A police disclosure scheme allowed a person concerned about a child to ask whether someone in contact with the child posed a risk. The Supreme Court considered a challenge to the guidance on consulting the person concerned before a disclosure. Its task was to assess the directions given to officers, rather than to review an individual disclosure.
A was subject to arrangements for managing risk to the public. He challenged the lawfulness of the published guidance, including its treatment of his opportunity to make representations.
His challenge concerned the Child Sex Offender Disclosure Scheme Guidance, issued by the Secretary of State under common law powers and without statutory force. The scheme, established in 2010, coordinates how police forces respond when a member of the public asks whether someone in contact with children has convictions for sexual offences against children. Forces may choose whether to join it. It operates alongside multi-agency public protection arrangements under the Criminal Justice Act 2003, including the statutory duty in section 327A to consider disclosing information about child sex offenders.
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The consultation complaint
The appellant said the Guidance did not go far enough in telling the police when they must consult him before disclosure. Disclosure of convictions or police intelligence can seriously affect the person concerned, so the common law duty of fairness, and article 8 of the European Convention on Human Rights, may require an opportunity to make representations. That duty is not absolute: child protection, urgency and other public-interest factors may justify proceeding without consultation. The precise obligation depends on the facts.
An earlier challenge had already succeeded. In 2012 the Divisional Court held that the then Guidance was unlawful because it did not require decision-makers to consider asking the subject whether he wished to make representations. From March 2013, paragraph 5.5.4 provided that, if an application raised “concerns”, the police must consider whether representations should be sought so that they had all the information needed. The Guidance also set out a three-stage test: a power to disclose, a pressing need, and a proportionate interference with article 8, together with compliance with data-protection law.
The decisions below
The High Court and Court of Appeal both rejected the challenge. The Supreme Court examined the legal test applied on appeal, while reaching the same result.
The appeal was confined to two related grounds: that the Guidance failed to reflect the importance of consulting people whose article 8 rights were at risk, and that it therefore created a significant or unacceptable risk of breaching article 8 or the common law.
When a policy is unlawful
Lord Sales and Lord Burnett took as their starting point Gillick v West Norfolk and Wisbech Area Health Authority. The courts compare the guidance, read fairly in context, with the legal obligations of those expected to follow it.
The test adopted here is whether the policy authorises or approves unlawful conduct by those to whom it is directed. “Permits”, in Lord Scarman’s formulation, means something like positively sanctions, not merely fails to forbid. The basis for intervention is not irrationality. A public authority acts unlawfully if, by issuing a policy, it positively authorises or approves unlawful conduct and thereby undermines the rule of law. There is a general duty not to induce others to violate the law, but no general duty to publish a textbook account of it.
Policies are discretionary guidance. They may be brief or detailed, and an authority often need not issue one at all. A stricter test would discourage useful guidance, force authorities to obtain elaborate legal advice, and draw courts into rewriting policies for hypothetical cases. The comparison is between what the law requires and what the policy, objectively construed, tells its audience to do. It is not a statistical inquiry into how often officials might err.
The Court identified three situations in which what a policy says, or omits, may make it unlawful. First, it may contain a positive misstatement of law which will induce a breach. Secondly, an authority under a duty to give accurate legal advice may misstate or omit the law. Thirdly, an authority which chooses to give what purports to be a full account may mislead, either by a specific error or by an omission which distorts the picture as a whole. Guidance from a Secretary of State to that department’s own staff will often fall into the third category, because staff are expected to take their legal direction from it. Even then, a workable policy may identify broad categories for closer consideration without prescribing every exercise of discretion.
Why this Guidance survived
Read as a whole, the amended Guidance passed the test. It tells police decision-makers to consider whether to seek representations before disclosure. That accords with, and does not contradict, the common law duty of fairness and article 8. It also reminds them that a disclosure decision must satisfy fairness, article 8 and data-protection requirements. The Secretary of State did not have to remove every uncertainty or specify in fine detail how the discretion should be exercised in every case. No part of the Guidance, fairly read, gave a misleading direction.
The article 8 argument that the Guidance lacked the certainty, predictability and accessibility of “law” also failed. The Guidance does not replace the common law or article 8. A force which complies with those regimes, as the Guidance encourages it to do, acts in accordance with the law. Convention case law requires reasonable foreseeability and safeguards against arbitrary decisions, not absolute certainty. Judged even on its own terms, the Guidance met that standard. A policy can sometimes help make a broad statutory discretion predictable, but that does not mean a policy is obligatory whenever a statute confers discretion.
Other suggested tests
A person treated unfairly in an individual decision may challenge that decision. A challenge to the guidance itself requires the court to examine what following it actually requires or encourages officials to do.
The Court rejected a free-standing test under which any unacceptable risk of official error would invalidate guidance. Such a test would draw the courts into judging how much additional detail would reduce the risk of mistakes.
That different principle, stated in R (UNISON) v Lord Chancellor, is the constitutional right of access to justice. Measures such as fees, or practical obstacles to legal aid or a challenge, may be unlawful if they create a real risk of preventing effective access to a court or tribunal. Evidence of likely impact may matter there. The Court said that broader claims of “systemic inherent unfairness” will generally resolve into either the Gillick principle or this access-to-justice principle.
Verdict: The Supreme Court unanimously dismissed A’s appeal. The amended disclosure guidance did not direct unlawful conduct, fail the article 8 legality requirement or impede access to justice. The Court did not decide whether any particular disclosure would be lawful.
Source: R (on the application of A) v Secretary of State for the Home Department [2021] UKSC 37
