Police


Children - disclosure - enhanced criminal record certificates - disclosing non-criminal information - neglect - child protection register - criminal activity - criminal propensity

R (on the application of L) (appellant) v Commissioner of Police for the Metropolis (respondent) & Secretary of State for the Home Department (intervenor): CA (Civ Div) (Lords Justice Longmore, Moore-Bick, Lady Justice Smith): 1 March 2007

L appealed against the decision ([2006] EWHC 482 (Admin)) that the police were entitled to disclose for inclusion in an enhanced criminal record certificate information about conduct that, if proved, would not constitute a criminal offence, or reveal a risk that a criminal offence would be committed.



L's son had been placed on the child protection register under the category of neglect. His name had been removed from the register after he had been found guilty of robbery and had received a custodial sentence.



L had then been employed by an agency that provided staff to schools and had worked as a mid-day assistant at a secondary school, supervising children during the lunch-time break in the canteen and in the playground. Because of the nature of L's job, the agency had applied for an enhanced criminal record certificate in accordance with section 115 of the Police Act 1997. The certificate recorded that L had no criminal convictions, and that no information on her was recorded either on the list held under section 142 of the Education Act 2002, or on the list held under the Protection of Children Act 1999. However, under the heading 'Other relevant information disclosed at the chief police officer's discretion', it gave details about L's son.



L challenged the decision to disclose that information in the certificate, but the judge held that the legislation permitted the police to make the disclosure. L submitted that relevant information for the purpose of section 115(7) of the 1997 Act did not include information that, even if proved, would not constitute a criminal offence or reveal a risk that a criminal offence would be committed.



Held, as a matter of construction of section 115(7) of the 1997 Act, the fact that an application for an enhanced certificate had to be accompanied by a statement that the certificate was required for the purpose of an exempted question asked in the course of considering an applicant's suitability for a position caring for or supervising children, did not mean that the information could only relate to matters that only an exempted question could be expected to answer. That would be an unduly restrictive interpretation.



If information could only be provided for the purpose of answering a question about spent convictions, there would be no ability to provide information about possible criminal activity or propensity to commit crimes in the future. The statement required by section 115(2) of the 1997 Act was the trigger for the provision of the information in that the information could only be provided in circumstances where the application was accompanied by a statement that the certificate was required for the purpose of an exempted question. Once that trigger existed, the only restriction was that the chief officer of police had to think that the information might be relevant for the purpose for which the statement was made, and that the information ought to be included in the certificate.



There was nothing in the Green or White Papers preceding the 1997 Act, or in its long title, or in official guidance that controverted the view that relevant information was not confined to criminal activity or propensity. The provision was not ambiguous, and therefore Hansard could not be referred to.



Appeal dismissed.



Beverley Lang QC, Charlotte Kilroy (instructed by John Ford) for the appellant; Fiona Barton (the force solicitor) for the respondent; Rabinder Singh QC (instructed by the Treasury Solicitor) for the intervenor.





Landlord and Tenant



Business tenancies - service charges - entitlement to retained surplus

Brown's Operating System Services Ltd v Southwark Roman Catholic Diocesan Corporation: CA (Civ Div) (Lords Justice May, Longmore, Lady Justice Smith): 1 March 2007
A tenant (B) appealed against a decision upholding the claim of the respondent landlord S for unpaid service charges.



S's policy in relation to the service charge was to build a surplus to cover future expenditure by retaining the excess of the service charges paid by tenants over the amount actually spent. When the surplus reached a substantial sum, B considered that it should be entitled to a service charge 'holiday'. S refused, and B gave six months' notice to quit.



B refused to pay the last two quarters' service charge on the basis that the surplus held by the landlord more than covered those two quarters. S sued, and the judge held that the surplus was a reserve fund that had been built up for the benefit of the building, that S was entitled to retain it at the end of the lease, and that B had not been entitled to refuse to pay the service charge for the last two quarters of its occupancy.



B submitted that the definition of the 'total service cost' in the lease was such that it did not cover the making of any provision for future costs; that what S had done did not amount to the exercise of a discretion to include a provision for likely future repairs in the service charge; and that the accumulated surplus was an asset of the tenants.



Held, although the 'total service cost' was defined as the costs paid, discharged or incurred, in the past tense, the terms of the lease did allow S to include in the total service cost a sum as reasonable provision for expenditure likely to be incurred. However, that provision could only extend to expenditure likely to be incurred during the currency of the lease.



The lease did not provide for the creation of a reserve fund. The money held by S on the termination of B's lease was either held in reserve under the lease, in the sense of being provision for future expenditure within the total service cost, or was the excess of B's payments on account over actual expenditure, which S was entitled to retain only on account of future service rent payable by B.



Under the lease, that money was to be applied to meet any authorised expenditure in each succeeding year, and only when that money was exhausted could S make a further demand on B. From that it was to be inferred that any money unspent at the end of the lease belonged to the tenants. That was the view of the accountant who prepared the service charge statements, although his view was not decisive. There was no provision in the lease dealing with what should happen to any unspent money still held by S at the expiry of the lease.



The lease did not create a fund designed to cover the obligations that S would have to meet at some future time, possibly after the currency of the lease. Its terms obliged S to return to B any unspent money at the date of termination, whether termination was by effluxion of time or the operation of a break clause, Secretary of State for the Environment v Possfund (North West) Ltd [1997] 2 EGLR 56 distinguished.



Appeal allowed.



Company representative for the appellant; Edward Peters (instructed by IBB Solicitors) for the respondent.





Extradition



Certificates - EC law - European arrest warrants - extradition offences - statutory interpretation - surrender - terrorism

Moutez Almallah Dabas v Spain: HL (Lords Bingham of Cornhill, Hope of Craighead, Scott of Foscote, Brown of Eaton-under-Heywood, Mance): 28 February 2007
D appealed against a decision ([2006] EWHC 971 (Admin), [2007] 1 WLR 145) upholding an order for his extradition to the respondent state.



The High Court of Justice of Madrid had issued a European arrest warrant for D's extradition to await his trial for the offence of collaboration with an Islamist terrorist organisation. The warrant was in the form provided for by the Council Framework Decision on the European arrest warrant and the surrender procedures between member states, and had been signed by a judge of the court.



D argued that the warrant did not comply with section 64(2) of the Extradition Act 2003 because it was not accompanied by a certificate of the kind referred to in sections 64(2)(b) and (c). The 'certificate' could not be the warrant itself - a separate document must be produced in the form of a certificate showing the matters referred to in sections 64(2)(b) and (c); the conduct alleged against him did not satisfy the dual criminality requirements of section 64(3) because part of it occurred when such conduct did not constitute an offence under UK law; and the warrant did not satisfy section 64(3) because it did not set out or otherwise make available the relevant test of law showing that the conduct constituted an offence under Spanish law.



Held (Lord Scott of Foscote dissenting in part), the framework decision sought to remove the complexity and potential for delay that was inherent in the existing extradition procedures. It introduced a much simpler system of surrender between judicial authorities, based on the mutual recognition of criminal decisions between member states.



Part 1 of the 2003 Act, which dealt with extradition to 'category 1' territories, was enacted to give effect to the framework decision. The statutory language indicated that the word 'certificate' in sections 64(2)(b) and (c) had been used deliberately by Parliament to ensure the accuracy of the statements referred to in those provisions. Thus, the requirement for a certificate could not be dismissed as unimportant.



The requirement for a 'certificate' clearly added something to the requirements that a part 1 warrant must satisfy. However, it did not follow that there must be a separate document. The framework decision had to be interpreted in conformity with community law.



The imposition of additional formalities not to be found in the framework decision itself would tend to frustrate its objectives. It had to be assumed that Parliament did not intend the provisions of part 1 to be inconsistent with the framework decision, or to provide for a lesser degree of co-operation by the UK than was required. There was nothing in the wording of section 64(2), read as a whole and in the light of the other provisions of part 1, to indicate that Parliament intended that a warrant which clearly set out all the relevant information had to be accompanied by a separate document certifying the matters referred to in sections 64(2)(b) and (c) (Criminal Proceedings against Pupino (C105/03) [2006] QB 83 applied and Advocaten voor de Wereld VZW v Leden van de Ministerraad (C303/05) (unreported, 12 September 2006) considered).



Obiter, although the opening note in the warrant stated that the offence in UK law was conspiracy to support terrorism, and the period of the conspiracy was 'between a date unknown before the year 2000 and the 12th day of March 2004', it was not obvious from the narrative of the circumstances set out in the warrant that the date when the conspiracy was alleged to have begun was as early as 'before the year 2000'. Throughout the period of the conduct that was said to constitute the offence, the requirement of double criminality was satisfied. If a judge concluded that the requirement of double criminality had not been satisfied because part of the conduct which was said to constitute the offence mentioned in the warrant occurred before it constituted an offence under the law of the UK, it would be open to him to ask that the scope of the warrant be limited to a period that would enable the test of double criminality to be satisfied.



Obiter, a judge need not concern himself with the criminal law of the requesting state when he is asked to decide whether the offence specified in the warrant is an extradition offence (Brussels v Armas [2005] UKHL 67, [2006] 2 AC 1 applied). Section 2(4)(c) of the Act did not require the text of the foreign law to be set out in the warrant. None of the conditions in section 64(3) required an analysis of the foreign law for the judge to decide under section 10(2) whether they were satisfied.



Per Lord Scott of Foscote, section 64(2) could not be read down so as to allow the warrant itself without any express certification to constitute the section 64 certificate. The requirement for a certificate was a requirement additional to those expressly required by the framework decision, but it was not in the least inconsistent with the principle of mutual recognition that informed the framework decision. It was not for the judiciary to remove from the Act provision that Parliament thought it right to include.



Appeal dismissed.



Clare Montgomery QC, Mark Summers (instructed by Ahmed & Co) for the appellant; David Perry QC, John Hardy (instructed by the Crown Prosecution Service) for the respondent.