N v HMP Dartmoor [2001] EWHC Admin 93 (16th February, 2001)

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N v. GOVERNOR OF HMP DARTMOOR [2001] EWHC Admin 93 (16th February, 2001)

1. By these proceedings the applicant challenges the decisions of the Governor of HMP Dartmoor to make him subject to the provisions of IG 54/1994 (IG54/94) notwithstanding that his relevant previous conviction was spent for the purposes of the Rehabilitation of Offenders Act, 1974. The applicant seeks to have the decision quashed, for the Governor to reconsider whether IG54/94 applies to the applicant or not and a mandatory order, if upon reconsideration the Governor does not apply IG54/94 to the applicant, to notify those bodies already informed of the applicant's previous conviction.

2. On 19 May 1992 the applicant was convicted of an offence of gross indecency with a child and was sentenced to four months imprisonment. This was a Schedule 1 offence for the purposes of the Children and Young Persons Act 1933. Under section 5 and Table A of the Act of 1974, the applicant became a rehabilitated person, on 19 May 1999, that is seven years from the date of sentence.

3. On 18 January 2000, the applicant was convicted of a number of drugs' offences and was sentenced to a term of 9 years' imprisonment. On 21 February, the Governor notified the applicant of the fact that Prison Service Instruction 41/1998 required him to minimise the risks that prisoners convicted of sexual offences may present to children under 18 years. Accordingly steps were to be taken to identify and validate the applicant's own children for the purposes of prison visits. On 14 February, the applicant was notified by the Probation Unit at Dartmoor Prison that the local authority social services department had been informed of his sentence and when he would be due for release. In terms of the Instruction:

"This is so that they can consider, in line with their responsibility under the law whether any steps should be taken to protect children with whom you may come into contact when you are discharged, or ... are temporarily released ... before then."

4. Correspondence ensued between the applicant's legal representatives and the prison service. The point which was made on the applicant's behalf was that the PSI was subject to Prison Service Order 4400 which required the governor to have regard to the provisions of the Act of 1974.

s. 1(1) ... where an individual has been convicted, whether before or after the commencement of this Act, of any offence or offences, and the following conditions are satisfied, that is to say -

a) he did not have imposed on him in respect of that conviction a sentence which is excluded from rehabilitation under this Act; and

b) he has not had imposed on him in respect of a subsequent conviction during the rehabilitation period ... which is excluded from rehabilitation under this Act;

then, after the end of the rehabilitation period ... that individual shall for the purposes of this Act be treated as a rehabilitated person in respect of the first-mentioned conviction shall for those purposes be treated as spent.

s. 4 (1) Subject to sections 7 and 8 below, a person who has become a rehabilitated person for the purposes of this Act in respect of a conviction shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction; and, notwithstanding the provisions of any other enactment or rule of law to the contrary, but subject as aforesaid-

(a) no evidence shall be admissible in any proceedings before a judicial authority ... to prove that any such person has committed or been ... convicted of or sentenced for any offence which was the subject of a spent conviction; and

(b) a person shall not, in any such proceedings, be asked, and, if asked, shall not be required to answer, any question relating to his past which cannot be answered without acknowledging or referring to a spent conviction or spent convictions or any circumstances ancillary thereto.

(2) Subject to the provisions of any order made under subsection (4) below, where a question seeking information with respect to a person's previous convictions, offences, conduct or circumstances is put to him or to any other person otherwise than in proceedings before a judicial authority-

(3) Subject to the provisions of any order made [none has been] under subsection (4) below,-

(a) any obligation imposed on any person by any rule of law or by the provisions of any agreement or arrangement to disclose any matters to any other person shall not extend to requiring him to disclose a spent conviction or any circumstances ancillary to a spent conviction ...

(b) a conviction which has become spent ... shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing him in any way in any occupation or employment.

(6) For the purposes of this section and section 7 below "proceedings before a judicial authority" includes, ... any of the ordinary courts of law, ...

[Section 5 and Table A provides for a seven year period before rehabilitation for the applicant]

(a) any right of Her Majesty, ... to grant a free pardon, to quash any conviction or sentence, or to commute any sentence:

(c) the issue of any process for the purpose of proceedings in respect of any breach of a condition or requirement applicable to a sentence imposed in respect of a spent conviction; or

(d) the operation of any enactment by virtue of which, in consequence of any conviction, a person is subject, otherwise than by way of sentence, to any disqualification, disability, prohibition or other penalty the period of which extends beyond the rehabilitation period applicable in accordance with section 6 above to the conviction.

(2) Nothing in section 4(1) above shall affect the determination of any issue, or prevent the admission or requirement of any evidence, relating to a person's previous convictions ...

(3) If at any stage in any proceedings before a judicial authority in Great Britain ... the authority is satisfied, in the light of any considerations which appear to it to be relevant (including any evidence which has been or may thereafter be put before it), that justice cannot be done in the case except by admitting or requiring evidence relating to a person's spent convictions or to circumstances ancillary thereto, that authority may admit or, as the case may be, require the evidence in question notwithstanding the provisions of subsection (1) of section 4 above, ...

[Note that (cc) was added by virtue of the Children Act 1989 s 108(5) Schedule 13 paragraph 35].

1.1.1 This Order sets out a range of measures to minimise the risks that certain prisoners, particularly those convicted of, or charged with, sexual offences against children may present to children whilst in prison.

1.1.3 For the purposes of this order, in accordance with the United Nations Convention on the Rights of the Child, references to children or minors means persons under 18 years of age.

1.1.5 Prisoners who pose a risk to children must be prevented, as far as is reasonably practical, from making unauthorised contact with any child.

* identify all prisoners who have been convicted of, or are charged with, any of the offences, involving a minor, listed in Annex A. This is a starting point for identifying prisoners who present a potential risk to children:

* consider the prisoner's previous convictions paying due regard to the provisions of the Rehabilitation of Offenders Act 1974 ...

RELEASE OF PRISONERS CONVICTED OF OFFENCES AGAINST CHILDREN OR YOUNG PERSONS UNDER THE AGE OF 18

... These arrangements are being separately drawn to the attention of Chief Probation Officers and the Directors of Local Authority Social Services.

* extend the scope of the current arrangements ... to include prisoners convicted of offences against children or young persons irrespective of where those offences were committed. ...

* involve informing the prisoner verbally and in writing that the arrangements as outlined in this instruction will apply to him or her. This is to bring these arrangements into line with the prison Service's policy on openness

4. The new arrangements are intended to provide a framework to enable the Prison Service to work more closely with the local authority social service departments and the Probation service in seeking to protect children who may be at risk ... . This framework links in with "Working Together Under the Children Act 1989": guidance on inter-agency-co-operation in respect of child protection ... .

5. .... the new arrangements provide for the Prison Service to inform prisoners who have been convicted of offences against children or young persons that the arrangements outlined in this Instruction will apply to them. They also provide for the Prison Service to notify and/or consult with local authority social service departments and the Probation service at the following points during a prisoner's time in custody:

* at the start of a period of custody - notifying the local authority social services department and the probation Service when a prisoner who has just been ... has in the past been convicted, of an offence against a child ... is received into custody. ...

RELEASE OF PRISONERS CONVICTED OF OFFENCES AGAINST CHILDREN ... UNDER THE AGE OF 18

5. The types of offences against children or young persons to which this Instruction applies are set out in Schedule One to the Children and Young Persons Act 1933 and are usually referred to as "Schedule One offences". Briefly they include:

6. ... In relation to unconvicted prisoners, the new arrangements apply as follows:

* any prisoner with a previous conviction for any of the offences set out in paragraph 5 above

8. The Rehabilitation of Offenders Act 1974 provides for certain convictions to become "spent" if the offender is not convicted of a further indictable offence. A spent conviction does not normally have to be disclosed for most purposes, eg: applying for a job, taking out insurance etc. The Act does not, however, preclude the disclosure of spent convictions provided it is in the course of official duties. Subject to this requirement, governors may disclose information about Schedule One offenders' spent convictions to local authority social services departments and the Probation Service under the arrangements set out in this guidance.

10. It will be for the initial receiving establishment to determine whether a prisoner is a Schedule One offender ... In relation to:

* previous convictions, prison staff should go through the prisoner's previous convictions, and any accompanying papers, to seek to identify whether or not the prisoner has in the past been convicted of a Schedule One offence. It may, however, often be difficult to tell or check whether or not they are Schedule One offenders. Prison staff are therefore only required to take action in accordance with this instruction where it is obvious from the nature of the previous conviction or from the accompanying papers that it is a Schedule One offence.

On behalf of the applicant, it was submitted that the defendant (governor) was not empowered to activate IG 54/94 since it was in conflict with the provisions of s.4(1) of the Act of 1974 because of the consequences to the claimant of disclosure of the spent conviction to the probation and social services. Secondly, it was submitted that paragraph 8 of the Guidance Notes which accompany IG 54/94 conferred a discretionary power but not a duty in the Governor to disclose spent convictions. Finally, it was submitted that if the construction of s.4(1) for which the claimant contended was correct, such disclosure would not be in accordance with the law and could not be justified by the Governor so as to save him from infringement of the claimant's rights under Article 8.1 and 8.2 of the European Convention on Human Rights. In any event, it was submitted that even if the Governor could properly claim that disclosure was justifiable under Article 8.2 `in accordance with the law' the decision was still wrong as being a disproportionate response. The submission proceeded from the single premise that disclosure of the previous conviction in purported compliance with IG/94 meant that the claimant was being treated as if his conviction was not spent, contrary to ss.1(1) and 4(1) of the Act of 1974. Attention was drawn to the differences between PSO 4400 which did provide for the Governor to have a discretion whether or not to apply its provisions to a qualifying prisoner and IG/94 which, on the Governor's approach, gave him no discretion whether or not to apply its provisions.

7. As to s.4(1) of the Act of 1974, it was submitted that, contrary to the approach of the Governor, the words "in law" meant "for all purposes". As such, they added little to, and subtracted nothing, from the plain meaning of the sub- section. The words "all purposes in law" were not to be restricted to proceedings before a judicial authority. Accordingly the Governor, consistently with s.4(1), was not permitted to treat the applicant adversely when deciding whether or not to grant home leave, temporary release and the like. It was accepted that s.7 prescribed for limitations on rehabilitation under s.4(1) but it was to be noted that the exception in 7(2)(cc) only applied to legal, and did not extend to administrative, proceedings. Likewise, the discretionary exception in s.7(3) also applied to proceedings before a judicial authority.

8. The governor could not rely on s.9(2) as permitting him to divulge the spent conviction. The section provided for criminal sanctions against authorised disclosure. To read the saving proviso

as permitting disclosure from one person to another when each was performing official duties was, quite simply, an unacceptable interpretation of the sub-section.

9. Reference was made to the decision of Whitford J in X v Commissioner of Police of the Metropolis [1985] 1 WLR 420 in which he held, in a private law action, that the transmission of specified information about spent convictions communicated by the defendant to the Paris office of Interpol did not constitute the commission of an offence under s.9(2) of the Act of 1974. The decision was based on the proposition that the disclosure was in the course of official duties. It was submitted, that that decision should not be followed because the reasoning was unclear. The judgment was not reserved. The relevant passage, at p.426 reads

"What is the mischief against which the section is being directed? Quite plainly ... it is concerned with situations in which persons, who quite rightly become aware of specified information in the course of their official duties, may for some reason or another, and in no sense in any way in connection with any duty arising out of their station or office communicate to some third party that specified information ... but under section 9, in circumstances in which the disclosure is ... in the course of the duties of the person disclosing, no criminal offence is committed."

I respectfully think that the imperfections and omissions in this passage of the judgment are plain to be seen.

10. In that case, it was submitted, the mere transmission of the specified information did not impair any of the rights which were available to the plaintiff. In the present case, the communication of the spent conviction to social services were detrimental to the applicant's rights as it might affect temporary release, parole and the like.

11. Paragraph 8 of the Notes for Guidance: The point here was whether the expression "Subject to this requirement (that is section 9(2) does not ... prevent disclosure of spent convictions ... in the course of official duties), governors may disclose information" creates a mere power as in `has power to' or creates a power coupled with a discretion whether or not to exercise that power should be exercised. The submission was that the alternative had to be preferred. Accordingly, to the extent that the Governor considered himself to be bound to make the disclosure he had erred. No exceptions to the wide provisions of s.9(2) have been made by subordinate legislation under s.9(5).

Here it was not contested that the Secretary of State had power to issue directions for the general management of prisons and it mattered not whether such power was derived from the common law or under the Royal Prerogative. Prima facie Article 8.1 was breached since publication or communication of the previous convictions constituted infringement of the applicant's right to respect for his private life. The consequences of the breach will impact on the applicant adversely to his interests, as already noted. Consequently, it was for the Governor to bring himself within the provisions of Article 8.2 if he could. It would follow that to the extent that the Governor did not have power to activate IG 54/94, his actions could not be brought within Article 8.2 since they were not "in accordance with the law". In this context the powers of review over executive decision which are available to the court since 2 October 2000 have been subject of helpful comment by Lord Phillips MR and Laws LJ in the case of R v Secretary of State for the Home Department ex parte Mahmoud (8 December 2000). In giving the first judgment Laws LJ said (paragraph 33)

"when the court is indeed applying the Convention as municipal law, we shall no doubt develop a jurisprudence in which a margin of discretion (as I would call it) is allowed to the statutory decision maker; but in the case of those rights where the Convention permits interference with the right where that is justified by strict criteria (Articles 8-11, paragraph 2 in each case) its length will no doubt be confined by the rigour of those criteria in light of the relevant Strasbourg case-law and the gravity of the proposed interference as it is perceived here."

" When anxiously scrutinising an executive decision that interferes with human rights the Court will ask the question, when applying the objective test, whether the decision-maker could reasonably have concluded that the interference was necessary considering the test of necessity in the relevant context, the Court must take into account the European jurisprudence in accordance with the 1998 Act. "

13. So, it was submitted that the words in Article 8.2 "necessary in a democratic society" mean that by argument or other means of communication the interference with the right (of respect for private life) must be shown to be objectively justified. Thus, the position of the Governor in the present case is that his decisions are precautionary in nature because the independent (human) rights of children are engaged. But the applicant contends (1) that there is no evidence that he represents a current risk to children; (2) there is no evidence that IG 54/94 contemplated the provisions of Article 8.2; or (3) that the act of disclosing the spent conviction would constitute a clear contravention of the purpose of the Act of 1974. That purpose was to protect the rights of the rehabilitated person and those outweighed the rights of society in general and children in particular.

14. For the Governor it was accepted that he did not constitute "judicial authority" within section 4(6) of the Act of 1974, consequently there was no relaxation in his favour from the restrictions in s.4(2).

15. Detailed submissions were made as to the proper construction of s.4(1), as to which see below. Submissions were made as to the international, historical and statutory context of IG 54/94 which assist in understanding the reasons why s.7(2) (cc) was inserted into the Act of 1974 by the Children Act 1989. It is convenient to consider these in turn at this stage.

16. The starting point is the International Convention on the Rights of the Child adopted by the General Assembly of the United Nations 1989 to which the United Kingdom was a signatory; see Cmd 1976. It came into force on 15 January 1992. Under the Convention, signatories undertook to implement all appropriate legislative and administrative measures to ensure that children receive such protection and care and that the best interests of the child are a primary consideration. Article 6, in particular, involves a recognition by States that not only does a child have an inherent right to life (cp Articles 2,3 and 8 ECHR) but also that States should ensure the survival and development of the child to the maximum possible extent (cp Part V of the Children Act 1989). Expressly, it is provided by Article 19 that by taking all appropriate measures States are required to afford all protection to children "from all forms of physical or mental violence, injury or abuse, ... maltreatment or exploitation, including sexual abuse". Under ECHR there is a positive obligation on the state to take measures to secure the rights and protection of children. In England and Wales, the agencies charged with the performance of this duty are the social services departments of local authorities. It was submitted that social services' departments can only fulfil this duty if they are provided with information concerning convictions, spent as well as otherwise, of persons living in the areas of their responsibility. As between prison governors and social services it cannot seriously be in doubt that the latter are in the best position to make an informed assessment of risk in such cases.

It is axiomatic that, in general terms, meaning should be attributed to words where they appear in a statute. On the applicant's construction of s.4(1) the words "for all purposes in law" are devoid of content or meaning. For the Governor it was submitted that those words are properly words of limitation and mean "for all legal purposes" or purposes required by the law. Examples of this are to be found in s.4(1) (a) and (b) which both contain references to proceedings before a judicial authority. Support for this approach is also to be found in s.4(3) which excludes from contractual obligations the duty to disclose spent convictions. Furthermore s.7(1) and (2) in their entirety are concerned with legal purposes which are expressly exempted from the effect of rehabilitation under S.4(1). Of special relevance is the exemption in s.7(2) (cc) relating to any proceedings under the Act of 1989.

18. Viewed from the point of view of social services' responsibilities towards children, it would, in general terms, be absurd if they were to be denied access to information necessary to them for the proper exercise of their statutory functions, among which may be the need to take steps under Part V or the Act of 1989. On the applicant's suggested construction of s.4(1), this would be the effect of the Act of 1974. In the event that it was considered necessary to invoke that part of the Act by commencing proceedings, it would be even more absurd if they were to be denied access to the very information to which they would need access for thre purposes of deciding whether to institute and what form those proceedings should take. But how do social services gain access to that information otherwise than through the operation of IG 54/94. If it is accepted that the provision of information by the Governor to social services is not caught by s.4(1), because, as suggested, that is not a `purpose in law', then there is no obstacle to the common sense solution to the problem. A further example of the difficulty which the applicant's suggested construction would have, can be found in the provisions of s.2 of the Sex Offenders Act 1997. Under this section a person subject to notification requirements has to provide specified information to the police. Clearly, one of the purposes of that requirement is to enable the police to make sensible use of the information so provided which must include an ability to inform social services appropriately. On the applicant's construction of s.4(1) this would be impossible.

19. Finally, courts should generally favour the construction of a domestic statute in a manner which makes it compatible with the United Kingdom's international obligations, as to which see above. if the applicant's submissions were to be accepted, social services' obligations in the field of child protection in pursuance of both their national duty under the Act of 1989 and also under the Convention to the Rights of the Child would be rendered more difficult. Of greater relevance may be the position which now obtains under s.3(1) of the Human Rights Act, 1998 by virtue of which municipal legislation

"must be read and given effect to in a way which is compatible with the Convention rights."

If, otherwise, there was any doubt as to the true construction of s.4(1) of the Act of 1974, I would be driven to hold that the impact of Articles 2,3 and 8 of the ECHR coupled with the United Nations Convention compelled the same interpretation.

20. In the event, my decision is that s.4(1) does not prohibit the communication of specified information relating to the applicant's spent conviction by the Governor to appropriate department of social services. There was dispute as to the proper interpretation of s.9(2) of the Act of 1974. I entertain no doubt whatever that such communication is expressly permitted by that section. It would, of course, be quite otherwise if the communication was made for an extraneous purpose. It follows that I respectfully agree with the decision of Whitford J above. I am confident that I heard fuller argument than he did.

21. b) Does IG 54/94 give a discretionary power to governors whether or not to disclose convictions whether spent or not for Schedule 1 sex offences:

It will be recalled that the instruction, as it stands, provides that Prison Service will inform

" prisoners convicted of offences against children or young persons that the arrangements outline ... will apply to them."

22. As a consequence, provision is made for communication by the Prison Service to social services of the specified information. It will be recalled that paragraph 4 of the guidance explains the purpose of the instruction, namely inter-agency co-operation in respect of child protection. On a plain reading of IG 54/94, it is clear that consonant with the purpose, identified in the instruction itself, quite independently from the matters discussed in paragraph 21 above, no discretion is conferred on governors whether they should disclose or not.

23. On passing to the Notes for Guidance, paragraph's 6 and 7 unambiguously stated that governors "should" apply the new "arrangements (i.e. those set out in IG 54/94). Paragraph 10 of the Notes requires prison staff to examine the prisoner's previous convictions in order to ascertain whether he is a Schedule 1 offender or not, it ends with the statement that staff

" are only required to (act) in accordance with this instruction where it is obvious ... that it is a Schedule 1 offence."

24. It may be that although classified as a Schedule 1 offender, the underlying offence may not justify the application of the full rigour of the measures contained in the instruction. Accordingly, in the Guidance Notes, provision is made for a prisoner, who wishes so to contend, to be informed that he can make representations to social services why the child protection measures should not apply, or be applied, to him; see paragraph's 16, 17, 18 and 19. The only difficulty is created by the inclusion of the single word "may", in paragraph 8 of the Guidance Notes. The applicant's submissions on this point have to be rejected. They proceed from a misunderstanding or misreading of the paragraph in question. The paragraph is quite correctly drawing attention to the provisions of s.9(2) of the Act of 1974 in the context of the prohibition against disclosure except for those "in the course of official duties." It continues

To put it simply, the sense of the paragraph, contrary to the prohibition of disclosure while not performing official duties, is that governors are free (i.e. do have power) to disclose, provided that it is done in the course of official duties. The construction for which the applicant contends would lead to bizarre results which are manifestly at odds with the purpose and coherence of the scheme introduced by IG 54/94 and with other provisions in the Guidance Notes. That scheme, as has been seen, is designed as part of "legislative, administrative (and) social measures" to protect children as required by the Treaty of which the United Kingdom had become a signatory prior to the promulgation of IG 54/94. Consideration of the logic of these arrangements demonstrates the good sense of communicating information to those best qualified to evaluate it (social services) and who can then take a decision (following representations from the prisoner) which will or may affect the prisoner's rights.

25. It would have been a strange result indeed if notes for guidance had had the effect of modifying the provisions of the instruction. As by now should be evident, I hold against any such construction and this limb of the applicant's case also fails. The Governor did have no discretion available to him to do otherwise than as he did.

Given that the contest here arises in respect to the savings for public authorities contained in Article 8.2, the area of concern is whether the claimant can prove that the terms of the instruction outweigh the margin of discretion available to the decision maker; see Mahmoud above. Always assuming that there was a discretion, the preponderance of the factors in support of the Governor's need to take the steps he did is manifest. To be balanced against them is the invasion of privacy of the applicant. As has already been seen, however, that invasion is not inevitable if, having duly considered the particular circumstances of the applicant's case, social services conclude that they need have no continuing anxieties in relation to his contact with children outside prison. As is plain, and inevitable, owing to their vulnerability children are accorded a special place in terms of international Conventions (both UN and ECHR). It is their human rights which have a high need of domestic protection. Against that is the impact of the Governor's decision which would not necessarily lead to any adverse effect on the prisoner's rights. If there is then aggregated with those internationally recognised rights, the state's obligation to afford children every protection, the balance is ineluctably in terms of necessity on the side of the Governor's decision. My decision is accordingly.

27. It follows that the applicant fails in respect of all these bases upon which he puts his claim and it must be dismissed.

MR JUSTICE TURNER: In this case I have made available to the parties the draft of the judgment I propose to hand down. I have received no editorial suggestions or amendments. In those circumstances I now formally hand the judgment down.

MR JAY QC: I do not know whether my learned friend has any application for costs. The position is the applicant, or rather the claimant, has the benefit of legal aid taxation and I would ask your Lordship to grant a legal aid taxation of our costs.

MR JUSTICE TURNER: I cannot do that, Mr Jay. It has to be detailed assessment these days.

MR JUSTICE TURNER: Yes, but subject to lodging of the certificate, that may you may have. Do you happen to know whether the certificate has been lodged?

MR JAY QC: My Lord, yes. My solicitors are competent solicitors. I have seen the certificate. I am sure they have lodged it.

MR JUSTICE TURNER: Well if not, I make the order, provided it is lodged within 48 hours.

MR PICKFORD: My Lord, the defendant will ask for an order for costs against the applicant, determination of liability to be postponed until such time as the court thinks fit.

MR JUSTICE TURNER: Thank you very much. Well, yes, I think Mr Jay has already conceded that point. Yes, thank you.

	N	Applicant
	- and -
	THE GOVERNOR OF HMP DARTMOOR	Defendant

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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> N v HMP Dartmoor [2001] EWHC Admin 93 (16th February, 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/93.html Cite as: [2001] EWHC Admin 93

England and Wales High Court (Administrative Court) Decisions

N v. GOVERNOR OF HMP DARTMOOR [2001] EWHC Admin 93 (16th February, 2001)