Policing Restrictions
Cases
EMI Records & Ors -v- Eircom Ltd
[2010] IEHC 108 [2010] 4 IR 349
JUDGMENT of Mr. Justice Charleton delivered on 16th April, 2010
1. A settlement has been effected in the litigation between the parties. Its purpose is to diminish the theft of copyright material over the internet. The infringers are to have their service cut off. This judgment concerns the compatibility of what the parties have agreed in relation to data protection legislation. The substance of the original case concerned the stealing of copyright-protected sound and video recordings over the internet, mainly by peer-to-peer sharing groups. Eircom Limited, the defendant, is an internet service provider and some of their customers, among others, engage is this activity. Nothing suggests any willing infringement of copyright by Eircom, or that they were in any way a party to copyright theft. That, however, does not mean that an injunction cannot justly and conveniently be granted against a conduit for copyright infringement; a point to which I will return. The plaintiffs are big players in the music and film industry. They represent sound recording and motion picture artists who have assigned their copyright in new original creative work to them in exchange for financial backing, promotion and the protection of a commercial organisation to further their interests. Remuneration for that kind of work is shrinking by reason of copyright theft over the internet. I will describe the process shortly.
2. Since the parties in this case resolved their differences, after eight days of evidence, it was not necessary for the Court to make an order. On 28th January, 2009, terms of settlement were set down in writing and filed in court. The implementation of that settlement raises issues under the Data Protection Acts 1988 and 2003 and, in consequence, the terms agreed must be scrutinised by the Court to analyse its compliance with that legislation. Because a large amount of computerised data was involved, one of the parties communicated with the Data Protection Commissioner to seek his advice. He, in turn, raised three issues as to why the settlement might be doubted to conform with the legislation as to the manner of its implementation. By order of Kelly J. made in the Commercial Court motion list, and dated 18th January 2010, I am asked to rule on these issues. Hence, this judgment is given after argument by the parties to the main case. The Data Protection Commissioner did not appear because of a concern over indemnity as to his costs. I will shortly recite each issue and my conclusion thereon but, firstly, I need to refer to some background.
Background
3. The problem faced by the plaintiffs is extremely serious. Many talented artists have assigned copyright in their musical and cinematic work to them. In common with many other occupations, those working in the music and film industry may be at the very top of the earnings ladder or at the bottom without even a foot on the first rung. Most will be somewhere in between. It is of no interest to me as to whether people hold views that the music and film industry either over-rewards or unfairly-exploits its artists. Copyright is a universal entitlement to be identified with and to sell, and therefore to enjoy, the fruits of creative work. It applies to everyone who manages to produce anything copyrightable from a song, to a telephone directory, to a symphony, to a film. Were copyright not to exist, then the efforts of an artist could be both stolen and passed off as the talent of another. Were the artist not entitled to exploit her or his creation by preventing others from copying it without permission, usually for a fee, then the fruits of moments of inspiration worked out through weeks of endeavour and representing, sometimes, the distillation of some fundamental experience of life, would bring no reward, perhaps not even applause. Even if an artist won acclaim, it alone would not keep body and soul together. Examples of what can occur where copyright protection is absent used to be found as notorious examples of unfairness in history rather than as a contemporary situation that has developed because of the abuse of the internet. When Jan Sibelius, a Finn, penned his Valse Triste, Finland was part of the Russian Empire, not a party to the copyright convention, and the great composer received nothing for what was then his most popular work. The three early ballets of Igor Stravinsky, a Russian, suffered the same fate; though on moving to the West, the composer re-orchestrated them and republished them gaining copyright but only in that form. No reasonable person doubts the injustice of that situation. The law does not doubt it either.
4. When the internet gained wide currency in the 1990s many of its adages began to believe that a new form of reality had been created. Some felt that it should be subject to no rules since, as it was not based in a particular country, but as its name implies is a world-wide web of communication, unlike the previous means of communication through the post, by telephone, through television or through films, it seemed to be impossible to subject to local regulation. That is not so. Nor should it be. In common with other aspects of life, the internet has both a positive and a dark side. On the positive side, its aids free communication; it opens up avenues of knowledge so that it has become a centre of learning in itself; it furthers public debate; and has established the swiftest and most far reaching form of communication that humanity has known. It is, on the other hand, also thickly populated by fraudsters, pornographers of the worst kind and cranks.
5. The internet is only a means of communication. It has not rewritten the legal rules of each nation through which it passes. It is not an amorphous extraterrestrial body with an entitlement to norms that run counter to the fundamental principles of human rights. Since the early days of the internet, and increasingly as time has gone on, copyright material has been placed on the World Wide Web by those with no entitlement to share it. There, it is downloaded by those who would normally have expected to pay for it. Among younger people, so much has the habit grown of downloading copyright material from the internet that a claim of entitlement seems to have arisen to have what is not theirs for free.
6. How is this done? The internet consists of millions of connected computers with linkages established by many thousands of internet service providers operating very large computers. The defendant Eircom is one of these. Normally, an internet service provider could not be expected to control the contents of what flows over the communications channel between its customers, who pay them for internet service, and others on its network, or elsewhere on the World Wide Web. Before this case, Eircom did not monitor its customers. It provides a service and lets the customer proceed with enjoying the benefits of that. This freedom does not exempt the customer from criminal or civil liability. There is nothing in the criminal or civil law which legalises that which is otherwise illegal simply because the transaction takes place over the internet. Child pornography, for instance, remains child pornography whether sent by post or digitally transmitted.
7. Those who wish to obtain, or to share, copyright material which belongs to others, without acknowledgement of their rights and without payment, frequently join a peer-to-peer network. This may consist of a swarm of thousands of computers which are all on line at any one time and connected through internet service providers. To obtain the relevant software for downloading complex material in musical or cinematographic form, an internet user can go to an illegal site. Legal downloading of free material is also becoming increasingly popular on sites hosted by, for instance, national radio and television broadcasters. Many television and radio networks store material for legally downloading for free from their television or radio archives, or for listening or seeing again, using an ‘i-Player’ system, or something similar. This can be accessed on their websites, and links to the relevant software as a free service are often provided. The software for peer-to-peer illegal downloading, on the other hand, is obtained from such sites as Pirate Bay. That is only an example. As I understand the evidence that I heard, internet sites like that one supply two basic things. Firstly, they will allow downloading of the relevant software for peer-to-peer illegal file participation. Secondly, those so inclined can learn from such sites what swarms of active computers contain the material that they want to filch. Then, a person so inclined will open up a new file on their computer with the relevant newly-downloaded software. This enables a peer-to-peer download. It also makes each downloading participant an uploading participant whereby others in an active swarm will load from each other participant. This happens because of the peer-to-peer software and it happens whether a participant wants it to happen or not. Whatever is within the peer-to-peer file that is necessary for illegal downloading on a computer will be copied as a participant downloads and will be sent over the internet, through the internet service provider, and into, and from, the participant’s computer. This is a complex activity and used to be very slow. Using high speed broadband quickens the process. That which used to take hours can sometimes now be completed in minutes. As to a song or a video, it does not all come from, nor is it all taken from, the same participant. Again, reviewing the evidence that I heard in this case, it seems to operate like this: each digital encoding of a musical or cinematographic work is split up into miniature files. These may last a couple of seconds in real time when played. They, as well as being in digital language, have a beginning and an end code in digital format. Since internet technology is partly about the shortest route of communication, the peer-to-peer software enables the illegal downloader to obtain a few seconds here, there and elsewhere from participating swarms. The overall file of the work will be identifiable in the beginning and end codes and within the intermediate codes. These will arrive randomly, a bit like a computer image building up on the screen, and be put together by the computer software docking the beginning and end codes of each of the few seconds into a complete and chronologically correct entity. While a participant is downloading this material, each participant’s own computer engages with the swarm so that every music song or video in the relevant file of each individual computer becomes available to thousands of other users around the world. They will mutually download, and so illegally share material, in the same way.
8. In general, no one will come knocking on the door of any of these people. Up to the terms of settlement agreed between the parties in this case, moreover, no internet service provider had apparently agreed to attempt to tackle this copyright-repugnant situation of their own volition. From the point of view of the participants, everyone seemed to win; except for the creators of original copyright material who were, and are, utterly disregarded. It is only common sense that this attraction of free, but illegal, downloading of the latest songs and videos made the sale of internet access attractive. Those who wished to filch the copyright material of others had to provide others with material to be filched from them. The more the participants, it seems, the easier the internet route. The only downside to participation, mentioned in the course of the hearing, is that the mischievous side of the human personality, containing a repulsive aspect as well as an attractive and humorous one, has also come to the fore over the internet. Using these networks exposes participants in the swarms to severe computer-crippling viruses.
The Settlement
9. Because this process takes place over the internet in generally unencoded form, software has been developed to detect illegal downloaders. One such was referred to in evidence as DtecNet. This is one of the current technology market leaders, but if encoding of illegal sharing of copyright material increases – it is now in its infancy – technology for detection will have to forge ahead also. Companies operating this or similar services are hired by the plaintiffs. Under the terms of the settlement, these companies tell the plaintiffs that a particular computer has been involved in illegal file sharing of its copyright material. This information is passed by one of the plaintiffs to the defendant Eircom, as the internet service provider. It then informs its subscribers that they have been detected infringing copyright. If there is a second occasion of illegal downloading, Eircom is obliged, when so informed, under the settlement to write to the subscriber warning them that unless that sort of infringement ceases, they will be disconnected from general internet service. This disconnection does not apply to any telephone or television service that a subscriber gets over their internet facility. On a third infringement, that discontinuance is implemented by Eircom: the subscriber is taken off service except for phone or television internet access. This is a serious sanction. Some would argue that it is an imposition on human freedom. There is no freedom, however, to break the law. Further, while it is convenient to have internet access at home, most people in Ireland have only to walk down to their local town centre to gain access for around €1.50 an hour. The parties also agreed, under the settlement, to negotiate a protocol setting out the details of the precise procedure for implementing this settlement.
10. Since it was likely to be deeply unfair that only Eircom with about 40% of the market share, as the defendant in these proceedings, should bear the burden of this settlement, thus activating the winds of market forces to drive customers towards Eircom’s competitors, the plaintiffs agreed to initiate similar proceedings against other internet service providers in the State. This, I understand, has been done. That case is in the Commercial Court list for hearing on 10th June, 2010. In addition, Eircom agreed not to oppose an application by the plaintiffs to injunct the Pirate Bay site. I have already given judgment on this ex tempore, closing down access to that site through Eircom; see EMI v. Eircom, [2009] IEHC 411, (Unreported, High Court, Charleton J., 24 July, 2010).
The Protocol
11. The settlement was always going to be difficult to implement precisely. The parties agreed, as part of it, to negotiate a protocol governing their respective sides of the bargain. I wish to refer to the main points. There has to be an education and awareness campaign by Eircom, directed at its internet customers, about the abuse of peer-to-peer software, securing broadband installation in the home and how signs of copyright infringement might be detected by the main householder. A lot of this seems predicated as likely to happen at teenager or slightly older level. The implementation of the settlement was to be phased in by a three month pilot programme; because this was the only way the parties could see how things were working and to analyse how practical their measures might be proved to be. There were to be exceptions to the ultimate sanction. Some people might be depending on their broadband internet access for medical services and others for their livelihood. Where an infringement took place within a business, but contrary to the internet use policy within the organisation, communication by way of admonition might replace the ultimate measure of shutdown. Other categories of exception might grow over time. In terms of privacy, there are two provisions which are relevant to the data protection legislation to which I shall shortly turn. Under para. 2.10 of the protocol, where an exception to shut down after a third infringement occurs in the manner provided for, Eircom will only communicate with the relevant plaintiff to the effect that “this IP address does not fall with the terms of the protocol”. Under para. 2.3, notification by one of the plaintiffs to the defendant that there has been an illegal downloading of their copyright material consists of details of the copyright holder (which could be, for example, a particular songwriter); that a breach of copyright has occurred; details of the relevant album or song or video; the IP address that has been detected in infringing copyright; and other details that show proper investigation, namely, the relevant software used and the digital fingerprint of the copyright material used.
12. Then one moves on to the three infringement levels under the protocol. Nothing in these provisions changes one basic fact. Neither DtecNet, or any similar service of detection, nor any of the plaintiffs whose copyright material is being infringed would ever know through this process that the infringer is a particular person living in a particular place in Ireland. What they do know is that a particular IP address has been involved in the downloading. An IP address is the number given to a computer from an internet service provider when it receives internet access. The IP number electronically identifies the user of the internet. Banks of numbers for IP addresses are produced by an international organisation and these, in turn, are provided to internet service providers. One can find out by looking at the IP number, I understand, who the internet service provider is. What internet service provider is given what bank of thousands or millions of IP numbers is not kept a secret anywhere. Since each internet service provider will have, in turn, many thousands of customers, one is not moving much closer to finding out the identity of an internet abuser by knowing the copyright infringing IP address was assigned to that company. That number will probably give you no more than an indication of the domicile of the computer. Further, I am convinced, on the basis of the affidavit evidence before me, that the plaintiffs have no interest at all in using this process to find out who the copyright infringers are. Rather, what they are interested in is having the protocol work so that the plague of copyright infringement may be undermined.
13. On the first infringement, the bill payer at the IP address will be told with their bill that an infringement was detected at such and such a time in respect of a particular song, or whatever it is, that is subject to copyright. This enables them to reflect on their conduct or to communicate with the rest of their household. On a second infringement, a formal letter is received by the customer from Eircom. This is to the same effect, but it will presumably be couched in stronger terms than the warning with the bill. The customer can only go to level 2 after fourteen days have passed since the first infringement. As I understand it, these communications may also contain information concerning how to keep one’s computer secure from, for instance, the person next door and other continuing education tips. When a third infringement notification is received by Eircom from one of the plaintiffs, after a further fourteen days, Eircom must then review all the evidence. This is done on a human basis; the first two levels operating automatically. A termination notice is then issued to the customer giving fourteen days before cut-off. The customer is then entitled to make representations to Eircom, as the internet service provider, over the telephone or through the internet. The user’s representation is considered by Eircom, not in consultation with the plaintiffs, under para. 2.8 of the protocol. Private matters involving extenuating circumstances, so as to call into play one of the exceptions, or material whereby it is claimed as a matter of fact that the infringement has not taken place at all, must be considered by Eircom. Then, if that does not cause the consequences of the protocol to be diverted or postponed, the customer is cut-off from internet service.
The Eircom Subscriber Contract
14. Eircom provides internet service to its customers based on a written contract. This document is very strong in the pact which a customer makes with Eircom not to use the internet for illegal purposes. Under clause 2.1 of the agreement, the customer agrees to avail of the facility of internet service subject to the terms and conditions set out in the written document. Among the matters which the customer has to agree to is not to use the facility to create, to host, or to transmit obscene or racist material; clause 5.3. The customer must agree not to use the facility of internet access to infringe the propriety rights of any software; clause 5.6. Under clause 5.10, the customer agrees that the internet service can only be used in accordance with the acceptable usage policy posted in clear terms on www.eircom.net. This site displays a clause very similar to clause 5.5 of the contract which, because of its importance to the issues which follow, I should now quote:-
“Customers may not use the facility to create, host or transmit material which infringes the intellectual property rights including, but not limited to, the copyright of another person or organisation”.
15. Clause 7.1 provides that the agreement may be suspended or terminated by Eircom for breach of its terms. It is important to recall that it is one of the basic functions of the courts under the Constitution to give effect to lawful agreements.
The Issues Raised
16. By letter dated 4th December, 2009, the Data Protection Commissioner wrote to the solicitor for the plaintiffs raising a number of concerns as to the lawfulness of the settlement terms. These were later, on the 15th January, 2010, encapsulated by Philip Lee, solicitor, in a precise form for which the Court is grateful. These are the three issues:-
“1. Do data comprising IP addresses, in the hands of EMI or its agent(s), and taking account of the purpose for which they are collected and their intended provision to Eircom, constitute “personal data” for the purposes of the Data Protection Acts, 1988-2003, thereby requiring that the collection of such IP addresses by EMI or its agents must comply with the specific requirements of each of section 2, 2A|, 2B, 2C and 2D of the Data Protection Act, 1988 as amended?
2. Having regard to section 2A(1) of the Data Protection Act 1988 as amended, and assuming for current purposes that the processing by Eircom of “personal data” in the context of the third of three steps envisaged by the graduated response scheme proposed under the terms of this settlement, (i.e. the termination of an internet user’s subscription) is “necessary for the purposes of the legitimate interests pursued by [Eircom]”, does much processing represent “unwarranted [processing] by reasons of prejudice to the fundamental rights and freedoms or legitimate interests of the data subject”?
3. Having regard to section 2A(1) and 2B(1) of the Data Protection Act 1988 as amended, is it open to EMI and/or Eircom to implement the graduated response process set out in the terms of the settlement including, in particular, the termination of an internet user’s subscription under step 3 of that process, in circumstances where:-
(a) In doing so they would be engaged in the processing of personal data and/or sensitive personal data (in so far as the data can be considered to relate to the commission of a criminal offence), including the provision of such data from one private entity to another private entity; and
(b) The termination of an internet user’s subscription by Eircom would be predicated on the internet user in question having committed an offence (i.e. the uploading of copyright-protected material to a third party by means of a peer-to-peer application) but without any such offence having been the subject of investigation by an authorised body; and, further, without any determination having been made by a court of competent jurisdiction, following the conduct of a fair and impartial hearing, to the effect that an offence had in fact been committed.”
17. I now propose to address each of these issues in turn and to rule on same.
Issue 1
18. Here, for the sake of clarity, is issue 1 again:
“Do data comprising IP addresses, in the hands of EMI or its agent(s), and taking account of the purpose for which they are collected and their intended provision to Eircom, constitute “personal data” for the purposes of the Data Protection Acts, 1988-2003, thereby requiring that the collection of such IP addresses by EMI or its agents must comply with the specific requirements of each of section 2, 2A|, 2B, 2C and 2D of the Data Protection Act, 1988 as amended?”
19. Personal data is defined by s. 1 of the Data Protection Act 1988, as amended by the Data Protection (Amendment) Act 2003, as:-
“Data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller.”
20. Under the same section of the Act, the data controller is defined as meaning a person who, either alone or with others, controls the contents and use of personal data. What is involved in the first, second and third step of the protocol is the scanning by either the plaintiff personally, or more likely through computer agencies hired in that regard, of the entire internet network to see whether any infringement of copyright material is taking place. Attention is likely to be focused in Ireland for these purposes. Using software such as DtecNet, their efforts will gain two basic pieces of information. Personalising DtecNet, for the moment, it, as a computer programme is only interested in the copyright material of the plaintiffs, or one or other of them. Continually scanning and rescanning internet communications, it finds the material being transmitted in various directions from peer-to-peer, or similar, swarms and, in effect, follows the communication down the line until it ends up in a particular computer and takes note of its IP number. In the course of the case, I heard that some computer firms are also developing automatic systems to cut copyright infringing communications prior to completion; but that is not relevant here. In some way, perhaps because the signal runs two ways, at least after the first illegal download, DtecNet and similar systems are able to find out the IP address and what infringement of copyright material has taken place. This is the material that is then collected in blocks and delivered to one or other of the plaintiffs. As I have previously indicated by reference to the protocol, none of this material gives any clue as to the name of the main householder, or business, or café in which the computer is situated or whether it is in An Gorta Choirce in County Donegal or in Ranelagh in Dublin.
21. I need to refer here to what processing means under the Act, as amended. This is set out thus in s. 1, the definition section:-
“Processing, of or in relation to information or data, means performing any operation or set of operations on the information or data, whether or not by automatic means, including –
(a) obtaining, recording or keeping the information or data,
(b) collecting, organising, storing, altering or adapting the information or data,
(c) retrieving, consulting or using the information or data,
(d) disclosing the information or data by transmitting, disseminating or otherwise making it available, or
(e) aligning, combining, blocking, erasing or destroying the information or data;”
22. An Act should never be split up into its constituent pieces and then analysed as if each were disconnected from the broader purpose that constitutes the legislation. Insight is often gained as to the meaning of a particular section, or indeed a definition, by showing how it is used in conjunction with other sections, or by analysing how the same concept is dealt with elsewhere. The definition of disclosure in s. 1 of the Act assists in this regard. That definition states:
“Disclosure, in relation to personal data, includes the disclosure of information extracted from such data and the transfer of such data but does not include a disclosure made directly or indirectly by a data controller or a data processor to an employee or agent of his for the purpose of enabling the employee or agent to carry out his duties; and, where the identification of a data subject depends partly on the data and partly on other information in the possession of the data controller, the data shall not be regarded as disclosed unless the other information is also disclosed”.
23. I do not accept fully the dictum of McMullin J. in Transport Ministry v. Simmonds, [1973] 1 NZLR 359 at 363 as to what the word “likely” means when used within a statute. To be personal data, under the Act, the information has to identify a living individual from the data or from data in conjunction with other information in the possession of the data controller, or from other information that is likely to come into the possession of the data controller. McMullin J. says that the word likely can be used in many contexts and that its meaning has to depend upon the particular context of the statute or regulation. That is hard to disagree with. He refers to an event which is likely in terms that it “may be an event which is probable but it may also be an event which, while not probable, could well happen”. In addressing juries, judges in this jurisdiction refer to the civil standard of proof as being that a fact is shown to be more likely than not; in other words, more probable than not. In referring to a sporting fixture, the pundits will say that one team, rather than another, is the likely winner. Where a group of teams is involved, the most likely winner may be identified and, in that context, the word may be used to mean something other than probable. If likely does not mean probable in a particular context, it at least means something akin to probable. I agree with McMullin J. that the word “likely” has no relevance to any concept such as a bare possibility, and I am rather inclined to believe that in most, if not all, statutory contexts that likely means probable; no more or less than that.
24. The previous approach of the plaintiffs to the problem which I have described was to apply for what are now called Norwich Pharmacal orders; named after the House of Lords decision in Norwich Pharmacal v. Customs and Excise [1974] AC 133. That order involves an application against an innocent party, such as Eircom, to disclose information because a civil wrong is being, or was being, perpetrated against the plaintiff and because the defendant, though not a party to the wrong, can identify the tortfeasor. In EMI Records v. Eircom Limited [2005] 4 IR 148 Kelly J. made such an order against the defendants in the context of the activity that I have described earlier in this judgment. The plaintiffs were then exploring obtaining information by court order in civil proceedings as to who was infringing copyright over the internet and then following up on that by further legal action. I do not regard it as relevant whether that further action might be criminal or civil. The purpose of this settlement is different. Kelly J. made an order that Eircom should disclose the names of its infringing customers, the plaintiffs having first supplied a tranche of IP addresses together with evidence of copyright infringement. That order was made on the basis that there had been a demonstration of wrongful activity by unknown persons who were internet subscribers of Eircom whereby copyright assigned to the plaintiff was being infringed. The stated purpose of such an order was to enable the plaintiff to then directly take action against each such illegal downloader. Kelly J. considered in depth the issue as to whether the information required could be obtained elsewhere than from the defendant. The action in question is pointless, in terms of the practical application of litigation tools, and the Norwich Pharmacal order is not allowable as a matter of law, unless the only practical way of obtaining the identifying details is through the suit. Since the High Court has made such an order in the context of this problem, I regard it as beyond doubt that it was both necessary to make the order disclosing the tortfeasors and that the judgment conformed with the requirements of the procedure that is so clearly set out in the judgment of Kelly J. The difference between that order and this settlement, is that the plaintiffs have left behind what they reasonably regard as an expensive and futile pursuit of the identity of copyright tortfeasors in favour of injunctive relief that has been expressed in the settlement of this case as a protocol to choke off the problem in a three stage process that never involves the identification of any wrongdoer.
25. In consequence, I conclude, that none of the plaintiffs have any interest in personally identifying any living person who is infringing their copyright by means of the settlement and protocol. I do not regard it as at all likely that they will attempt in any way to use the IP address as supplied to them by DtecNet of those engaged in illegal downloading in order to find out their names and addresses. Further, since, on the affidavit evidence before me, the plaintiffs had previously engaged in expensive litigation against Eircom in order to find out who they were, there seems no legal avenue open to them to get that information apart from an application for the names and addresses of the copyright thieves to the internet service provider. It is proved to me to be close to impossible that they could have recovered them by any easier or less pricey means. Nor do any of the plaintiffs have any intention of engaging in any illegal activity. Rather, the entire purpose of this litigation is to uphold the law. The first question is therefore answered no.
Issue 2
26. The second issue raised by the Data Protection Commissioner questions whether the settlement furthers any legitimate interest pursued by Eircom and asserts a possible conflict with the fundamental rights and freedoms of the data subject. For the sake of clarity, I reproduce it again:
“Having regard to section 2A(1) of the Data Protection Act, 1988 as amended, and assuming for current purposes that the processing by Eircom of “personal data” in the context of the third of three steps envisaged by the graduated response scheme proposed under the terms of this settlement, (i.e. the termination of an internet user’s subscription) is “necessary for the purposes of the legitimate interests pursued by [Eircom]”, does much processing represent “unwarranted [processing] by reasons of prejudice to the fundamental rights and freedoms or legitimate interests of the data subject”?
27. I define this issue as involving, firstly, identifying if there is a necessity from the point of view of Eircom in entering into the settlement. Secondly, it is relevant whether there is any right to steal somebody else’s copyright material. Thirdly, and in the context of the first two questions, it is relevant to ask if the protocol involves any interference with any fundamental right or freedom involving internet service. If so, I must consider any intervention on the basis that the interference should be proportional and justified. This involves, in this context, looking at what is protected; how important that right is; what level of threat is directed at that right; and what level of participation may be legitimately inferred against the data subject. Since this question is responsibly based by the Data Protection Commissioner on s. 2A of the Act as amended I need to quote that in full:
“2A(1) Personal data shall not be processed by a data controller unless section 2 of this Act (as amended by the Act of 2003) is complied with by the data controller and at least one of the following conditions is met:
(a) the data subject has given his or her consent to the processing or, if the data subject, by reason of his or her physical or mental incapacity or age, is or is likely to be unable to appreciate the nature and effect of such consent, it is given by a parent or guardian or a grandparent, uncle, aunt, brother or sister of the data subject and giving such consent is not prohibited by law,
(b) the processing is necessary –
(i) for the performance of a contract to which the data subject is a party.
(ii) in order to take steps at the request of the data subject prior to entering into a contract.
(iii) for compliance with a legal obligation to which the data controller is subject other than an obligation imposed by contract, or
(iv) to prevent –
(I) injury or other damage to the health of the data subject or
(II) serious loss or damage to property of the data subject,
or otherwise to protect his or her vital interests where the seeking of the consent of the data subject or another person referred to in paragraph (a) of this subsection is likely to result in those interests being damaged.
(c) the processing is necessary –
(i) for the administration of justice,
(ii) for the performance of a function conferred on a person by or under an enactment,
(iii) for the performance of a function of the Government or a Minister of the Government, or
(iv) for the performance of any other function of a public nature performed in the public interest by a person.
(d) the processing is necessary for the purposes of the legitimate interests pursued by the data controller or by a third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the fundamental rights and freedoms or legitimate interests of the data subject”.
28. In dealing with this aspect of data protection entitlement, I feel I must return, for a moment, to some basic principles of law. There is fundamental right to copyright in Irish Law. This has existed as part of Irish legal tradition since the time of Saint Colmcille. He is often quoted in connection with the aphorism: le gach bó a buinín agus le gach leabhar a chóip (to each cow its calf and to every book its copy). I regard the right to be identified with and to reasonably exploit one’s own original creative endeavour as a human right. Apart from legal tradition, the rights now enshrined in the Copyright and Related Rights Act, 2000 were, under their previous legislative incarnation, identified in Phonographic Performance Ireland Limited v. Cody, [1998] 4 I.R. 504 by Keane J. at 511 as having a pre-legislative origin and super-legislative effectiveness as part of the unenumerated fundamental rights under the Constitution:-
“The right of the creator of a literary, dramatic, musical or artistic work not to have his or her creation stolen or plagiarised is a right of private property within the meaning of article 40.3.2° and Article 43.1 of the Constitution of Ireland, 1937, as is the similar right of a person who has employed his or her technical skills and/or capital in the sound recording of a musical work. As such, they can hardly be abolished in their entirety, although it was doubtless within the competence of the Oireachtas to regulate their exercise in the interests of the common good. In addition and even in the absence of any statutory machinery, it is the duty of the organs of the State, including the courts, to ensure, as best they may, that these rights are protected from unjust attack and, in the case of injustice done, vindicated.”
29. I regard that authority as both binding and sound. The courts under the Constitution are obliged to supply, even in the absence of legislative intervention, appropriate remedies for the undermining of rights within the scheme of fundamental law that the Constitution represents. As has often been said, the powers of the courts in that regard are as ample as the Constitution requires. I am, therefore, obliged by Constitutional imperative to protect, as best I can, the rights of copyright owners from unjust attack or, where that sort of attack has taken place, to vindicate their rights through an appropriate order. There is ample expression of statutory remedies in the laws passed by the Oireachtas under the Constitution. Section 37 of the Copyright and Related Rights Act 2000 provides that the owner of the copyright in work has the exclusive right to undertake or authorise others to make that work available to the public. This legal entitlement is being flagrantly violated by peer-to-peer illegal downloading. I can see no other way of looking at the problem. More than one of the conditions in s.2A of the Data Protection Act 1988 as amended is met as to both the legitimate interests of Eircom, as a responsible company, and that of the community in general. The most important of these interests is that of abiding by the law. It is completely within the legitimate standing of Eircom to act, and to be seen to act, as a body which upholds the law and the Constitution. That is what the court expects of both individuals and companies. That expectation is derived from the rights protected under the Constitution and the general pact which the people of Ireland mutually made in founding a legal system, as the Preamble to the Constitution clearly declares, that is dedicated to attaining true social order. The insertion of express conditions by Eircom in the user – internet service provider contract, as quoted above, against the use of the internet as a facility for transmitting obscene images and against the infringement of the copyright of others is a step taken in pursuance of a corporate policy that is no less than lawful and proper. It is abundantly clear that the data subject has given his or her consent in return for obtaining internet access. Under contract, if any of these conditions be breached, then their access can be terminated. It may be that internet access is available elsewhere from other internet service providers on lesser conditions. If that is so it is hard to see, however, how conditions of a contract can validly avoid the law. These, however, are the conditions that apply here. A contract for service, involving termination for breach as a consequence on the operation of a condition is present by consent. That is not all. Furthermore, such processing, involving sifting the data from the plaintiffs, warning Eircom customers and, ultimately, cutting them off, is necessary for both the performance of a contract and for compliance with a legal obligation cast upon the courts, among other organs of the State, to defend the Constitution and the laws of our society. No one in the community can escape the law, as to the obligations that it imposes or the rights that it declares. The means of infringement, or the ideology that may grow around a medium of infringement, are not germane. Otherwise, the law lacks legitimacy.
30. Even if only s. 2A(1)(b) of the Data Protection Act, as amended, was operative, it is legitimate for Eircom to have a corporate policy whereby the facilities that it hires out to the people of Ireland are used for lawful purposes only. Having that policy, they are entitled to pursue it by means of conditions in contract that incorporate an enforcement modality. The protocol is merely a more complex means to that end. I find it impossible to imagine that such interference is unwarranted because there is some fundamental right or freedom or legitimate interest in the data subject whereby, in contrast to those who engage in other forms of unlawful copyright theft which may leave them more readily subject to the law, the internet is used for the violation. There cannot be a right to infringe the constitutional rights of others, absent some argument as to a genuine and compelling competing right. In some instances, the purpose for which a right is asserted undermines its character as a right. There could not be, for instance, a constitutional right to privacy that extended to the organisation of a violent crime over the internet or by telephone. There is nothing disproportionate, and it is therefore not unwarranted, about cutting off internet access because of three infringements of copyright. The exceptions in the protocol, to which I have already referred in detail, provide for upholding relevant rights to medical care, to livelihood and to business use in appropriate circumstances. The protocol, at the relevant stage, is not inhumane or arbitrary. Rather, there is a right to make representations and these will, I am assured and I believe, be listened to if sensible and credible.
31. These are adequate procedural safeguards in the protocol and there is conformity, in addition, in my view, with article 1(b) of the European Parliament and Council Directive 2009/140/EC of 25 November 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services O.J. L 337/37 18.12.2009, commonly called the framework Directive. At the moment there is no instrument making this effective in Irish law, but I have been referred to it as a matter of caution.
32. Lastly, I note the many Directives in European Law on the harmonisation of aspects of copyright and related rights. The Copyright and Related Rights Act 2000, as amended by the Copyright and Related Rights (Amendment) Act 2007 is a domestic Act, but it must be interpreted in accordance with Ireland’s obligations under European law. In part, some terms are derived from our European Union obligations. The relevant European law Directives were implemented piecemeal over many years and later Directives, at times, repeat the text of earlier ones. Two sections of the European Parliament and Council Directive 2001/29/EC of 22nd May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society O.J. L167/10 22.6.2001 are important. Firstly, recital 59 records:-
“In the digital environment, in particular, the services of intermediaries may increasingly be used by third parties for infringing activities. In many case such intermediaries are best placed to bring such infringing activities to an end. Therefore, without prejudice to any other sanctions and remedies available, rightholders should have the possibility of applying for an injunction against an intermediary who carries a third party’s infringement of a protected work or other subject matter in a network. This possibility should be available even where the acts carried out by the intermediary are exempted under Article 5. The conditions and modalities relating to such injunctions should be left to the national law of the Member States.”
33. And then there is Article 8.3 of the Directive:-
“Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right”.
34. In the Copyright and Related Rights Acts 2000, as amended, references to the right of the copyright holder in section 40 to make available to the public copies of a work are declared to include such acts as broadcasting the work, issuing copies of it or renting out copies; as in DVD libraries. Then, after establishing those legal entitlements in the holder of copyright, subs. 3 and 4 of that section go together and I quote them:-
“3. Subject to subsection 4, the provision of facilities for enabling the making available to the public of copies of a work shall not of itself constitute an act of making available to the public of copies of the work.
4. Without prejudice to subsection 3, where a person who provides facilities referred to in that subsection is notified by the owner of the copyright in the work concerned that those facilities are being used to infringe the copyright in that work and that person fails to remove that infringing material as soon as practicable, thereafter that person shall also be liable for the infringement.”
35. Injunctions are granted by the court where it “just and convenient”. That is the basis for all equitable relief formalised by the Supreme Court of Judicature (Ireland) Act 1875. I interpret the Copyright and Related Rights Act 2000 as extending to the making of an injunction against an innocent third party in order to block, in the appropriate way that is convenient as to the balance between the parties and that is just, as to their standing and conduct, the wholesale illegal destruction of the right to livelihood through creative effort which copyright, as a fundamental concept in law, is designed to defend and to vindicate. I make no comment on the protection of rights through injunctive relief where a primary actionable wrong in damages is not present; see Prince Albert v Strange (1849) 2 De & Sm 293 and, more recently, Douglas v Hello! [2002] 2 A.C. 457. The second question should therefore be answered no.
Issue 3
36. Central to this two-part third issue raised by the Data Protection Commissioner is whether the processing by Eircom, through warning and then on the third infringement, through cutting internet access, involves sensitive personal data. It admits of only one answer. I, again for clarity’s sake, requote the issue:
“Having regard to section 2A(1) and 2B(1) of the Data Protection Act 1988, as amended, is it open to EMI and/or Eircom to implement the graduated response process set out in the terms of the settlement including, in particular, the termination of an internet user’s subscription under step 3 of that process, in circumstances where:-
In doing so they would be engaged in the processing of personal data and/or sensitive personal data (in so far as the data can be considered to relate to the commission of a criminal offence), including the provision of such data from one private entity to another private entity; and
The termination of an internet user’s subscription by Eircom would be predicated on the internet user in question having committed an offence (i.e. the uploading of copyright-protected material to a third party by means of a peer-to-peer application) but without any such offence having been the subject of investigation by an authorised body; and, further, without any determination having been made by a court of competent jurisdiction, following the conduct of a fair and impartial hearing, to the effect that an offence had in fact been committed.”
37. In considering this issue, I recall that since the earliest days of entitlement to copyright as enshrined in legislation, it has been both part of the civil code of law and it has also involved the creation of a number of criminal offences. These criminal offences are now set out in s. 140 of the Copyright and Related Rights Act 2000. I need to quote this in part:-
“140(1) A person who, without the consent of the copyright owner
(a) makes for sale, rental or loan,
(b) sells, rents or lends, or offers or exposes for sale, rental or loan,
(c) imports into the State, otherwise than for his or her private and domestic use,
(d) in the course of a business, trade or profession, has in his or her possession, custody or control, or makes available to the public, or
(e) otherwise than in the course of a business, trade or profession, makes available to the public to such an extent as to prejudice the interests of the owner of the copyright,
a copy of a work which is, and which he or she knows or has reason to believe is, an infringing copy of the work, shall be guilty of an offence…
(7) A person guilty of an offence under subsection (1) … shall be liable-
(a) on summary conviction, to a fine not exceeding £1,500 in respect of each infringing copy, article or device, or to imprisonment for a term not exceeding 12 months, or both, or
(b) on conviction on indictment, to a fine not exceeding £100,000, or to imprisonment for a term not exceeding 5 years, or both”.
38. These are certainly criminal offences but they are not merely regulatory offences, the commission whereof may involve no element of mental culpability beyond doing the action outlawed. They are true criminal offences. They involve an external element of the infringement of copyright, in one of the modes provided for; an absence of any consent of the copyright owner; and a mental element of knowing or having reason to believe that one is dealing with an infringing copy of the work: in other words knowledge or recklessness. I am satisfied that neither the plaintiffs as owners or assignees of valuable copyright, nor Eircom as the internet service provider, are in any way interested in the detection or prosecution of criminal offences. There are now many instances where civil liability and criminal responsibility coincide by reason of statute. The most obvious example occurs under the Taxes Consolidation Act, 1997 whereby every infringement of taxation regulation is made into a crime. Every statutory instrument of which I am aware under the European Communities Act 1972, as amended, involves an apparently fixed policy of transmuting European law Directives into Irish law in a form that makes an infringement of the relevant term a summary offence. The Act forbids the creation by statutory instrument of indictable offences. Even before that modern statutory tendency, matters such as assault and false imprisonment existed in virtually identical form in tort law and in criminal law by virtue of accepted common law definitions carrying remedies, on the one hand, in damages and, on the other, in punishment.
39. There doesn’t seem to be any relevant issue, however, as to any mental element for the proof of any relevant criminal offence in terms of the purpose in processing data that is dependent upon the legal definition of sensitive personal data contained in the definition section of the Data Protection Act 1988, as amended. I quote this:-
“Sensitive personal data means personal data as to
(a) the racial or ethic origin, the political opinions or the religious or philosophical beliefs of the data subject,
(b) whether the data subject is a member of a trade union,
(c) the physical or mental health or condition or sexual life of the data subject,
(d) the commission or alleged commission of any offence by the data subject, or
(e) any proceedings for an offence committed or alleged to have been committed by the data subject, the disposal of such proceedings or the sentence of any court in any such proceedings.”
40. In consequence, it could be argued that the sensitivity of data in relation to crime is centred on the commission of the offence, or an allegation of the commission of an offence through criminal process. That could be a parking offence or a litter offence as well as arson or murder. But, criminal proofs as regards the definitional elements of the first two offences differ markedly from the last two. This much, however, is obvious. Nothing in the affidavits that I have seen, nor anything in the evidence which I have heard, shows any interest by any of the plaintiffs, much less by the defendant, in alleging the commission by the person illegally downloading copyright material, the data subject, of a criminal offence. Nothing in the protocol to which I have referred will ever involve “the disposal of… proceedings” or “the sentence of any court”. This strikes me as having high relevance to the third issue. Furthermore, since one is dealing here not with a regulatory offence, one which carries no necessary mental element of culpability, but with a true criminal offence, which does, there is nothing in the terms of the settlement, or the resulting protocol, or the attitude of the parties, which is directed at that crucial, and elusive, proof of the relevant mental element in criminal law. Rather, everything that I have seen is based upon civil law principles. In contrast to the criminal process, these establish liability by virtue of the proof of external facts, without any necessity to proceed to look to knowledge or intention, to recklessness or to criminal negligence (an element exclusive to manslaughter not relevant here). Even in the law of negligence, one is concerned with what ought to have been realised or done and not, as in criminal law, with what was perceived. As to the principles of liability, civil and criminal law are entirely different.
41. I do not believe that, in truth, this issue arises at all. Nor do I believe that it is necessary that there should be an investigation by an authorised body, or a determination made by a court of competent jurisdiction, following the conduct of a fair and impartial hearing, in order to determine that an offence has in fact been committed. That is because, in reality, no one is accusing anyone of an offence. There is no issue as to anything beyond civil copyright infringement. To accuse them of the criminal offence it would have to be copyright infringement together with the mental element expressly required by the crime.
42. In the course of the hearing, as I have said, reference was made to the framework directive, Directive 2009/140/EC. Its seems to me that the right to an effective and timely judicial review can be enabled by the State, if following settlements as carefully drafted as the protocol to which I have referred, or injunctions granted by the court in accordance with s. 40(4) of the Copyright and Related Rights Act 2000 as interpreted in accordance with Article 8.3 and recital 59 of the Directive 2001/29/EC, that an overall supervisory review of a settlement can in future be made at the time by the court granting an injunction or other order with all due respect to fundamental rights and freedoms. Any of that is an aspect of the future regulation of a very serious problem. As it is, I believe that I have made that review now and that nothing prevents the Court from enforcing the orders made in the settlement. The answer to the last composite question is therefore yes, the graduated response process is lawful. As to the present, I believe I have answered the questions posed as best I can.
Result
43. The parties can therefore lawfully proceed to implement the settlement.
QSA & Ors, R (On the Application Of) v Secretary of State for the Home Department & Anor
[2018] EWHC 407 (Admin) (02 March 2018)
Lord Justice Holroyde:
This is the judgment of the court, to which we have both contributed.
The first and third claimants each have the benefit of an order that their names be anonymised in these proceedings. No such order was sought by the second claimant.
Each of the three claimants has been convicted, many years ago, of multiple offences of loitering or soliciting in a street or public place for the purpose of prostitution, contrary to section 1 of the Street Offences Act 1959. Those convictions, notwithstanding the passage of time, remain on their records; and the claimants are required to disclose them, and to obtain verification of their disclosure, if they apply to work or volunteer within particular occupations. They contend that the recording and retention of information concerning their convictions, and the operation of the statutory provisions which require them to disclose those convictions if seeking particular types of employment, are unlawful.
The proceedings are brought against the defendants as the authorities responsible for matters of policy in relation to the criminal law, and for the recording of criminal offences and the operation of the Disclosure and Barring Service (“DBS”).
We record at the outset our gratitude to counsel for their helpful written and oral submissions.
The facts:
The convictions which are primarily relevant for present purposes are those for offences contrary to section 1 of the 1959 Act, to which I shall refer for convenience as “soliciting”. Insofar as any of the claimants has any other criminal convictions, they are for offences which were not particularly serious, and their only relevance is with regard to the operation of the multiple convictions rule (as to which, see below).
The witness statements of the claimants paint a grim picture of the circumstances in which they committed their soliciting offences, of their vulnerability when first required or persuaded by “boyfriends” to prostitute themselves, and of the violence and abuse to which they were subjected at the hands of the men who groomed, trafficked and prostituted them. The first claimant was put to prostitution when she was only 14 years old and subject to a care order, and she was first convicted of soliciting offences at the age of 16. The second claimant was put to prostitution at the age of 15, and was just 17 when convicted for the first time of a soliciting offence. The third claimant was a little older, but still only 18, when groomed into prostitution, and was aged 21 when first convicted of a soliciting offence. The evidence of both the first and the second claimant shows them to have entered into prostitution when they were, in law, too young to consent to any sexual activity. Those who procured them to have sexual intercourse with others, when they were below the age of majority, committed criminal offences contrary to section 23 of the Sexual Offences Act 1956. Thus in those instances, the first and second claimants were themselves victims of crime in relation to the activity which resulted in their own convictions of soliciting offences. Having read their evidence, and the evidence of other witnesses who have similar forlorn histories to relate, I have no difficulty in accepting that all three claimants have, even as adults, been victims in many other ways.
Ms Monaghan QC for the claimants emphasises that each complainant succeeded in removing herself from prostitution many years ago. Again, I have no difficulty in accepting that it is greatly to their credit that they did so, despite the many difficulties they have faced in making their exits. The 50 soliciting offences of which the first claimant has been convicted were committed over a period of 8 years, the last conviction being in 1998. In the second claimant’s case, the 49 soliciting offences of which she has been convicted were committed over a period of 3 years, the last conviction being in 1988. In the third claimant’s case, the 9 soliciting offences of which she has been convicted were committed over a period of 4 years, the last conviction being in 1992. In relation to each of them, the penalties imposed for the soliciting offences were almost always fines, with conditional orders of discharge being made on a few occasions.
Although the offences were committed long ago, and the penalties imposed were comparatively minor, the convictions of soliciting offences have continuing consequences for each of the claimants. They are not statutorily barred from working with children or vulnerable adults, but the effect of the relevant statutory provisions is that, throughout their lives, the claimants must disclose their convictions if they apply for certain types of employment, or seek to assist as a volunteer in such types of employment, and must obtain a certificate verifying any such disclosure. The claimants contend that it is unlawful to require them to do so, and that the operation of the statutory provisions both exposes them to unfair embarrassment and places them at an unfair handicap in obtaining employment of the kind which they, and many other women in similar positions, are likely to seek. It also acts as a deterrent to their applying for such employment. As will be seen, the adverse consequences of which the claimants complain arise because they have each been convicted of more than one soliciting offence. They contend that it is unremarkable, having regard to the nature of the soliciting offence and to the unhappy and difficult personal circumstances which often apply to those women who enter prostitution, that they should be convicted more than once of soliciting. They submit that in this respect also, the legislative provisions have an unfair effect and are unlawful.
It is accordingly necessary to consider aspects of the statutory provisions relating to the recording of criminal offences and the extent to which a person applying for employment is required to disclose criminal convictions.
The legislative framework:
Section 1 of the Street Offences Act 1959, as amended, provides as follows:
“1 Loitering or soliciting for purposes of prostitution.
(1) It shall be an offence for a person aged 18 or over (whether male or female) persistently to loiter or solicit in a street or public place for the purpose of prostitution.
(2) A person guilty of an offence under this section shall be liable on summary conviction to a fine of an amount not exceeding level 2 on the standard scale, or, for an offence committed after a previous conviction, to a fine of an amount not exceeding level 3 on that scale.
(2A) The court may deal with a person convicted of an offence under this section by making an order requiring the offender to attend three meetings with the person for the time being specified in the order (“the supervisor”) or with such other person as the supervisor may direct.
(2B) The purpose of an order under subsection (2A) is to assist the offender, through attendance at those meetings, to—
(a) address the causes of the conduct constituting the offence, and
(b) find ways to cease engaging in such conduct in the future.
(2C) Where the court is dealing with an offender who is already subject to an order under subsection (2A), the court may not make a further order under that subsection unless it first revokes the existing order.
(2D) If the court makes an order under subsection (2A) it may not impose any other penalty in respect of the offence.
(3) . . . . . .
(4) For the purposes of this section
(a) conduct is persistent if it takes place on two or more occasions in any period of three months;
(b) any reference to a person loitering or soliciting for the purposes of prostitution is a reference to a person loitering or soliciting for the purposes of offering services as a prostitute;
(c) “street” includes any bridge, road, lane, footway, subway, square, court, alley or passage, whether a thoroughfare or not, which is for the time being open to the public; and the doorways and entrances of premises abutting on a street (as hereinbefore defined), and any ground adjoining and open to a street, shall be treated as forming part of the street.”
It should be noted that, at present, level 2 on the standard scale is a fine not exceeding £500, and level 3 is a fine not exceeding £1,000; see section 37 of Criminal Justice Act 1982.
Thus in its present form, the offence of soliciting contrary to section 1 of the 1959 Act can be committed by either a man or woman. The position was however different in this regard at the time when the claimants were convicted of their offences. As originally enacted, the section – in material part – provided as follows:
“1 Loitering or soliciting for purposes of prostitution.
(1) It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution.
(2) A person guilty of an offence under this section shall be liable, on summary conviction, to a fine not exceeding ten pounds or, for an offence committed after a previous conviction, to a fine not exceeding twenty-five pounds or, for an offence committed after more than one previous conviction, to a fine not exceeding twenty-five pounds or imprisonment for a period not exceeding three months or both.”
Caselaw established that this was an offence which could only be committed by a woman: see, eg, R v De Munck [1918] 1 KB 635.
It is not surprising that the offence as originally enacted could only be convicted by a woman, because in 1959 there was already an offence which could only be committed by a man: section 32 of the Sexual Offences Act 1956 provided –
“Solicitation
32. It is an offence for a man persistently to solicit or importune in a public place for immoral purposes.”
Although the offence of soliciting contrary to section 1 of the 1959 Act can now be committed by either a man or a woman, it is an important part of the claimants’ case that in practice the offence is overwhelmingly likely to be committed by women. As we explain in more detail below, the claimants’ evidence shows that in the decade after the offence ceased to be gender-specific, around 98% of all those convicted or cautioned for an offence of soliciting contrary to section 1 of the 1959 Act were women.
Turning to the recording of criminal convictions, and the obligation to disclose criminal convictions in certain circumstances, section 27 of the Police and Criminal Evidence Act 1984 (as amended) provides in material part –
“(4) The Secretary of State may by regulations make provision for recording in national police records convictions for such offences as are specified in the regulations.
(4A) In subsection (4) ‘conviction’ includes –
a. a caution within the meaning of Part 5 of the Police Act 1997; and
b. a reprimand or warning given under section 65 of the Crime and Disorder Act 1998.”
It is appropriate to begin by noting that in general, the offences which may be recorded in national police records are those which are punishable by imprisonment. However, by virtue of the National Police Records (Recordable Offences) Regulations 1985, SI 1985/1941, convictions for offences under section 1 of the 1959 Act were made recordable even though they were punishable only with a fine, and not with imprisonment. Those Regulations were revoked and replaced (and their ambit extended to include formal police cautions and similar sanctions) by the National Police Records (Recordable Offences) Regulations 2000, SI 2000/1139, paragraph 3 of which provides –
“(1) There may be recorded in national police records-
(a) convictions for; and
(b) cautions, reprimands and warnings given in respect of,
any offence punishable with imprisonment and any offence specified in the Schedule to these Regulations.”
Paragraph 50 of the Schedule specifies offences of soliciting contrary to section 1 of the 1959 Act. Convictions and cautions for soliciting offences are therefore recorded on the Police National Computer (“PNC”) and so may come within the statutory provisions as to disclosure of convictions.
Those provisions are contained in the Rehabilitation of Offenders Act 1974. At common law, an employer could ask an applicant for employment whether he or she had been convicted of a criminal offence. The applicant could choose not to answer such a question, but would no doubt be at risk of an adverse inference being drawn from that failure to answer. If the applicant chose to answer the question, he or she was under a duty to answer it honestly, and therefore to disclose any convictions. The 1974 Act changed that position by introducing the concept that after a period of time, a criminal conviction becomes “spent”, and the convicted person becomes “rehabilitated”. When a rehabilitated person applies for employment the Act (subject to exceptions) exempts him or her from any duty to disclose spent conviction(s), and prohibits an employer from making a decision prejudicial to the applicant on the grounds of non-disclosure of the spent conviction(s). The drafting of the Act, and of Regulations made under it, gives effect to that broad scheme by a series of exemptions overlaid with exceptions and modifications. It is therefore necessary to consider the detail of the provisions which are relevant to the issues in this case.
The Act contains separate, parallel provisions for England and Wales and for Scotland. Only the former provisions are relevant in this case. So far as is material for present purposes, section 4 of the Act provides as follows:
“4. – Effect of rehabilitation.
(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 exercising its jurisdiction or functions in England and Wales to prove that any such person has committed or been charged with or prosecuted for or 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—
(a) the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions, and the answer thereto may be framed accordingly; and
(b) the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent conviction or any circumstances ancillary to a spent conviction in his answer to the question.
(3) Subject to the provisions of any order made 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 (whether the conviction is his own or another’s); and
(b) a conviction which has become spent or any circumstances ancillary thereto, or any failure to disclose a spent conviction or any such circumstances, 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.
(4) The Secretary of State may by order—
(a) make such provision as seems to him appropriate for excluding or modifying the application of either or both of paragraphs (a) and (b) of subsection (2) above in relation to questions put in such circumstances as may be specified in the order;
(b) provide for such exceptions from the provisions of subsection (3) above as seem to him appropriate, in such cases or classes of case, and in relation to convictions of such a description, as may be specified in the order.”
By an amendment which came into effect in 2008, paragraph 3 of schedule 2 to the Act makes similar provision where a person has not been convicted, but has been given a formal police caution for an offence.
Section 5 of the 1974 Act prescribes rehabilitation periods for particular offences. Life imprisonment, custodial terms of more than 4 years and certain other custodial sentences are excluded from rehabilitation and thus never become spent. In relation to other sentences and orders, the relevant rehabilitation periods are set out in a table. The rehabilitation periods vary according to whether the person convicted was an adult or was aged under 18 at the date of the conviction. For an adult whose sentence is a fine, the end of the rehabilitation period is “the end of the period of 12 months, beginning with the date of the conviction in respect of which the sentence is imposed”. For an adult whose sentence is a “relevant order”, the end of the rehabilitation period is “the day provided for, by, or under the order at the last day on which the order is to have effect”. By section 5(8), orders which are a “relevant order” for this purpose include an order discharging a person conditionally for an offence, and an order under section 1(2A) of the Street Offences Act 1959. By section 5(4), there is no rehabilitation period for an order discharging a person absolutely for an offence, and where such an order is made “references in this Act to any rehabilitation period are to be read as if the period of time were nil”.
The effect of these provisions is that if a person is asked questions about his or her previous conviction or cautions, the question is to be treated as not relating to spent convictions or cautions, and the person concerned is exempted from any liability by reason of a failure to disclose a spent conviction or caution. Similarly, neither a spent conviction or caution, nor a failure to disclose it, can be a proper ground for excluding or dismissing a person from any occupation or employment, or for prejudicing him or her in anyway in any occupation or employment. These protections are, however, subject to the provisions of any order made by the Secretary of State for Justice pursuant to section 2(4).
Relevant to the present case is the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, which came into effect on the same day as the 1974 Act itself. Article 3 of the Order provides that neither section 4(2) of, nor paragraph 3(3) of schedule 2 to, the 1974 Act (relating to convictions and cautions respectively) shall apply to questions asked in order to assess the suitability of a person for admission to certain professions, or for certain offices or employments which are listed in schedule 1 to the Order (and which include, by paragraph 12, any office or employment which is concerned with the provision of care services to vulnerable adults, and by paragraph 14B, any employment at a children’s home or residential family centre). Nor shall they apply to –
“(aa) any question asked by or on behalf of any person, in the course of the duties of his work, in order to assess the suitability of the person to work with children, where –
(i)the question relates to the person whose suitability is being assessed …
and where the person to whom the question relates is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed.”
Corresponding provision is made in article 4 of the Order disapplying section 4(3)(b), and paragraph 3(5) of schedule 2, of the Act in relation to dismissal or exclusion of a person from such occupations or employments.
Until 2013, articles 3 and 4 of the 1975 Order disapplied the relevant provisions of the 1974 Act in relation to any spent conviction or caution. By amendments which came into effect in 2013, a category of “protected” cautions and convictions was introduced. By articles 3(2) and 4(2), the provisions of articles 3 and 4 – subject to exceptions which are irrelevant for present purposes – do not apply in relation to a protected conviction or caution. In material part, article 2A provides as follows:
“2A.
(1) For the purposes of this Order, a caution is a protected caution if it was given to a person for an offence other than a listed offence and –
(a) where the person was under 18 years at the time the caution was given two years or more have passed since the date on which the caution was given; or
(b) where the person was 18 years or over at the time the caution was given, six years or more have passed since the date on which the caution was given.
(2) For the purposes of this Order, 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 or more 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.
(3) The conditions referred to in paragraph (2) are that –
(a) the offence of which the person was convicted was not a listed offence;
(b) no sentence mentioned in paragraph (4) was imposed in respect of the conviction; and
(c) the person has not been convicted of any other offence at any time.
(4) The sentences referred to in paragraph (3)(b) are –
(a) a custodial sentence, and
(b) a sentence of service detention,
within the meaning of section 5(8) of the Act, as to be substituted by section 139(1) and (4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.”
The effect of these provisions is that, in relation to a protected conviction or caution, the person concerned again has the benefit of the exemptions provided by the 1974 Act. An offence of soliciting contrary to section 1 of the 1959 Act is not a “listed offence”, and so a person convicted of a single such offence would, after the passage of the relevant period of time, have the benefit of the 1974 Act. But where the person concerned has been convicted at another time of any other offence or offences, the effect of article 2A(3)(c) is that the soliciting conviction cannot be a protected conviction. This is what has been referred to in the course of the case as the “multiple conviction rule”. It catches the claimants and, they argue, catches many other women who have entered into prostitution in circumstances where their vulnerability made it likely that they would be convicted of more than one offence of soliciting.
As Ms Gallafent QC points out on behalf of the defendants, the multiple conviction rule applies whatever the nature of the convictions: it is not only a conviction of a further soliciting offence which would prevent an earlier soliciting offence from being a protected conviction. That has potential consequences for the claimants, each of whom has in the past been convicted of at least one offence which was not an offence of soliciting. More generally, we note that it also means that a single conviction of soliciting, in itself a protected conviction, would become liable to disclosure if years later the individual concerned was convicted of an entirely different type of offence.
Part V of the Police Act 1997 introduced a statutory scheme for the disclosure of criminal records, and in some cases of other information, where it is required for the purpose of assessing the suitability of an applicant for certain categories of posts or positions (broadly, employment with children or vulnerable adults, or employment which requires a high degree of trust). Certain categories of employer who work with children and vulnerable persons may be registered as persons permitted to ask “exempted questions” relating to the applicant’s suitability. If an individual applies for a criminal record certificate, and a registered person certifies that it is required for the purposes of an exempted question, the DBS must issue an appropriate certificate, which may take one of two forms.
Sections 113A and 113B of the Police Act 1997 have the effect that a person who applies for such employment, and who will have to answer a question about previous convictions or cautions, must apply to the DBS for either a Criminal Record Certificate (“CRC”) or an Enhanced Criminal Record Certificate (“ECRC”). The difference between the two is that the former provides details only of convictions or cautions, whereas the latter may also provide information which the relevant chief officer of police reasonably believes to be relevant. So far as material for present purposes, the sections provide (in relation to England and Wales) as follows:
“113A Criminal record certificates
1) DBS must issue a criminal record certificate to any individual who –
a) makes an application,
aa) is aged 16 or over at the time of making the application, and
b) pays in the prescribed manner any prescribed fee.
2) The application must –
a) be countersigned by a registered person, and
b) be accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question.
……
3) A criminal record certificate is a certificate which –
a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records, or
b) states that there is no such matter.
5) DBS may treat an application under this section as an application under section 113B if –
a) in its opinion the certificate is required for a purpose prescribed under subsection (2) of that section,
b) the registered person provides it with the statement required by that subsection, and
c) the applicant consents and pays to DBS the amount (if any) by which the fee payable in relation to an application under that section exceeds the fee paid in relation to the application under this section.
6) In this section –
“central records” means such records of convictions and cautions held for the use of police forces generally as may be prescribed;
“exempted question” means a question which
a) so far as it applies to convictions, is a question in relation to which section 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) has been excluded by an order of the Secretary of State under section 4(4) of that Act; and
b) so far as it applies to cautions, is a question to which paragraph 3(3) or (4) of Schedule 2 to that Act has been excluded by an order of the Secretary of State under paragraph 4 of that schedule;
“relevant matter”, in this section as it has effect on England and Wales, means –
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;
c) a caution given in respect of an offence within
subsection (6D);
d). a current caution.”
……
113B Enhanced criminal record certificates
(1) DBS must issue an enhanced criminal record certificate to any individual who –
a) makes an application,
aa) is aged 16 or over at the time of making the application, and
b) pays in the prescribed manner any prescribed fee.
2) The application must –
a) be countersigned by a registered person, and
b) be accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question asked for a prescribed purpose.
……
3) An enhanced criminal record certificate is a certificate which –
a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with subsection (4), or
b) states that there is no such matter or information.
4) Before issuing an enhanced criminal record certificate DBS must
request any relevant chief officer to provide any information which
a) the chief officer reasonably believes to be relevant for the purpose described in the statement under subsection (2), and
b) in the chief officer’s opinion ought to be included in the certificate.
……
7) DBS may treat an application under this section as an application
under section 113A if in its opinion the certificate is not required for
purpose prescribed under subsection (2).
……
9) In this section –
“central records”, “exempted question” and “relevant matter” have the same meaning as in section 113A:
“relevant chief officer” means any chief officer of a police force who is identified by DBS for the purposes of making a request under subsection (4).”
In relation to both these sections, it may be noted that in s113A(6), paragraph (b) of the definition of “relevant matter” reflects the multiple conviction rule.
In challenging these statutory schemes, Ms Monaghan relies on the provisions of the Human Rights Act 1998. Section 3 of that Act requires that, so far as it is possible to do so, primary and secondary legislation must be read and given effect in a way which is compatible with the rights listed in the European Convention on Human Rights (“ECHR”) and set out in schedule 1 to the Act. By section 6, it is unlawful for a public authority to act in a way which is incompatible with a Convention right. By section 7 –
“(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may –
a. bring proceedings against the authority under this Act in the appropriate court or tribunal, or
b. rely on the Convention right or rights concerned in any legal proceeding,
but only if he is (or would be) a victim of the unlawful act.”
In the circumstances of the present case, involving convictions recorded many years ago, it is relevant to note section 22(4):
“(4) Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that section does not apply to an act taking place before the coming into force of that section.”
It is convenient to set out here the terms of the Convention rights which have been the subject of submissions:
Article 4(2) ECHR (prohibition of slavery and forced labour) provides that:
“No one shall be required to perform forced or compulsory labour.”
Article 7 ECHR (no punishment without law) provides that:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. …”
Article 8 ECHR (right to respect or private and family life) provides that:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 14 ECHR (prohibition of discrimination) provides that:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
In addition to the caselaw cited by the parties, Ms Monaghan relies on a number of international instruments and reports, to which we will refer as appropriate.
The grounds of claim:
We turn now to the grounds of the claim and the submissions of the parties. In doing so, we shall for convenience refer to the Street Offences Act 1959 as “SOA 1959”, the Rehabilitation of Offenders Act 1974 as “ROA 1974”, the Police Act 1997 as “PA 1997” and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 as “the Exceptions Order”.
The claimants initially advanced seven grounds of their claim. William Davis J gave permission to proceed on three of those grounds. In relation to the grounds on which he refused permission, the claimants have abandoned one (ground 6) but have renewed their application for permission in respect of the other three (grounds 2, 5 and 7). They have also applied for permission to amend grounds 1 to 4 in order to encompass the relevant provisions of PA 1997 as well as those of the Exceptions Order. We agree with Ms Gallafent that it is not entirely accurate in this context to speak (as the amended grounds do) of “the parallel provisions of the Police Act 1997”, but we think it appropriate that all the relevant statutory provisions should be considered. We therefore grant permission to amend.
Ground 1:
Ground 1 (as amended) contends that “the exception in the Exceptions Order 1975 and the parallel provisions of PA 1997 requiring disclosure of the claimants’ spent convictions violate Article 8 ECHR because they are arbitrary and unlawful”. Permission to proceed on this ground was granted by William Davis J.
As has been indicated above, the Exceptions Order was amended in 2013 by introducing the category of protected convictions and cautions. The statutory provisions prior to that amendment were considered by the Supreme Court in R (T) v Chief Constable of Greater Manchester Police; R (B) v Secretary of State for the Home Department [2015] AC 49 (hereafter, T), and were held to be incompatible with Article 8 ECHR. Ms Monaghan relies on that decision and submits that the amendments introduced in 2013 have not cured the incompatibility with Article 8.
In T each of the two claimants had been issued, when very young, with a warning or caution for minor offences. Years later, each had been required to disclose the warning or caution when applying for employment. The Court of Appeal made declarations to the effect that both the disclosure provisions of PA 1997 and the provisions of the Exceptions Order were incompatible with Article 8. The defendants appealed to the Supreme Court. In relation to PA 1997, the appeal failed: it was held that the statutory provisions were not in accordance with the law because they contained no safeguards against arbitrary interferences with Article 8 rights. It was further held that, although it was necessary to check that persons wishing to work with children or vulnerable adults did not present an unacceptable risk to them, the disclosures required by Part V of PA 1997 were not based on any rational assessment of risk and so failed the test of being necessary in a democratic society. In relation to the Exceptions Order, the appeal succeeded on the ground that a declaration of incompatibility could not be granted in respect of subordinate legislation, and that in all the circumstances of the case no other judicial remedy was necessary. It was however held that, although the reason for the disclosure requirements was a legitimate aim, there was no rational connection between minor dishonesty as a child and the question whether as an adult that person might pose a risk to children. The requirement of disclosure therefore breached the requirement of necessity and thus was not justified. The majority held that it was not necessary to consider whether the Exceptions Order also failed the requirement of being in accordance with the law.
Lord Wilson, at paragraph 9, summarised the (unamended) provisions of the Exceptions Order in this way:
“It is the circumstances in which the question is asked which dictate whether an exception from protection under the 1974 Act arises; and when it arises, the duty to disclose in response to the question and the entitlement of the questioner to act in reliance on the disclosure or on a failure to do so are both absolute, being unrelated to the circumstances in which the spent conviction or the caution arose.”
As to the unamended provisions of Part V of PA 1997, he said this at paragraph 41:
“If the type of request was as specified, there had to be disclosure of everything in the kitchen sink. There was no attempt to separate the spent convictions and the cautions which should, and should not, then be disclosed by reference to any or all of the following: (a) the species of the offence; (b) the circumstances in which the person committed it; (c) his age when he committed it; (d) in the case of a conviction, the sentence imposed on him; (e) his perpetration or otherwise of further offences; (f) the time that elapsed since he committed the offence; and (g) its relevance to the judgment to be made by the person making the request.”
Lord Reed, at paragraph 113, said in relation to the challenge to PA 1997:
“Put shortly, legislation which requires the indiscriminate disclosure by the state of personal data which it has collected and stored does not contain adequate safeguards against arbitrary interferences with Article 8 rights.”
Lord Reed went on to indicate, at paragraph 114, that in order for the interference to be “in accordance with the law” there must be safeguards which made it possible adequately to examine the proportionality of the interference. He concluded, at paragraph 119, that the legislation failed to meet the requirements for disclosure to constitute an interference “in accordance with the law”, because of
“the cumulative effect of the failure to draw any distinction on the basis of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought, and the absence of any mechanism for independent review of a decision to disclose data under section 113A.”
In relation to the Exceptions Order, Lord Reed at paragraph 139 dismissed as immaterial the fact that an ex-offender was not strictly required to disclose his criminal record, because he could avoid doing so by not applying for jobs in the relevant sectors or by abandoning such an application when the inevitable question was asked. At paragraph 140 he found it convenient to consider first whether the Exceptions Order had a legitimate aim and was necessary in a democratic society. He acknowledged, at paragraph 141, that in principle, measures designed to facilitate the vetting of applicants for positions such as those involving the care of children and vulnerable adults would have a legitimate aim. He continued
“142 I cannot however see any rational connection between minor dishonesty as a child and the question whether, as an adult, the person might pose a threat to the safety of children with whom he came into contact. There is therefore no rational connection between the interference with article 8 rights which results from the requirement that a person disclose warnings received for minor dishonesty as a child, and the aim of ensuring the suitability of such a person, as an adult, for positions involving contact with children, let alone his suitability, for the remainder of his life, for the entire range of activities covered by the 1975 Order.
143 It can only be concluded that the interference in issue in this case was not necessary in a democratic society to attain the aim of protecting the safety of children.”
The amendments to PA 1997 and to the Exceptions Order which came into effect in 2013 were intended to rectify the problem identified in the course of the proceedings in T. The issue of whether the amendments had succeeded in that aim, and whether the amended scheme of PA 1997 and the Exceptions Order was compatible with Article 8, was considered by the Court of Appeal in R (on the application of P and others) v Secretary of State for the Home Department [2017] EWCA Civ 321 (hereafter, “P”). Sir Brian Leveson PQBD, with whom Beatson and Thirlwall LJJ agreed, began his judgment by referring to “the interface of two important principles of social policy”: the rehabilitation of offenders, and the need to protect the public against those who, by reason of their past behaviour, may continue to present a risk. The particular features of the amended statutory provisions which were the focus of the challenge in that case were the multiple conviction rule (with which, of course, the present case is also concerned) and the serious offence rule (that is, the obligation of disclosure in relation to certain specified offences). Sir Brian reflected on the ratio of the decision in T, as set out in the speech of Lord Reed, and concluded at paragraph 44 that, without a mechanism for refinement, neither rule was “in accordance with the law”:
“The multiple conviction rule is indiscriminate in that it applies without consideration of any of the features identified by Lord Reed. If an individual has been convicted of more than one offence, the rule will apply automatically irrespective of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought. Therefore, in my view, Lord Reed would conclude that it is not ‘in accordance with the law’, unless there is a mechanism for independent review.”
Sir Brian then went on to consider whether, even if the revised system met the requirement of being in accordance with the law, it would necessarily be compatible with Article 8 having regard to the requirement that it must also be “necessary in a democratic society”. He noted counsel’s submission that the amended legislation did not fairly balance the rights of the individual and the interest of the community in public protection, because of the indefinite nature of the requirement of disclosure and the complete absence of relevance of the past offending to a particular job application which might be made many years later. He reflected on ways in which the scheme might be amended to provide a filter beyond a bright line position. At paragraph 66 he said:
“… it is not for the court to fashion a solution and, ultimately, it is a matter for the legislature to ascertain whether as a matter of practice rather than legal theory, what system is appropriate. It must be appreciated, however, that without some mechanism to ensure that disclosure is proportionate and linked to the protection of the public (therefore being necessary in a democratic society), it is difficult to see how challenges of the type raised in these cases can be avoided. It is not that the concept of the revised scheme necessarily offends Article 8, but it may be that in its operation in individual cases, it does so. If left to the courts as the scheme is presently devised, in my judgment, it will generate many challenges which will require resolution on a case by case basis: such an approach cannot possibly be in the public interest.”
The Court of Appeal in P concluded that the revised scheme contained in the amended legislation was not in accordance with the law and that, in the circumstances of the case before it, the operation of the multiple conviction rule had been disproportionate and otherwise than as is necessary in a democratic society.
There is a pending appeal to the Supreme Court in the case of P. It is to be heard later this year, together with an appeal from Northern Ireland raising similar issues: re Gallagher’s Application for Judicial review [2016] NICA 42. The Court of Appeal in Northern Ireland in that case considered the provisions applicable in Northern Ireland of the Police Act 1997, and the provisions (comparable to those in the Exceptions Order) of the Rehabilitation of Offenders (Exceptions) Order (NI) 1979, as amended by the Rehabilitation of Offenders (Exceptions) (Amendment) Order (NI) 2014. It was common ground that the scheme established by that legislation engaged Article 8. The court concluded that the amendments introduced to the statutory scheme which had been considered in T had, so far as the multiple conviction rule was concerned, merely replaced one blanket scheme with another. In relation to the 1997 Act, the court concluded that the amended scheme was neither in accordance with the law nor necessary. In relation to the 2014 Order, the court similarly found that it failed the necessity test, but accepted that the conclusion as to “in accordance with the law” could not automatically be extended to both schemes (because it was arguable that “the requirements of self-disclosure in the context of the 1979 Order as amended are somewhat less stringent than the particularly sensitive element of the use and disclosure by the State of personal data”) and found it unnecessary to make a decision as to necessity.
In the present proceedings, the defendants applied for a stay pending the Supreme Court’s determination of the appeals in P and Gallagher. They argued, not that the Supreme Court’s decision would determine every issue in this case, but that it would determine some and heavily influence others. The application was refused by this court (differently constituted) in late July 2017.
The claimants’ case
Ms Monaghan submits that the offence of soliciting contrary to section 1 of SOA 1959 is a minor offence, as is demonstrated by the limited sentencing powers available to a magistrates’ court dealing with such an offence and by the sentences in fact imposed on the claimants for their offences. The offence of soliciting is only recordable at all because specific provision is made to that effect in paragraph 3 of the 2000 Regulations (see paragraph 17 above). The offences of which the claimants have been convicted were all committed many years ago, and it is only because of the multiple conviction rule that the claimants do not have the benefit of the provisions relating to protected convictions. She submits that the past convictions cannot properly be regarded as indicating any present risk to others. Even if they can be said to show a pattern of offending, it is not a pattern which has any relevance to the present suitability of the claimants for employment of the kind for which they would wish to apply. The disclosure requirements operate as a deterrent to seeking employment, have prevented the claimants from obtaining employment, and involve the revelation of very personal aspects of the claimants’ private lives. In those circumstances, Ms Monaghan argues that the statutory amendments of 2013 have not made any change which materially alters the pre-2013 statutory provisions which the Supreme Court in T found to be incompatible with Article 8: the present scheme still fails to draw any distinction on the basis of the nature of the offences, the date when they were committed, the penalty imposed or the relevance of the data to the employment sought; and still does not include any system of independent review of a disclosure requirement. She therefore invites the court either to make a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998 or to grant a declaration.
The defendants’ case
The defendants resisted the claimants’ application for permission to amend, on the basis that it was academic and unnecessary because (as they accept) this court is bound by the decision in P that the multiple conviction rule in PA 1997 is not in accordance with the law. As to whether that rule is necessary and proportionate, Ms Gallafent submits that the present case can be distinguished from P, because here the multiple convictions show a pattern of behaviour by each claimant, whereas no such pattern was shown in P. This court is therefore not bound by P on this issue, and she submits that the multiple conviction rule is necessary, because employers should have the information which they need to make a proper assessment of risk.
The defendants accept that the Exceptions Order interferes with Article 8 rights. They argue however that, although the Exceptions Order and PA 1997 work together (including because information disclosed pursuant to PA 1997 must be required for the purpose of answering a question falling within the Exceptions Order), they are not coterminous, and that accordingly caselaw relating to the one cannot simply be read across to the other. Ms Gallafent submits that under the Exceptions Order, the state itself does not impose an obligation upon the individual to disclose her criminal convictions. She therefore argues that the involvement of the state, and the degree of intrusion by the state into the private life of an individual, are minimal. She distinguishes the Exceptions Order from PA 1997 in this regard, and submits that the approach which the Supreme Court took to PA 1997 in T should not be carried across to the Exceptions Order. In particular, she argues that the jurisprudence of the European Court of Human Rights on which Lord Reed relied in T reflected a very particular approach which, she submits, does not apply to the Exceptions Order. She submits that in relation to the Exceptions Order, the appropriate test of whether the Order is “in accordance with the law” is by application of the well-established principles stated (with reference to the phrase “prescribed by law” in Art 10) in Sunday Times v UK (1979-80) 2 EHRR 245 at paragraph 49:
“In the Court’s opinion, the following are two of the requirements that flow from the expression ‘prescribed by law’. First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.”
In Malone v UK (1985) 7 EHRR 14, similar principles were applied to the phrase “in accordance with the law” in Article 8, which was said to imply that
“there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1.”
Applying those principles, Ms Gallafent submits, the Exceptions Order is in accordance with the law.
Ms Gallafent acknowledges that a similar argument was rejected by a Divisional Court in R (R) v National Police Chiefs’ Council and Secretary of State for Justice [2017] EWHC 2586 (Admin), but notes that the decision in that case is presently under appeal (though the appeal may be stayed pending the determination of the appeal to the Supreme Court in P). She submits that the decision in R was made per incuriam (because the court assumed that the test of “in accordance with the law” was the same in relation to both the Exceptions Order and PA 1979) and in any event this court is not bound by it.
In R the application of the Exceptions Order to “low level historical reprimands” was challenged as being a violation of Article 8 rights. In relation to such reprimands, but specifically without reference to other cases, the court accepted the claimant’s submissions (themselves relying on T and P) and concluded that the Exceptions Order did violate Article 8, both because it was not “in accordance with the law” and also because it was therefore “not necessary in a democratic society”. Ms Monaghan in her response relied on this.
Ms Gallafent develops her submission by arguing that the Exceptions Order cannot be said to be arbitrary. ROA 1974 and the Exceptions Order together set out a coherent scheme which requires certain questions to be answered by an individual applying for particular categories of employment, and the multiple conviction rule is justified because there is a clear public interest in an employer being able to assess whether a prospective employee has shown a pattern of offending and a willingness to break the law. In the Order, and in its amendments, Parliament has made careful choices which do differentiate on the basis of the type of offence, the offender’s age, the nature of the disposal, the time which has elapsed and whether the individual has committed any other offence, but which also take account of the need to protect the public. Multiple convictions can show a pattern of offending (as indeed, she submits, it did in the cases of these claimants), which is a legitimate reason for the multiple conviction rule. She accepts that a pattern of offending was not shown in P, but argues that the facts of the present case are different and that nothing in P requires this court to find that the obligation of disclosure is not necessary in a democratic society.
Ms Gallafent relies on the detailed evidence contained in witness statements by two officials in the Ministry of Justice, Julia Gerrard and Alison Foulds, each of whom has held the post of policy lead on ROA 1974. This evidence explains the history of the amendments to ROA 1974 and the introduction of filters in accordance with recommendations made in a 2010 report by Mrs Sunita Mason, A Balanced Approach. The report recommended, amongst other things, that those who had incurred a minor conviction or caution should after a period of time be given a second chance, a recommendation which led to the multiple conviction rule. The evidence shows that a significant proportion of those who have a criminal record have only one conviction, which suggests that the terms of the amended legislation benefit a significant proportion. The evidence is relied upon as explaining and justifying the “many nuanced decisions” which are best taken by an employer who knows what is relevant to the employment for which an individual with a criminal record applies. It is also relied on as supporting the submission that the 2013 amendments did make significant changes and created a balanced filtering system. Ms Gallafent submits that the Exceptions Order sets out a self-disclosure regime which is in accordance with the law and necessary in a democratic society.
Ms Gallafent provided the court with a note on statistics in which a filter had been applied to the total number of CRCs and ECRCs issued during a particular period, in order to show the effects of the 2013 amendments in respect of applicants with a single recorded conviction or caution. The statistics show that the 2013 amendments would reduce the number of CRCs issued in such circumstances by about 26%, and the number of ECRCs by about 32%. Ms Gallafent relies on this to support her submission that the 2013 amendments have made a real difference. It may be noted that the statistics also show, to our surprise, that between 2012 and 2015 the total number of ECRCs issued annually was of the order of 3.7 – 3.8 million. The total number of CRCs, in contrast, was of the order of 235,000 – 280,000.
In the course of her submissions, Ms Gallafent also referred to guidance published by the government in relation to ROA 1974 which gives the following advice about what employers should consider when employing ex-offenders:
“Each employer is best placed to consider whether a person’s convictions (either before they have become spent or, in the case of activities listed in the Exceptions Order, when they are spent) make him or her unsuitable for a particular job. But it is important that you should reach a balanced judgment, having regard to such factors as
a. the person’s age at the time of the offence;
b. how long ago the offence took place;
c. whether it was an isolated offence or part of a pattern of offending;
d. the nature of the offence;
e. its relevance to the post or position in question; and
f. what else is known about the person’s conduct before or since the offence.
The DBS Code of Practice requires registered employers to have a fair and clear policy towards ex-offenders and not to discriminate automatically on the basis of an unprotected conviction or caution.”
Conclusion as to Ground 1:
We accept that we are bound by P to conclude that the statutory scheme under sections 113A and 113B of PA 1997 is not in accordance with the law, because the multiple conviction rule operates in the indiscriminate, and hence arbitrary, manner summarised at paragraph 44 of P – a paragraph which carries particular resonance when we look at the checklist of relevant factors in the Guidance which we have quoted in paragraph 54 above, all of which are important but none of which plays any part in the blanket operation of the scheme. Nor is it necessary in a democratic society that the desirable aim of safeguarding children and vulnerable adults should be achieved by the use of the multiple disclosure rule under PA 1997. We note that in P only one of the conjoined appeals – that of P – raised an issue as to the multiple conviction rule. The Court of Appeal, at paragraph 77, held that in the circumstances of that case, the rule was disproportionate and failed the test of necessity.
We would have reached the same conclusion even if not bound by P, in particular because the facts of this case vividly illustrate the fact that the multiple conviction rule operates in circumstances in which any link between the past offending, and the assessment of present risk in a particular employment, is either non-existent or at best extremely tenuous.
As to the Exceptions Order, we have carefully considered Ms Gallafent’s emphasis on the cautious approach adopted by the Supreme Court in T, and by the Court of Appeal in Northern Ireland in Gallagher, to the differences between PA 1997 and the Exceptions Order (or its equivalent) in respect of the extent of State interference. In each of those cases, the court found it unnecessary to resolve the issue of whether the multiple conviction rule under the Exceptions Order (or its equivalent) was in accordance with the law. We note however that in P the court looked at the overall scheme under both the Act and the Order, as did the court in R. In our view, it is right to adopt a similar approach in the circumstances of this case, and there is nothing in T which binds us to take a different course. We accept Ms Gallafent’s submission that the Act and the Order are not coterminous; but so far as the multiple conviction rule is concerned, they operate together, and we cannot see why a scheme which is unlawful so far as PA 1997 is concerned is saved, in relation to the Exceptions Order, by the fact that the individual concerned has a choice whether to apply for a particular form of employment. An individual who wishes to apply for work in a relevant field may be asked questions about her or his previous convictions, and is required to verify the answers by a CRC or ECRC, only because of the combined effect of the Act and the Order. We conclude that in the circumstances of the present case the multiple conviction rule under the Exceptions Order is neither in accordance with the law nor necessary in a democratic society. Our reasons are as follows.
First, we are not persuaded by Ms Gallafent’s submissions that a different approach should be taken to the question of whether the provisions of the Exceptions Order are in accordance with the law. But even if she is correct about that, it seems to us that the application of the approach for which she contends would lead to the same result. In our judgment, the principle stated in Malone (see paragraph 48 above) works against Ms Gallafent’s submission rather than in her favour: the Exceptions Order does result in interferences with the claimants’ Article 8 rights which are arbitrary in the sense that they bear no, or very little, relationship to the aim of safeguarding children and vulnerable adults.
Secondly, it seems to us that the approach for which Ms Gallafent contends would work against that aim in two respects: first, by requiring disclosure by all those who have been convicted on two or more occasions of soliciting, without reference to their personal circumstances or their present situation, it would exclude some applicants whose ability to empathise with and assist those for whom they seek to care has in fact been enhanced by their experience of having graduated from a school of very hard knocks; and secondly, by making it harder for persons in the position of the claimants to obtain employment, it would be capable of causing at least some to remain in prostitution when they wish to leave it.
Thirdly, whilst there is of course force in the point that it is the employer who is best placed to assess the risk posed by a particular applicant for a particular position, that in our judgment does not provide a complete justification for the present scheme. First, and most importantly, it provides no justification at all for requiring disclosure in circumstances where no reasonable employer could possibly regard the previous convictions collectively, or the previous conviction(s) for soliciting in particular, as having any relevance at all to the assessment of present risk in the employment concerned. In this regard, we agree with Ms Monaghan that it is not sufficient to say that convictions for two or more offences may show a pattern of offending if that pattern cannot rationally have any relevance to the job application. Secondly, as Lord Wilson pointed out in a passage which we quote at paragraph 65 below, it is very likely that the result of disclosure will be that another applicant will be preferred to the ex-offender, whether or not that is objectively justified. It may be otherwise, and it may that an employer will choose not to ask a question which requires disclosure; but the experience of the claimants has been that relevant questions are asked, and the disclosure of previous convictions for soliciting is not followed by an offer of employment. We see no reason to doubt that the experience of the claimants is likely to be typical of others in similar positions. We note that subsections 1(2A) and 1(2B) of SOA 1959 recognise the desirability of supporting those who wish to leave prostitution, and we think it unfortunate that the multiple conviction rule works against that aim.
Fourthly, we accept Ms Monaghan’s broader submissions that the mere fact of disclosure of past convictions for soliciting carries with it embarrassment and stigma which cannot be undone, whatever the outcome of the job application. Even if the job application is successful, the person concerned will be working in the knowledge that one or more persons in her employer’s organisation is aware of highly personal details about her which have been no impediment to her employment.
We accept that the claimants have all suffered a handicap in the labour market, and have suffered embarrassment and humiliation, because of the operation of the multiple conviction rule. In our view, it should be and is possible for Parliament to devise a scheme which more fairly balances the public interest with the rights of an individual applicant for employment in relevant areas of work. It may be that only broad lines can be drawn to act by way of filter before the employer is left to assess the risk. But that is not a good reason for adopting the blanket approach which the present schemes adopt in widely-differing circumstances. As was said in P, it is not for the court to devise a scheme.
We therefore conclude that the claim succeeds on this ground. Both under PA 1979 and under the Exceptions Order, the application of the multiple conviction rule to the circumstances of this case results in an interference with the claimants’ Article 8 rights which is neither in accordance with the law nor necessary in a democratic society. To that extent, the schemes are unlawful.
Ground 2:
Ground 2 (as amended) contends that “the exception in the Exceptions Order 1975 and the parallel provisions of PA 1997 requiring disclosure of the claimants’ spent convictions under section 1 of SOA 1959 violate Article 8 ECHR because they are arbitrary and unlawful”. Permission to proceed on this ground was refused by William Davis J.
The claimants’ case
The claimants make the same submissions as they have in respect of Ground 1, but add that there is no evidence that their convictions for soliciting can be an indicator of present risk if they are employed with children or vulnerable adults. They submit further that it is no answer to say that the statutory provisions properly enable an employer to make an assessment of risk, because the process of leaving that assessment to an employer of itself results in harm to those who, like the claimants, were once (but are no longer) engaged in prostitution. Ms Monaghan relies on an observation by Lord Wilson at paragraph 45 of T:
“The Secretaries of State say, second, that the regime reflected a conclusion by Parliament that it was preferable to make the prospective employer or other registered person the judge of the relevance of the disclosure to his decision. Rely on him (they say) to sift the wheat from the chaff. But will he do so? In these days of keen competition and defensive decision-making, will the candidate with the clean record not be placed ahead of the other, however apparently irrelevant his offence and even if otherwise evenly matched? More fundamentally, the regime reflects an exception to the eradication of the offence under the 1974 Act and it is the fact, or even the potentiality, of disclosure, whatever its ultimate consequences, which causes the interference and for the person creates, as a minimum, embarrassment, uncertainty and anxiety.”
Ms Monaghan submits that those words apply with particular force in the present case, having regard to the nature of the convictions in question and the stigma which attaches to the claimants’ past engagement in prostitution.
Ms Monaghan makes the further point that in the context of previous convictions for offences of soliciting, disclosure or the potential for disclosure not only causes psychological harm to persons in a position similar to that of the claimants but also impedes the ability of a woman to leave prostitution.
The defendants’ case
Ms Gallafent submits that this ground is otiose, because if ground 1 succeeds, ground 2 is embraced within it. In any event, she submits that permission was rightly refused on this ground, which seeks to attack what she describes as a clear and logical bright line as to the disclosure of convictions of recordable offences. Such a bright line rule is permissible in principle, and the line which Parliament has drawn in this respect is obviously rational, even if it may produce hard cases at the margins. It is a proportionate approach because even though a conviction of an offence of soliciting contrary to section 1 of SOA 1959 is recordable, a single such conviction is not disclosable.
The defendants further submit that multiple convictions for soliciting offences are capable of being relevant to the assessment of risk by an employer working with children or vulnerable adults. It must be left to the employer to make that assessment, because the DBS cannot know all the details of the post or position under consideration. Ms Gallafent accepts that sex workers may have been exploited, but submits that it cannot be said that no risk ever arises. She does not suggest that multiple such convictions will always be relevant in that regard, but submits that they may be (for example, because of a risk that a child or vulnerable adult might be brought into contact with pimps) and that it should accordingly be left to an employer to make the necessary assessment. She rejects the claimants’ submissions that such an approach is no more than negative stereotyping, and that convictions for this type of offence cannot give rise to any risk in the context of later employment with children or vulnerable adults.
Conclusion as to Ground 2:
We agree with Ms Gallafent that this Ground is embraced within Ground 1 and that, as Ground 1 has succeeded, this ground has become otiose. If Ground 1 had failed, we agree with the observation of William Davis J when he refused permission on Ground 2: “there is nothing inherently unlawful in disclosure provisions being engaged in relation to minor offending”. We therefore conclude that this ground was not arguable and that permission was rightly refused.
Ground 3:
Ground 3 (as amended) contends that “the exception in the Exceptions Order 1975 and the parallel provisions of PA 1997 requiring disclosure of the claimants’ spent convictions under section 1 of SOA 1959 violate Article 14, read with Article 8 ECHR, because they are gender discriminatory”. Permission to proceed on this ground was granted by William Davis J.
Article 14 can only be considered in conjunction with one or more of the substantive Convention rights. It is accepted that by reason of the disclosure provision, Article 8 ECHR is engaged.
In R (on the application of SG & others) v Secretary of State for Work and Pensions [2015] UKSC 16 Lord Reed identified the general approach to the application of Article 14 as follows:
“7. The general approach followed by the European Court of Human Rights in the application of article 14 was explained by the Grand Chamber in Carson v United Kingdom (2010) 51 EHRR 13, para 61:
‘In order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.’
…
12. Article 14 is not confined to the differential treatment of similar cases: ‘discrimination may also arise where states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different’ (Pretty v United Kingdom (2002) 35 EHRR 1, para 87). An example is the case of Thlimmenos v Greece (2001) 31 EHRR 411, where this type of discrimination was first recognised.
13. The European court has also accepted that a difference in treatment may be inferred from the effects of a measure which is neutral on its face. In DH v Czech Republic (2008) 47 EHRR 59, the court stated at para 175:
‘The court has established in its case law that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. … The court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group.’
In such a case, it will again be necessary to consider whether the difference in treatment has an objective and reasonable justification, in the light of the aim of the measure and its proportionality as a means of achieving that aim. For example, a rule requiring that employees should be capable of heavy lifting will exclude a higher number of women than men, because of differences in the average bodily strength of the sexes. Whether that difference in treatment has an objective and reasonable justification will depend on whether the rule which results in the difference in treatment has a legitimate aim and is a proportionate means of realising that aim…”
The claimants’ case
The reality of the claimants’ case is a challenge to the multiple conviction rule set out in paragraph 2A(3)(c) of the Exceptions Order. It is accepted that the rule applies to all offences and is not gender specific. It is the claimants’ case that the rule, although neutral on its face, when read in conjunction with section 1 of SOA 1959, unlawfully discriminates against women. Thus, the challenge falls within the third type of discrimination identified by Lord Reed in SG above.
The claimants contend that:
i) Offences pursuant to section 1 of SOA 1959 are overwhelmingly committed by women. At the time of the claimants’ convictions they could only be committed by women;
ii) The nature of prostitution is such that those who commit the offence are likely to have committed it on multiple occasions, thus the multiple conviction rule impacts severely on those who have committed offences pursuant to section 1 of the 1959 Act;
iii) Most of the occupations for which disclosure of spent convictions are required are those within the caring and other professions where women are disproportionately employed;
iv) These measures impede a woman’s ability to exit prostitution.
Reliance is placed upon the authority of Opuz v Turkey (2010) 50 EHRR 28 citing the authority of DH v Czech Republic (2008) 47 EHRR 3 where it was stated that:
“…a general policy or measure that has disproportionately prejudicial effect on a particular group may be discriminatory notwithstanding that it is not specifically aimed at that group…”
In Thlimmenos v Greece (2001) 31 EHRR 15 the Grand Chamber at [44] stated:
“44. The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification. However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”
The Convention on the Elimination of All Forms of Discrimination against Women through its committee has recognised the gendered nature of prostitution. In Abdulaziz Cabales v Balkandalivuk (1985) 7 EHRR 471 gender is described as a “suspect” class. It is submitted that weighty reasons are required to justify any discrimination.
Following a request pursuant to the Freedom of Information Act 2000 the claimants have produced statistics which demonstrate that a significantly higher number of women than men are convicted under SOA 1959. Of those convicted, a significantly higher number of women have multiple convictions. Paul Ham, a solicitor instructed on behalf of the claimants, has produced a document entitled “Gender breakdown of exempted professions”, which demonstrates that certain occupations, for example teaching assistants, school support staff, adult social services are particularly female dominated. He states that the research shows that approximately 70% of women are affected by the Exceptions Order as compared with 30% men.
It is the claimants’ case that the offences pursuant to section 1 of SOA 1959 are intrinsically linked to the claimants’ gender and so should not be treated differently absent justification. There is said to be no justification for the discrimination. There is no relationship between the convictions and the objective sought, no proper balance has been struck. The women who have been convicted of these offences are being stigmatised and will be required to disclose these convictions throughout their lives. The lack of justification in respect of Article 8 is said to be even weightier in respect of Article 14 given the need to justify the sexual discrimination.
The defendants’ case
The defendants accept that:
i) Article 14 is engaged because disclosure of criminal records is within the ambit of Article 8;
ii) Article 14 extends to indirect discrimination, i.e. a gender neutral provision on its face which has a disproportionate impact on one gender;
iii) The section 1 offence is disproportionately committed by women;
iv) The employments and offences listed in the Exceptions Order, to which the exceptions in principle apply and are cross-referenced in sections 113A and 113B of the Police Act 1997, as a whole, are ones in which women are disproportionately represented by approximately two-thirds to one-third.
The defendants accept that the challenge is to the multiple conviction rule, albeit the focus of Ground Three is in respect of the section 1 offence. The defendants contend that the rule applies to all types of offence irrespective of gender. Reliance is placed upon statistics from figures collated in 2016/17 and provided by a Senior Executive Officer in the Public Protection Unit of the Home Office which identify the number of applicants for CRCs or ECRCs with multiple convictions for the same offences by reference to those offences. What are described as the “top ten offences” are set out: they include shoplifting, theft, obtaining property by deception, burglary and theft, and criminal damage. A significantly higher number of female offenders than male are convicted of the offence of shoplifting. The male/female statistics for the offence of obtaining property by deception are approximately the same. The remaining eight offences are recorded as showing significantly higher numbers of males with multiple convictions than females. The offence of soliciting contrary to section 1 of SOA 1959 is fifty-ninth in the list of total applications for certificates by those with multiple convictions.
Relying upon the statistics, the defendants submit that men have disproportionately heavier criminal records and commit more multiple offences than women. In terms of the general application of the multiple conviction rule, the gender discriminated against is men. As the multiple conviction rule applies to all offences, men and women, the response of the defendants to the question “Is the rule adversely impacting on women?” is that it is not. In considering the issue of discrimination the Court cannot ignore the treatment of men as a result of the rule. It is the rule to which the Court’s attention should be directed, not the individual offence.
Reliance is also placed upon the fact that a person in a similar position to the claimants is a male prostitute who, prior to 2003, would have been prosecuted pursuant to section 32 of the Sexual Offences Act 1956. The male would receive no protection from disclosure. Since the amendment in 2003 a man would be prosecuted pursuant to section 1 of SOA 1959. There would be no reason to suppose that disclosure of his convictions would have any different effect upon a man rather than upon a woman. There would be no difference in treatment of the relevant male comparator irrespective of whether there are more female prostitutes than men.
In any event, the legislative regimes would be justified as a proportionate means of achieving a legitimate aim. The regime as a whole heavily favours disclosure in respect of men rather than women at every stage of the analysis save for this identified offence. The only exception to this may be said to be the proportion of women in the totality of roles, employment and offices covered by the Exceptions Order. There is no challenge to the inclusion of any of those employments or offices within these proceedings. Moreover they are employments or offices which require interaction with vulnerable people or the highest levels of personal integrity.
Conclusion as to Ground 3:
We accept that the provisions of Article 14 ECHR are engaged and that the argument falls within the third category of discrimination identified by Lord Reed in SG (above). The specific challenge is to the multiple conviction rule in the Exceptions Order, linked to sections 113A to 113B of the 1997 Act. A disproportionately high percentage of women commit the offence of soliciting contrary to section 1 of SOA 1959, a disproportionately high proportion of women have multiple convictions for these offences and a significantly higher proportion of women seek employment in the sectors where certification pursuant to the provisions of the 1997 Act is required.
On its face the multiple conviction rule is gender neutral, it applies to all offences and genders. Identifying a particular offence, namely section 1 of SOA 1959, illustrates a particularly limited example of the application of the rule, as demonstrated by the statistics provided by the defendants set out in paragraph 81 above. The application of this rule, where it pertains to the section 1 offence, does result in a disproportionately high number of women being required to disclose spent convictions. However, this offence cannot be viewed in isolation in terms of the general operation of the multiple conviction rule.
The undisputed statistical evidence shows that men, rather than women, are disproportionately more likely to have a criminal record, to have been convicted of a recordable offence, to bring themselves within the multiple conviction rule and to have committed particular types of offences including sexual offences. As a result the criminal records disclosure regime, in fact, disproportionately affects more men than women. Put shortly, the general operation of the rule does not adversely impact upon women.
There is a sound justification for the rule and the linked provisions of the 1997 Act. It is the protection of those who are vulnerable, be they adults or children, together with the need in other related sectors for individuals of the highest integrity. That aim is the same whether the individual with the multiple convictions be male or female. So far as any issue of gender discrimination is concerned, the legislative regimes are a proportionate means of achieving these legitimate aims. It follows that upon Ground Three the claimants have not made out their case.
Ground 4:
Ground 4 (as amended) contends that “the exception in the Exceptions Order 1975 and the parallel provisions of PA 1997 to the extent that it requires disclosure of the claimants’ spent convictions under section 1 of SOA 1959 violate Article 4 ECHR and Directive 2011/36/EU”. Permission to proceed on this ground was granted by William Davis J.
The claimants’ case
The claimants’ case upon this Ground has altered. It is now stated to be that the material provisions of the 1997 Act and the Exceptions Order, to the extent that they require disclosure of the claimants’ spent convictions pursuant to section 1 of SOA 1959, violate Article 4 ECHR and Directive 2011/36/EU because they penalise victims of trafficking and violate the right to anonymity for victims of trafficking.
Each of the claimants is alleged to have been internally trafficked by pimps. In penalising such behaviour by convicting the claimants of offences related to that trafficking and then requiring disclosure of the convictions in the circumstances set out in the Exceptions Order, the defendants are said to be violating the positive obligations in Article 4 to protect trafficking victims. They are also continuously violating the non-penalisation provisions in Article 4 read with the Council of Europe Convention on Action against Trafficking in Human Beings and Directive 2011/36/EU. Accordingly the exception and its impact upon the claimants are unlawful.
Article 4(2) ECHR, quoted in paragraph 31 above, encompasses trafficking: Rantsev v Cyprus & Russia (2010) 51 EHHR 1. It also imposes positive obligations to protect victims of trafficking: LE v Greece [2016] App. No. 71545/12 [64-5], OOO v Commissioner of Police for the Metropolis [2011] EWHC 1246 (QB). Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings provides that:
“Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.”
Directive 2011/36/EU
The Directive “On preventing and combating trafficking in human beings and protecting its victims” is directly effective. Article 2 defines trafficking consistently with other international instruments as follows:
“Offences concerning trafficking in human beings
1. Member States shall take the necessary measures to ensure that the following intentional acts are punishable:
The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
2. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved.
3. Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs.
4. The consent of a victim of trafficking in human beings to the exploitation, whether intended or actual, shall be irrelevant where any of the means set forth in paragraph 1 has been used.
5. When the conduct referred to in paragraph 1 involves a child, it shall be a punishable offence of trafficking in human beings even if none of the means set forth in paragraph 1 has been used.
6. For the purpose of this Directive, ‘child’ shall mean any person below 18 years of age.”
Article 8 provides:
“Non-prosecution or non-application of penalties to the victim
Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2.”
The United Nations Convention against Transnational Organised Crime (the Palermo Protocol) contains the same definition of trafficking. At Article 6 it is stated:
“1. In appropriate cases and to the extent possible under its domestic law, each State Party shall protect the privacy and identity of victims of trafficking in persons, including, inter alia, by making legal proceedings relating to such trafficking confidential.”
It is the claimants’ contention that Article 4 ECHR must be read consistently with the Council of Europe Convention, the EU Directive and the United Nations Palermo Protocol with the result that a scheme which requires or permits disclosure of offences pertaining to trafficking, without appropriate safeguards, penalises the victims of trafficking and violates their right to anonymity.
As to anonymity, the retention and disclosure of such data is said to violate the right of anonymity contained within the Council of Europe Convention above and the Palermo Protocol. They operate as further “penalisation” and undermine the objectives of the non-penalisation provisions including rehabilitation.
The defendants’ case
The defendants accept that human trafficking falls within the scope of Article 4 ECHR and that in certain circumstances Article 4 may impose positive obligations on states to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour: see Rantsev above. However, there is no domestic or Strasbourg authority for the proposition that Article 4 imposes a positive obligation on states to ensure that no criminal conviction from prostitution offences is ever disclosed. None has been cited.
As to the claimants’ reliance on Directive 2011/36/EU Article 8 (transposition date of 6 April 2013) and the Convention on Action against Trafficking in Human Beings, Article 26, which although in force for the United Kingdom, has not been incorporated into domestic law, it is the defendants’ case that the United Kingdom has implemented the provisions of Article 8 of the Directive and Article 26 of the Convention through section 45 of the Modern Slavery Act 2015. This provision states:
“45. Defence for slavery or trafficking victims who commit an offence
(1) A person is not guilty of an offence if—
(a) the person is aged 18 or over when the person does the act which constitutes the offence,
(b) the person does that act because the person is compelled to do it,
(c) the compulsion is attributable to slavery or to relevant exploitation, and
(d) a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act.
(2) A person may be compelled to do something by another person or by the person’s circumstances.
(3) Compulsion is attributable to slavery or to relevant exploitation only if—
(a) it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or
(b) it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation.
(4) A person is not guilty of an offence if—
(a) the person is under the age of 18 when the person does the act which constitutes the offence,
(b) the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and
(c) a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act.”
There is no authority for the proposition that disclosure of a criminal record is a penalty in the sense that term is used by the Directive or the Convention. Article 7 ECHR states:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. …”
Article 8 of the 2011 Directive contains the obligation upon Member States to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking for their involvement in criminal activity which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2 (see paragraph 93 above). Article 3 provides for the inciting, aiding and abetting or attempting to commit any of the offences referred to in Article 2. Article 4 provides as follows:
“Penalties
1. Member States shall take the necessary measures to ensure that an offence referred to in Article 2 is punishable by a maximum penalty of at least five years of imprisonment.
2. Member States shall take the necessary measures to ensure that an offence referred to in Article 2 is punishable by a maximum penalty of at least 10 years of imprisonment where that offence:
(a) was committed against a victim who was particularly vulnerable, which, in the context of this Directive, shall include at least child victims; EN L 101/6 Official Journal of the European Union 15.4.2011
(b) was committed within the framework of a criminal organisation within the meaning of Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime;
(c) deliberately or by gross negligence endangered the life of the victim; or
(d) was committed by use of serious violence or has caused particularly serious harm to the victim.
3. Member States shall take the necessary measures to ensure that the fact that an offence referred to in Article 2 was committed by public officials in the performance of their duties is regarded as an aggravating circumstance.
4. Member States shall take the necessary measures to ensure that an offence referred to in Article 3 is punishable by effective, proportionate and dissuasive penalties, which may entail surrender.”
These provisions are clear. The penalties, as defined, are those imposed following a conviction for a criminal offence as identified by Article 2. The “penalties” identified in Article 4 are contrasted with “sanctions” in respect of “legal persons” contained in Article 6. There is nothing in Article 4, nor within the Directive or the Convention, which extends the meaning of penalty beyond punishment for a criminal offence. The requirement of disclosure is an adverse consequence of criminal offending, it is not a penalty.
The arrangements now in place satisfy the requirements of Article 8 of the Directive, namely the prosecutorial discretion given to the CPS not to prosecute victims of trafficking involved in criminal activities which they have been compelled to commit as a direct consequence of being subjected to acts of trafficking. The availability of any such prosecution being stayed as an abuse of process was recognised in R v L & Others [2013] EWCA Crim 991. Section 45 of the Modern Slavery Act 2015 provides a complete defence for slavery or trafficking victims who commit an offence attributable to slavery or relevant exploitation.
The possible criminal liability of the trafficked victim was recognised by Lord Hughes in Hounga v Allen [2014] UKSC 47 at [64]:
“64. Thus, the internationally recognised rule is clear, as is English criminal law. The trafficked victim, assuming that is what she is, is not relieved of criminal liability for an offence which she has committed. If, however, she was compelled to commit it as a direct consequence of being trafficked, careful consideration ought to be given to whether it is in the public interest to prosecute her. In the present case, there is no finding that Miss Hounga was compelled to commit the immigration offences which she committed; the tribunal understandably found that she was well aware of what she was doing and voluntarily did it in the hope of advantage. Young as she clearly was, she was no doubt under the influence of Mrs Allen and that would constitute very real mitigation if punishment were in question. But what her trafficking, if that is what it was, does not do is to take away the illegality of what she knowingly did.”
The fact of a conviction pursuant to section 1 of SOA 1959 does not of itself mean that the person who committed the offence is a victim of trafficking.
Anonymity
Article 11 of the Council of Europe Convention on Action Against Trafficking in Human Beings provides:
“Each party shall protect the private life and identity of victims. Personal data regarding them shall be stored and used in conformity with the conditions provided for by the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108).”
This Convention has not been incorporated into domestic law and is not binding. No right to anonymity has been identified which would be offended by the disclosure of criminal records. The fundamental problem with the claimants’ submission is that any right to anonymity is in respect of being a victim of trafficking, but a conviction for the section 1 offence does of itself not reveal such a fact.
Conclusion as to Ground 4:
There is nothing in the disclosure of an offence pursuant to section 1 of SOA 1959 which of itself indicates that the offender is a victim of trafficking. There is no provision in domestic law or the cited Directive or Convention which identifies the disclosure of such an offence as being a penalty. Article 7 ECHR read with Articles 2 to 4 of the Directive 2011/36/EU are clear; the penalty is the imposition of the punishment following a criminal conviction, it is not the adverse consequence which can flow from a criminal conviction.
As to the obligations set out in the identified Directive, Convention and Protocol there is nothing which indicates that the United Kingdom is in breach of its international obligations with regard to the victims of trafficking. On the contrary, section 45 of the Modern Slavery Act 2015 provides a complete defence to a victim of trafficking in respect of any criminal offence. The availability of such a defence would be taken into account by a prosecuting authority when deciding whether it is in the public interest to prosecute any person.
The claimants have made bold assertions in respect of their case on “penalty” but there is no authority which begins to provide a legal basis for their arguments.
The fundamental problem with the claimants’ case upon a right to anonymity is that it relates solely to an offender being a victim of trafficking. A conviction for an offence pursuant to section 1 of SOA 1959 does not reveal such a fact. Accordingly, this submission also fails.
Ground 5:
Ground 5 contends that “the recording and/or retention of data concerning convictions under section 1 of SOA 1959 violates Article 4 and/or Article 8 and/or Article 14 read with Article 8 ECHR and is unlawful”. Permission to proceed on this ground was refused by William Davis J on the basis that it added nothing to other grounds.
The claimants’ case
Ms Monaghan argues that this ground does add something to other grounds, because it concerns recording and retention of data alone, irrespective of disclosure. First, she submits that the mere recording and retention of data violates Article 4 (because of the absence of safeguards and the continuing penalisation of the claimants), and Articles 8 and 14 (because it is discriminatory for the reasons argued in relation to grounds 3 and 4). Secondly, she submits that the recording and retention of data about past convictions is an interference with Article 8 rights which requires justification, but no justification exists. In this respect she relies on paragraphs 16-18 of the speech of Lord Wilson in T. Lord Wilson first quoted from the speech of Lord Hope in the earlier case of R (L) v Commissioner of Police for the Metropolis [2010] 1 AC 410 at para 27:
“… information about an applicant’s convictions which is collected and stored in central records can fall within the scope of private life within the meaning of article 8.1, with the result that it will interfere with the applicant’s private life when it is released. It is, in one sense, public information because the convictions took place in public. But the systematic storing of this information in central records means that it is available for disclosure under Part V of the 1997 Act long after the event when everyone other than the person concerned is likely to have forgotten about it. As it recedes into the past, it becomes part of the person’s private life which must be respected.”
Lord Wilson went on to accept a submission that the point at which a conviction receded into the past and became part of a person’s private life will usually be the point at which it becomes spent under ROA 1974, which he regarded as “a neat and logical suggestion which this court should adopt”.
Ms Monaghan argues that, just as there is no justification for the disclosure of information about past convictions of offences of soliciting contrary to section 1 of SOA 1959 (her Ground 2 argument), so there is no justification for recording and retaining that information. Ms Monaghan further submits that the recording and retention of such information violates Article 14 (read with Article 8), for the reasons which she has argued under Ground 3; and violates Article 4 and the Directive 2011/36/EU because it conflicts with the positive obligations therein to protect victims of trafficking and with the provisions as to non-penalisation and anonymity.
The defendants’ case
The defendants submit that this ground is unarguable and that permission was rightly refused. Although the recording and retention of criminal record data engages Article 8, it interferes with Article 8 rights to only a limited extent. Ms Gallafent refers to a number of decided cases for the proposition that the need for a comprehensive database of criminal convictions is compatible with Article 8 and is both necessary and proportionate to the legitimate aims of detecting and preventing crime and protecting the rights of others. It is not necessary to cite each of them but, by way of example, R (C & J) v Commissioner of Police for the Metropolis [2012] EWHC 1681 (Admin) at paragraph 61, was a case in which the court held that retention on the PNC record of information about an individual’s arrest for (but not conviction of) an alleged rape was not a disproportionate interference with the individual’s Article 8 rights. At paragraph 61 Richards LJ (with whom Kenneth Parker J agreed) said –
“It seems to me that a PNC record that did not include the basic history of [the individual’s] involvement with the police would be an incomplete and potentially misleading record. Moreover, if a similar allegation were made against [the individual] in the future, it would be profoundly unsatisfactory if it fell to be considered without knowledge of the earlier allegation and the arrest and investigation to which it gave rise. I am satisfied that retention of this kind of information in the PNC record is justified on any view. If it engages Art 8 at all, the interference with [the individual’s] right to respect for his private life is small and is plainly proportionate.”
Ms Gallafent understandably places emphasis on the fact that the court was there concerned with a record of an allegation, not of a conviction; and she refers to other decided cases which also refer to the need for a criminal record to be complete because otherwise it may potentially be misleading (see, eg, Chief Constable of Humberside Police v Information Commissioner [2009] EWCA Civ 1079 per Hughes LJ at paras 107-111).
Ms Gallafent submits that the existence of the offence of soliciting contrary to section 1 of SOA 1959 does not breach any Convention rights (a point more fully considered under Ground 7 below), and that it is therefore impossible to argue that the recording and retaining of data about convictions for such an offence involves a breach of Convention rights merely because more women than men are convicted of the offence. The retention of such data is necessary because section 1 prescribes a different maximum penalty for a second subsequent conviction; it is justified under Article 8; and Article 4 is not engaged and adds nothing.
Conclusion as to Ground 5:
We can state our conclusion on this ground briefly. We can accept Ms Monaghan’s submission that this ground does seek to add something to other grounds. The ground is, however, unarguable, for the reasons given by Ms Gallafent. There is only a very limited interference with an individual’s Article 8 rights when the State records and retains information about criminal convictions, and that limited interference is plainly justified in the public interest – especially where, as is the case under section 1 of SOA 1959, the maximum penalty is increased when there is a conviction of a second or subsequent offence. In our judgment, there is no merit in this ground and we refuse permission.
As has been indicated, ground 6 is no longer pursued.
Ground 7:
Ground 7 contends that “the criminalising of conduct falling within the scope of section 1 of SOA 1959 violates Article 8 read with Article 14 ECHR because it is gender discriminatory”. Permission to proceed on this ground was refused by William Davis J on the basis that it added nothing to other grounds.
The claimants’ case
Ms Monaghan again argues that this ground does add something to other grounds, because it concerns the legality of section 1 of SOA 1959. She denies that this ground raises only a hypothetical point, because none of the claimants is now engaged in prostitution; on the basis that if the section itself violates Article 8, then there can be no lawful right to maintain, or to require disclosure of, criminal records. She relies on her Ground 3 submissions as to the gender-discriminatory effect of section 1, and repeats her argument that the criminalising of conduct falling within section 1 of SOA 1959 is discriminatory, and violates Articles 8 and 14, because it is overwhelmingly committed by women and disadvantages them.
Ms Monaghan seeks to support her submissions by reference to a number of international instruments, including the General Recommendations adopted by the UN Committee on the Elimination of Discrimination Against Women. She relies in particular on paragraph 31 of General Recommendation No 35 (2017), which recommends the repeal of any legal provisions which criminalise women in prostitution.
The defendants’ case
The defendants point out that this ground was not advanced in pre-action correspondence, and submit that it raises an entirely abstract and hypothetical challenge which should not be entertained by this court. The claimants were not convicted under section 1 of SOA 1959 in its present form, and section 22(4) of the Human Rights Act 1998 (set out at paragraph 30 above) prevents them from now trying to apply the provisions of that Act retrospectively to convictions imposed long before it came into force. This ground therefore seeks a remedy which is not available to the claimants. Ms Gallafent relies on R (Rusbridger) v HM Attorney General [2003] UKHL 28 as authority that a declaration as to the legality of future conduct should only be granted in very exceptional circumstances.
Moreover, even if section 1 of SOA 1959 in its present form were to be declared incompatible with Article 8, that in itself would not mean that there could be no justification for retaining data about offences committed when the legislation was in a different form.
In any event, Ms Gallafent submits, it is for Parliament to determine what conduct should or should not constitute a criminal offence. That important principle was referred to in R v Jones [2006] UKHL 16: Lord Mance at paragraph 102 referred to the creation and regulation of crimes being, in a modern Parliamentary democracy, “a matter par excellence for Parliament to debate and legislate”; and at paragraph 29 Lord Bingham referred to –
“… what has become an important democratic principle in this country: that it is for those representing the people of the country in Parliament, not the executive and not the judges, to decide what conduct should be treated as lying so far outside the bounds of what is acceptable in our society as to attract criminal penalties. One would need very compelling reasons for departing from that principle”.
The offence of soliciting raises moral, ethical and practical issues, which should be considered by Parliament and not by the courts. Although the claimants suggest that the offence of soliciting is only a form of public nuisance, it must be remembered that prostitution can cause serious nuisance and considerable distress to those living in areas where street prostitution is prevalent. Having justifiably made such conduct an offence in 1959, Parliament has made amendments to section 1 of the Act on two occasions since the Human Rights Act 1998 came into effect but has retained the offence. Ms Gallafent acknowledges that there is a respectable body of opinion in favour of decriminalising prostitution, but submits that it is part of a policy debate which the courts should not seek to resolve. Although the claimants point to a number of influential reports, they are not able to cite any authority in support of their argument that prostitution offences breach Article 14 rights. Moreover, as has been considered above, the proposition that a gender-neutral offence is in breach of Article 14 rights because it is predominantly committed by women would have dramatic consequences for the many offences which are predominantly committed by men – including, for example, the summary offences of kerb-crawling and persistent soliciting of women. As Ms Gallafent succinctly puts it, it cannot be said that either the whole of the criminal law, or the criminal law relating to many specific offences, are unlawfully discriminatory against men. She submits that the international instruments relied on by the claimants provide at best only slight authority in support of their claim: see R (A & B) v Secretary of State for Health [2017] UKSC 41 (also a case in which the claimants relied on a CEDAW General Recommendation) per Lord Wilson at paras 34-35.
Conclusion as to Ground 7:
As with Ground 5, we can deal with this ground shortly. Once again, we can accept that it does seek to add something to other grounds. But what it adds is a very bold submission for which Ms Monaghan has shown no arguable basis. The various international instruments and reports on which she relies carry only limited weight, for the reasons explained earlier in this judgment, and the claimants’ case based on gender discrimination – on which the ground depends – has failed. Not all who commit offences of soliciting have been coerced or trafficked.
In any event, the authorities cited by Ms Gallafent make it entirely clear that it is for Parliament to determine the ambit of the criminal law. In our judgment, Ms Monaghan, in her brief submissions on this ground, has been quite unable to put forward any compelling reasons why this court should depart from that principle, let alone the “very compelling reasons” which Jones indicates must be established. Whatever the morality of selling sexual services, soliciting in public places is capable of giving rise to a public nuisance and can have significant adverse consequences for local residents. Section 1 of SOA 1959 is concerned with conduct of a kind which raises many issues for debate, and in our judgment it is not arguable that the debate should be resolved by the courts rather than by Parliament.
In any event, we see force in Ms Gallafent’s submission that this ground is hypothetical, since none of the claimants is now engaged in prostitution, and the lawfulness of the retention of data about their past soliciting offences has been considered under the earlier grounds.
Permission is therefore refused.
Overall conclusion:
In the result, the claim succeeds only on ground 1. As indicated at the hearing, we invite the parties to agree an order reflecting our judgment. If agreement is not possible, we will receive written submissions as to the appropriate form of order.