the argument that low level convictions for violence such as common assault could take on greater significance in particular circumstances (work with children or vulnerable adults) was recognised as 'having force'.
59. In the event Parliament decided to draw the line so as to exclude common assault from disclosure, despite the argument which could be made that it should be included, and to include those offences of violence which were characterised as specified violence offences in Schedule 15 for the purposes of Chapter 5 or Part 12 of the 2003 Act.
60. As the Court of Appeal in R (SG and others) v Secretary of State for Work and Pensions [2014] PTSR 619, [2014] EWCA Civ 156 noted at [28], it was relevant to the intensity of the court's review that the legislation in issue had been approved by affirmative resolutions of both Houses of Parliament and had been subject to vigorous debate in both Houses of Parliament; and that there are areas of governmental life in which the Court should be very slow to substitute its own view for that of the legislature or executive, although this did not mean that the legislation fell outwith the Court's consideration, see [27].
61. It is clear from the witness statement of Alison Foulds, a policy official in the Sentencing Unit at the Ministry of Justice and policy lead on the ROA 1974, that there was a very careful analysis of the various ways in which a revised disclosure scheme might be 'recalibrated'; and it is also apparent that convictions for violent or sexual offences had been the subject of specific consideration.
62. The reasons for the legislative approach are described at §35 of Ms Foulds's witness statement:

Rather than specifying which minor offences should be filtered out the Home Office and Ministry of Justice identified which offences were sufficiently serious and/or relevant that they should not be filtered. The issue of which offences should remain subject to disclosure, regardless of disposal, was resolved by relying on decisions taken by Parliament to identify serious offences which could attract the dangerous offender provisions in the sentencing framework (i.e. the specified violent and sexual offences listed in Schedule 15 to the Criminal Justice Act 2003), and other legislation dealing with the suitability of people to work in the safeguarding sector. The amendments to the 1974 Order are therefore not based on an arbitrary list of individual offences which, as Mr Woodcock^[3] recognised, would potentially be an extremely difficult and time consuming exercise, not least as [opinions] and views differ around what constitutes a serious offence and therefore what is minor (see Mrs Mason's report p.3). Indeed, the fact that the IAPDCR was unable to reach consensus on this issue amply demonstrates the difficulty of formulating such a list. Rather, the amended Order incorporates categories of offences already established in other legislation and accepted by Parliament as being serious. This approach also means that the list of offences will not be subject to individual changes over time, which would be confusing and uncertain

63. Her statement also makes clear that the task of the Home Department and the Department of Justice was to come up with a workable scheme which was both sufficiently nuanced and sufficiently certain so that individuals would know what was protected from disclosure, and so that the DBS could be changed and certificates could still be issued automatically^[4]. Two points may be noted in this context. First, the scale of disclosure: in the year from September 2013 to August 2014, the DBS received 3,975,333 applications for criminal record certificates. At the financial year ending 31 March 2014 the DBS employed an average of 721 people and cost approximately £138.3m per annum^[5]. Secondly, it had to be designed to cover a wide ranging list of occupations and activities: the safeguarding sector, financial and criminal justice sectors, parts of the security industry, home inspectors, traffic wardens and taxi drivers^[6]. The 1975 Exceptions Order does not differentiate between the types of offences to be disclosed based on the sector for which the applicant is applying as this would be unworkable.
64. In the light of these points I accept that the introduction of an element of discretion as to what should be disclosed in relation to a particular applicant was neither practical nor sufficiently certain; not least because the way in which the discretion might have to be exercised could change even for the same person when they changed jobs. In my judgment this is the answer to what was perhaps Mr Offer's most attractive way of putting the Claimant's case: that a system which required the disclosure of a conviction for an assault which took place when he was a juvenile 30 years ago, was (in the broadest sense) unfair and contrary to beneficial aim of rehabilitation, particularly of juvenile offenders.
65. The difficulty with this submission is that almost any system which could be devised may lead to harsh results at the margins. This was recognised in R(T) in the Court of Appeal in the Court's reference to 'bright-lines' rules or sub-rules, and its recognition that 'a proportionate scheme would not require the individual consideration of each case' and 'an examination of the facts of each case'.^[7]
66. While accepting that a line could properly be drawn, Mr Offer submitted that there were three reasons why the line had been drawn in the wrong place so far as violent offences were concerned: first, because a conviction for ABH was not a signifier of dangerousness; secondly because, in any event, it was not a 'serious violent offence'; and thirdly because, even if a conviction for ABH could fall on the disclosure side of the line, the fact that a conditional discharge was imposed was a highly relevant matter which should be taken into consideration.
67. As to the first point, in my view Parliament was fully entitled to draw a 'bright line' between ABH as an offence which should be disclosed and common assault which should not. It included ABH because it was characterised in Schedule 15 as a serious violent offence and therefore one which had been designated as sufficiently serious so as to attract the dangerousness provisions. In any event, it was not an offence which was 'undeniably minor', see p.27 of Mrs Mason's Phase 1 review of February 2011.
68. The argument that it is the disposal which identifies the seriousness of the offence (in the sense of its harm and culpability) does not meet the point that Parliament was entitled to draw a line in relation to the offence itself. There are in addition a number of problems in focussing on the detail of the offence itself and the resulting disposal.
69. First, the investigation required in order to make a judgement that in a particular case the offence was sufficiently 'minor', even though a serious offence had been charged, was considered but regarded as unworkable^[8]. It would pose particular problems in historic cases where the available information about the case might not be adequate to make a fair assessment about whether the offence was serious or minor. Information about the offence would be likely to come from the offender, and facts which might reveal the relative lack of culpability and harm from the commission of the offence are matters to be taken into account by a prospective employer.
70. Secondly, as Ms Foulds has pointed out^[9], there may be a number of reasons why an individual may receive a non custodial sentence (or even a caution) for what is a serious offence: general mitigating factors may be taken into account, as well as personal mitigation and a reduction for a guilty plea. It is clear that this was an issue which was considered by Parliament in the debate on the amendments to the 1975 Order and the 1997 Act. Jenny Chapman MP gave the example of offences such as down-loading indecent images and fraud which might result in non-custodial sentences, but in respect of which there were good grounds for disclosure in every case.
71. Once it is accepted (as it must be) that Parliament was entitled to specify certain offences in respect of which disclosure must always be made, the Claimant's complaint simply becomes where Parliament drew the line between those offences and other offences. Simply to say that the line could have been drawn elsewhere does not demonstrate that the same policy objective could have been achieved by a less intrusive means.
72. Mr Offer's second point, that ABH is not a 'serious violent offence' as defined by the 2003 Act, risks confusing 'specified violent offence' and 'serious violent offence'. The 2003 Act defines a 'specified violent offence', which may be a 'serious offence' depending upon the length of the sentence of imprisonment. It does not define any offence as a 'serious violent offence', or otherwise use that term.
73. When speakers referred to 'serious violent and sexual offences' in the debates in the Second Delegated Legislation Committee of the House of Commons and the Grand Committee of the House of Lords they used a shorthand expression to cover all the violent and sexual offences which were deemed sufficiently serious potentially to attract the dangerousness provisions of Chapter 5 of the 2003 Act (and therefore appear in Schedule 15). No additional distinction was being drawn with offences which could additionally be classified as 'serious offences' as defined in section 224(2).
74. Parliament did not proceed on the basis that only 'serious offences' as defined under section 224(2), based on their disposal, were to be disclosed; it proceeded on the basis that all violent and sexual offences which were sufficiently serious to have been included in Schedule 15 in the first place (and which could attract the dangerous offender provisions) should be disclosed.
75. The Claimant's third point is that the disposal should always be a material consideration even if, otherwise, the offence might otherwise be properly characterised as a 'violent offence'. As Mr Offer put it: the best test of the seriousness of an offence is the sentence which is imposed.
76. This is essentially an argument that it is disproportionate for a conviction for an offence of ABH to be disclosed without considering the eventual disposal. Mr Offer's submission was that a non-custodial disposal should be determinative of whether the conviction should be disclosed. As such it is a refinement of the argument that I have already considered: whether Parliament was entitled to include the offence of ABH as a disclosable offence whatever the underlying facts and ultimate sentencing disposal.
77. I have already set out the history of litigation, Mrs Mason's reports, the views expressed by the IAPDCR, the legislative history and the statements of principle in the cases which indicate the need for the Court's self-restraint when considering Parliament's approach to this type of question, as well as some of the practical issues which would arise if the Claimant's approach were adopted.
78. The assessment of the advantages and disadvantages of various legislative alternatives is primarily a matter for Parliament and the existence of alternative solutions 'does not in itself render the contested legislation unjustified'; this conclusion is appropriate only where 'it is apparent that the legislature has attached insufficient importance to a person's Convention right' (Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 at §70, accepted in R (T) in the Supreme Court at [48].
79. Not the least of the difficulties would be arriving at an answer to the question: what is 'a minor offence of violence'. If this question were to be answered by reference to the sentencing disposal, it is difficult to see where the line is to be drawn: would it be between a custodial and non-custodial disposal, or between a community sentence and a fine or conditional discharge? Furthermore, once the focus is on the sentencing disposal, the type of offence may become less important. For example: the Sentencing Council's Definitive Guidelines on Assault provides for a starting point of a high level Community Order for an offence of Inflicting Grievous Bodily Harm, contrary to s.20 of the Offences Against the Person Act 1860. If disposal is always relevant to the disclosure of violent offences the 'bright line' might have to be redrawn above sentences which are more serious than ABH. Furthermore, I accept the Defendant's submission that the Claimant's approach, which would require an analysis of the facts in every case, including pre-sentence reports etc, would be disproportionate and unworkable. Not only would it require individual consideration of every conviction, but the scheme would be uncertain, since it would be unclear what was being protected from disclosure. Additionally, the availability of material information would vary in each case so that such a scheme could potentially lead to unfairness.

Conclusion

80. It follows that the Claimant's claim for Judicial Review fails and must be dismissed.

Note 1   . At [43]    [Back]

Note 2   . See also R(T) in the Court of Appeal at [37].    [Back]

Note 3   . The reference to Mr Woodcock was to the witness statement of John Woodcock, then Head of Criminal Records Policy within the Safeguarding and Public Protection Unit of the Home Office. He was one of the experts consulted by Mrs Mason as part of the IAPDCR work and had made a witness statement which was before the Court of Appeal inR(T).     [Back]

Note 4   . Ms Foulds’s witness statement at §37    [Back]

Note 5   . Ms Foulds’s witness statement at §10    [Back]

Note 6   . Ms Foulds’s witness statement at §36    [Back]

Note 7   . R (T) in the Court of Appeal at [43]    [Back]

Note 8   . Ms Foulds’s witness statement at §43    [Back]

Note 9   . Ms Foulds’s witness statement at §42    [Back]