Ellis v The Chief Constable of Essex Police [2003] EWHC 1321 (Admin)

Human rights – crime and disorder – privacy

This was a challenge to the lawfulness of an “offender naming scheme” operated by Essex police. The scheme involved displaying posters of an offender, the nature of his offence and the sentence he was serving.  The scheme was part of Essex police’s strategy to reduce crime, in compliance with its duties under the Crime and Disorder Act 1998, by targeting and deterring potential offenders.

The protocol prepared in support of the scheme required that only offenders serving a minimum of 12 months in prison would be selected for inclusion. 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 require approval from a senior officer after a risk assessment carried out in consultation with the probation services and social services. The local authority, probation service and NACRO had all expressed strong reservations about the scheme.

E was the first offender selected to be 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 and re-offending, and was likely to increase the risk of harm to the public. They also concluded that there was a risk to E’s parents, ex-partner and young daughter who all lived in the locality. Essex police disagreed with the assessment on the basis that E’s 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.

Essex police did however subsequently decide to withdraw E from the scheme and the question for the court was whether the scheme itself was lawful in principle. All parties agreed that the scheme was an interference with the right to respect for private and family life contrary to art 8 of the Convention. Essex police argued that that 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.

The judge reiterated the general presumption that information should not be disclosed by the police unless there was a public interest in favour of disclosure where necessary for the prevention or detection of crime or the protection of vulnerable people.  Each case was to be decided on its facts and there should only be disclosure where there was a pressing need.

Had it been necessary to rule on E’s individual case, the court would have found in E’s favour as there was concern at Essex police’s superficial reaction to the factors identified by the probation service.  Damage could have been done to E’s family and – in particular – to E’s daughter, despite their change of name.  They also had rights under art 8.  The judge questioned whether it could ever be appropriate to nominate the father of a young child for inclusion in the scheme.

As to the lawfulness of the scheme, the judge noted that it contained a degree of unfairness in that it discriminated between those offenders who were included and those who were not. However, it was not desirable in this case to rule that the scheme was either lawful or unlawful, as its legality would depend on the circumstances of the offenders solicited for the scheme and how it operated in practice.  There had to be a more structured assessment of the risks involved, backed by more information and appropriate professional advice than was available in relation to E (eg advice as to the scheme’s merits and its operation from the Home Office).  That information would be needed before it could be assessed whether the possible benefits of the scheme were proportionate to the intrusion into an offender’s art 8 rights. The judge was therefore not prepared to grant a declaration that the scheme was not capable of being operated lawfully during a trial period.

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