CR2-09-10-29-Judgements_IMX30_1.mxf

Session: judgment
Session date: 2009 Oct 29

CASE ID: UKSC 2009/0104
Case name: R (on the application of L) (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent)
Case summary:
Judgment: The Supreme Court holds that, when determining whether to disclose non-criminal related information retained in police records in connection with an application to work with vulnerable persons, the police must give due weight to the applicant’s right to respect for her private life. However, the facts narrated were true, the allegation was directly relevant to her employment and the school was entitled to be apprised of the information. Therefore, while the consequences for the appellant’s private life are regrettable, disclosure could not in this case be said to be disproportionate to the public interest in protecting vulnerable people [para [48], [49], [58] and [86]]. The appeal must be dismissed.
Reasons for the judgment: Article 8 was applicable, as: (i) the dismissal affected L’s ability to interact with others and damaged her reputation [para [24]]; (ii) public information can implicate Article 8 when it is collected/stored by the public authorities [para [26]]; and (iii) the relevant information related to private proceedings [para [28]]. All ECRC disclosure decisions are likely to engage Article 8, as: (i) the information has been collected/stored in police records; and (ii) disclosure of relevant information is likely to diminish the subject’s employment prospects. The proportionality of the proposed disclosure must be considered in each case [paras [29], [41] and [70]. The police must apply a two-stage analysis, so as to consider whether: (i) the information is reliable and relevant; and (ii) in light of the public interest and the likely impact on the applicant, it is proportionate to provide the information [paras [40] and [79]]. Those who apply for positions that require an ECRC cannot be regarded as consenting to their privacy rights being violated. Consent is predicated on the basis that the right to respect for private life will be respected [para [43]]. Otherwise, legislation could easily circumvent HRA rights by effectively curtailing access to benefits unless people ‘consent’ to invasions of their rights [para [73]]. The police’s historic approach towards balancing the public interest in protecting vulnerable persons and respecting Article 8 rights was flawed, as they applied a general presumption that in cases of conflict the public interest should generally prevail [para [44]]. Article 8 requires that neither consideration be afforded precedence over the other – each interest should be given careful consideration in assessing the proportionality of the proposed disclosure [paras [45], [63] and [85]]. Factors to be considered in assessing proportionality include: (i) the gravity of the relevant information; (ii) its reliability; (iii) its relevance; (iv) the existence of an opportunity to make representations; (v) the period that has elapsed since the relevant events; and (vi) the adverse effect of the disclosure [para [81]]. If disclosure may be: (i) irrelevant; (ii) unreliable; or (iii) out-of-date, the applicant should be given the opportunity to make representations prior to the decision to disclose [paras [46], [63] and [82]]. Lord Scott agreed in the result but differed in reasoning, stating that: (i) a presumption prioritising the public interest did not breach Article 8; and (ii) the consent of the applicant negated any claimed violation [paras [58] and [59].

CASE ID: UKSC 2009/0143
Case name: In re Sigma Finance Corporation (in administrative receivership) and In re the Insolvency Act 1986 (First Appeal)
Case summary:
Judgment: The Supreme Court by a majority of four to one allowed the appeal by other creditors whose debts fell due after the realisation period. The principal judgment was delivered by Lord Mance, with whom Lords Hope, Scott and Collins agreed. Lord Walker dissented for the reasons outlined below).
Reasons for the judgment: The principles of contractual construction to be applied were well-established and required consideration of the basic scheme of the STD. Clause 7.6 appeared in the STD in the context of an assumption that Sigma would retain sufficient assets to cover its secured creditors. It was not intended to deal with a situation requiring the application of priorities between creditors. It was improbable that clause 7.6 could be read as extracting from the short term pool debts which fell due during the 60 day realisation period so as to give priority over other creditors. (Paras[9]-[10], [12], [13]-[17]) It was also improbable that the parties would have contemplated priorities being conferred by the fortuitous timing of debts falling due during the realisation period. Clause 7.6 was an ancillary provision which did not override the trustee’s absolute discretion as to the manner in which assets were to be realised. No provision would have been made for the fees of the trustee if the Court of Appeal were correct. The reasonable person’s understanding of clause 7.6 was aided by a clear basic scheme that debts arising during the realisation period were to be part of the short term pool of creditors with the assets to be distributed equitably amongst all the creditors at the discretion of the trustee. (Paras[21]-[22], [25], [32]-[33]) Lord Collins added that textual analysis of the type used to interpret tax legislation was not appropriate to a commercial contract. Detailed semantic analysis must give way to common sense. (Paras[35]-[38]) Lord Walker dissented. He found that on closer examination the case involved no issue of general public importance. The legal principles were not disputed and the Court should avoid making new contracts for experienced commercial parties. (Paras[42]-[46]).