Practice and Procedure

R (On the application of ELLIS) v THE CHIEF CONSTABLE OF ESSEX POLICE (2003)

PUBLISHED June 16, 2003

In terms of the right to respect for private and family life under Art.8 European Convention on Human Rights, the legality of an "offender naming scheme" operated by police could not be determined in principle and would depend on how the scheme was operated in practice in relation to each particular offender.Application concerning the lawfulness of an "offender naming scheme" operated by the defendant ('Essex police'). The scheme was introduced with a view to reducing burglary and car crime in the Brentwood area, and was implemented in an attempt by Essex police to perform its duties under the Crime and Disorder Act 1998 to implement strategies for reducing crime. It involved displaying posters at some 40 sites showing the name and face of a selected offender, the nature of his offence and the sentence he was serving. Essex police's protocol governing the scheme required that only offenders serving at least 12 months in prison would be selected for inclusion in the scheme and that the offender and his legal representative were to be given written notice on the day of sentencing and given seven days in which to register an objection. The selection would then require approval from a senior officer after a risk assessment carried out in consultation with the probation service and social services. The probation service had expressed reservations about the Brentwood scheme, the local authority had expressly disapproved of it, and NACRO had stated that it would interfere with the rehabilitation of offenders and would be ineffective in reducing the reoffending rate. The claimant ('E') was selected by Essex Police to be the first offender used in the scheme. The probation service concluded that to use E would, on his release from prison, increase his risk of homelessness, drug misuse, re-offending and non-compliance on licence, and was likely to increase the risk of harm to the public. They also concluded that there was a risk of harm to E's parents, ex-partner and young daughter who all lived in the locality. Essex police took the view that there would be no such adverse consequences of including E in the scheme, as his conduct on release was unlikely to be affected, his crimes had already been reported in the press, his ex-partner and daughter had changed their names, and E had indicated that he intended to move away from Essex. However, Essex police subsequently decided to withdraw E from the scheme and the court was left to rule on the lawfulness of the scheme in principle rather than E's case in particular. It was not disputed that the scheme involved an interference with private and family life contrary to Art.8(1) European Convention on Human Rights but Essex police argued that any interference was justified under Art.8(2) as being necessary in the interests of the prevention or detection of crime or the protection of the rights and freedoms of others.HELD: (1) There was a general presumption that information should not be disclosed by the police, in view of the potentially serious effect on the ability of convicted people to live normal lives and the risk of violence towards such people, but there was a public interest in favour of disclosure where necessary for the prevention or detection of crime or the protection of vulnerable people, and each case must be considered on its particular facts. There should only be disclosure where there was a pressing need, and the police must first obtain as much information as reasonably practicable, including from other agencies. It was a principle of law that the police were not entitled to punish and that they should not seek to do so by "naming and shaming" offenders. It was also a principle of law that a convicted person retained all his rights that were not expressly taken away by law. Hellewell v Chief Constable of Derbyshire (1995) 1 WLR 804 and R v Chief Constable of North Wales Police & Ors, ex parte Thorpe & Anor (1999) QB 396 applied. (2) Had it been necessary to rule on E's individual case, the court would have done so in E's favour. There was concern as to Essex police's superficial reaction to the risk factors identified by the probation service. Damage could have been done to E's family and child despite their change of name, and they also had rights under Art.8. It was particularly important to safeguard the rights of E's child and there was a real question as to whether it could ever be appropriate to nominate the father of a young child for inclusion in the scheme. The scheme also involved a degree of unfairness in that it discriminated between those offenders who were included and those who were not, and the former would see inclusion as a form of additional punishment. (3) However, it was not desirable in this case to rule that the scheme in principle was either lawful or unlawful, because its legality depended on the particular circumstances of each offender included in it and how the scheme was operated in practice. Accordingly, the court would not grant a declaration that the scheme was incapable of being operated lawfully. Notwithstanding this, there was at least a doubt whether the possible benefits of the scheme were proportionate to the intrusion into an offender's Art.8 rights, and the police would have to undertake considerable care in the investigation of a selected offender's circumstances, and in the operation of the scheme, if it were to be lawful. Until that happened, however, the legality of the scheme remained uncertain.No order.

[2003] EWHC 1321 (Admin)