Higher Education – Disclosure of Spent Convictions

Higher Education – Disclosure of Spent Convictions - The case of HA v University of Wolverhampton [2018] EWHC 144 (Admin) was heard on 12 February 2018

Background

 

When the claimant was 14 years of age, the claimant committed robbery and assault. At 15 years of age, the claimant was convicted of robbery and assault occasioning actual bodily harm. The University of Wolverhampton (the “defendant”) excluded the claimant from the Master of Pharmacy course (“MPharm”) because the claimant had such convictions. The claimant sought judicial review. The application for judicial review was allowed.

 

Case

 

The question was whether the defendant had the right to impose an obligation on the claimant (i) to disclose the claimants spent convictions; and (ii) to obtain an enhanced criminal record certificate (“ECRC”).

 

The General Pharmaceutical Council (GPhC) is the independent regulator for pharmacists, pharmacy technicians and pharmacy premises in Great Britain.

 

“It is our job to protect, promote and maintain the health, safety and wellbeing of members of the public by upholding standards and public trust in pharmacy.

 

Our principal functions include:

• approving qualifications for pharmacists and pharmacy technicians and accrediting education and training providers;
• maintaining a register of pharmacists, pharmacy technicians and pharmacy premises;
• setting standards for conduct, ethics, proficiency, education and training, and continuing professional development (CPD);
• establishing and promoting standards for the safe and effective practice of pharmacy at registered pharmacies;
• establishing fitness to practise requirements, monitoring pharmacy professionals' fitness to practise and dealing fairly and proportionately with complaints and concerns.” is the independent regulator for pharmacists, pharmacy technicians and pharmacy premises in Great Britain.
• It is our job to protect, promote and maintain the health, safety and wellbeing of members of the public by upholding standards and public trust in pharmacy.
• Our principal functions include:
• approving qualifications for pharmacists and pharmacy technicians and accrediting education and training providers;
• maintaining a register of pharmacists, pharmacy technicians and pharmacy premises;
• setting standards for conduct, ethics, proficiency, education and training, and continuing professional development (CPD);
• establishing and promoting standards for the safe and effective practice of pharmacy at registered pharmacies;
• establishing fitness to practise requirements, monitoring pharmacy professionals' fitness to practise and dealing fairly and proportionately with complaints and concerns.”

https://www.pharmacyregulation.org/

 

Whether the defendant had the right to impose an obligation on the claimant to obtain an ECRC?

 

The GPhC set entry requirements for the MPharm, including the criminal checks that were required to gain access to the MPharm. Article 42(1)(b)(ii) of the Pharmacy Order 2010, SI 2010/231 (the “2010 Order”) grants the power to check students' criminal records as patients’ safety is paramount.

 

The GPhC only accredits universities which meet the requirements by proving that they have effective robust systems in place for the selection of students.

 

Universities are obliged to undertake their selection process in line with their systems and processes in order to fulfil the criteria for accreditation: to select students whose (i) names should be entered on the register; (ii) whether their characters were suitable to be enrolled on the MPharm; and (iii) whether they were fit to become pharmacists i.e. those most likely to successfully enter the pharmacy profession. The assessment included checks of the students’ criminal records in terms of the “requirements as to fitness to practice unimpaired by health” in Article 42(1)(b)(ii) of the 2010 Order.

 

The GPhC‘s powers allowed the GPhC to request the claimant to disclose the claimant’s spent convictions.

 

The courts stated that “It would not be accepted that the only body that was authorised to ask a question under art 3(1) of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, SI 1975/1023 (the 1975 Order), was the council or that there was any question of delegation. It was true that, as a condition of registration, the council might ask, in effect, the same question. However, that was focussed on a different time, namely, when a person was seeking entry to the register. That power did not exclude by necessary implication the university's power to ask the same question of someone seeking entry to the course at a much earlier point in time in fulfilment by it of the standards and requirements which the council had set as a condition of accreditation pursuant to its powers in the 2010 Order (see [112] of the judgment). Therefore, subject to the discrete point on the wording of the question, the question asked of the claimant had fallen within art 3(1)(a)(i) and (ii) of the 1975 Order. It was plain that student pharmacists had access to patients and, therefore, they performed regulated activities. The fact that they were doing so as trainees, under the supervision of an instructor, did not mean that what they were doing was not a regulated activity, because of the words 'under the direction or supervision of' a health care professional in the relevant statutory provisions (see [113] of the judgment).”

 

It was held that the defendant was entitled to ask the claimant to obtain an ECRC.

 

It was ruled that “…its purpose had been a prescribed purpose, namely, work with children and vulnerable adults“. R (on the application of Ngole) v University Of Sheffield (Health and Care Professions Council intervening) [2017] All ER (D) 159 (Oct) applied.

 

Whether the question asked of the claimant on the application form had been invalid for failure to refer specifically to the 1975 Order?

 

In Article art 3(1) of the 1975 Order, the caveat states that

 

“where the person questioned is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed', was not to be read as requiring the person to be informed that spent convictions were required specifically by virtue of the 1975 Order. It was to be read as just requiring the person to be told that the law required them to disclose unfiltered spent convictions. The caveat was there to ensure that there was no scope for misunderstanding “.

 

“by virtue of this Order” in the caveat means that the person simply had to be informed that it was a legal requirement to disclose spent convictions in response to the question asked. The form included an accurate statement of the legal effect of the 1975 Order, and the form and the question the claimant had been asked had complied with Article 3(1). Lincolnshire County Council v RJ (X intervening) [1998] 2 FLR 82 was considered.

 

Whether the requirement for the claimant to disclose the claimant’s spent convictions and obtain an ECRC had infringed the claimant’s rights under Article 8 of the European Convention on Human Rights?

 

It was held that

• “assuming, without deciding that the university was a public authority for the purposes of the Human Rights Act 1998, the claimant's spent convictions formed part of his private life and, therefore, it had been an interference with his right to respect for his private life, under art 8(1), to require him to disclose them and to obtain an ECRC”.
• “The reason disclosure had been sought had been for the purposes of public safety, and the protection of the rights and freedoms of others, and it had, therefore, been for one of the specified purposes in art 8(1)”.
• “Disclosure of the claimant's convictions had been in accordance with the law and could not be said to have been arbitrary. His convictions had fallen to be disclosed, not filtered, because the relevant conditions had been satisfied in relation to them. The cumulative filtering process that had applied in relation to the claimant's convictions could not be said to have produced an arbitrary result that was not in accordance with the law “.
• “There was plainly a rational connection between the disclosure of the claimant's particular convictions and the purpose for which the disclosure had been sought” .
• “The requirement that the claimant disclose recent unfiltered convictions which had been for offences of dishonesty and violence had gone no further than had been necessary to accomplish that objective. The requirement for disclosure had struck a fair balance between the claimant's rights and the community interests “.
• “Accordingly, although the requirement that the claimant disclose his spent convictions had been an interference with his right to private life under art 8(1), that interference had been for one of the specified purposes in art 8(2), it had been in accordance with law and it had been necessary in a democratic society”.

 

R (on the application of L) v Metropolitan Police Comr [2010] 1 All ER 113 applied; R (on the application of T) v Secretary of State for the Home Department [2014] 4 All ER 159 applied; R (on the application of P) v Secretary of State for the Home Department [2017] All ER (D) 52 (May) applied; R (on the application of R) v National Police Chief's Council and another [2017] All ER (D) 101 (Oct) were applied.

 

Whether the decision to exclude the claimant from the course had been in accordance with the law and a disproportionate interference with his rights under art 8(1) or otherwise unlawful?

 

It was held that:

• “The decision to remove the claimant from the course had resulted in an interference with his rights under art 8(1) because it had had the effect of preventing him from pursuing his chosen career. However, his argument that, because the university had not expressly had regard to art 8 during its decision-making process, its decision was unlawful for that reason, would be rejected “.
• “For the same reasons as identified in relation to disclosure, the decision to remove the claimant from the course had been because the university had concluded that his fitness to practice had been impaired. In other words, the reason for having removed him had been to protect patient safety, which fell within one of the specified purposes in art 8(2)”
• “However, there were a number of flaws in the university's reasons which meant that its determination that the claimant should be excluded from the course could not stand.
  • First, there was little or no hint in the reasons that mitigating circumstances had been taken into account. The university's failure to consider the quite considerable mitigation which had existed had been a fundamental failure which vitiated its decision. In effect, it had completely ignored the claimant's submission to it. Accordingly, in Wednesbury terms, it had ignored a highly relevant matter when having reached its decisions. Applying a proportionality analysis, the university had failed to strike a fair balance between the protection of the public and the claimant's rights. Whichever prism the university's reasoning was viewed through, the result was the same. Its decision was unlawful”.
  • “Second, the university had erred by not having considered sanctions in the ascending order of seriousness”.
  • “Third, it had not been properly open to it to conclude that the claimant had failed on more than one occasion to disclose his convictions. That irrational finding of fact by the university had plainly impacted on its determination that the claimant should be excluded from the course. It was clear that it had been concerned, not just with the fact of the claimant's convictions, but had been equally concerned about his failure to declare them”.

 

It was ruled that “the university's decision to exclude the claimant from the course would be quashed”. R (on the application of SB) v Governors of Denbigh High School [2007] 1 AC 100 applied; R (on the application of Lord Carlile of Berriew QC) v Secretary of State for the Home Department [2015] 2 All ER 453 considered.

 

Conclusion

 

The defendant university was entitled to require the claimant to disclose the claimant’s spent convictions and to obtain an ECRC when applying for the MPharm, and although the requirement interfered with his right to private life, it had been in accordance with law and necessary in a democratic society.

 

The Court quashed the defendant's decision to exclude the claimant from the MPharm, given a number of flaws in the defendant's reasoning and therefore the defendant’s decision could not stand. 

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