C v Chief Constable of Greater Manchester and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson,Lord Justice Wilson |
| Judgment Date | 19 January 2011 |
| Neutral Citation | [2011] EWCA Civ 175 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2010/1545 & 1545(C) |
| Date | 19 January 2011 |
[2011] EWCA Civ 175
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MANCHESTER DISTRICT REGISTRY
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
Mr Justice Langstaff
Before: Master of the Rolls
Lord Justice Wilson
and
Lord Justice Toulson
Case No: C1/2010/1545 & 1545(C)
Ms Anne Studd (instructed by Chief Constable of Greater Manchester Police) appeared on behalf of the Appellant.
Mr Anthony Hayden QC & Ms Abigail Hudson (instructed by Messrs Carter Moore) appeared on behalf of the Respondents.
Lord Justice Toulson:
The Chief Constable of Greater Manchester Police appeals against a judgment and order made by Langstaff J on 24 May 2010 on an application by the respondent, C, for judicial review of the decision of the Chief Constable to disclose details of a sexual allegation made against C, pursuant to the statutory provisions concerning the issue of Enhanced Criminal Record Certificates ("ECRCs"). The judge held that the decision was unlawful both on grounds of procedural deficiencies and because it was, in his judgment, obvious that a decision to release the information contravened C's rights under Article 8 of the European Convention. He therefore quashed the decision. He also made this declaration:
"Upon any application for an enhanced criminal records certificate for the position of instructor, lecturer or teacher of children over the age of 16 in an educational setting it would be unlawful for the first and second defendant to disclose the information set out in the confidential schedule annexed hereto. Such disclosure is disproportionate to the level of risk disclosed by the information."
And he granted the following injunction:
"The first and second defendant are prohibited from disclosing the information set out in the confidential schedule annexed hereto in response to any application for a criminal record certificate and/or enhanced criminal record certificate in relation to a position as an instructor, lecturer or teacher of children over the age of 16 in an education setting after the date of this order."
The statutory scheme concerning the issue of various forms of criminal record certificate is quite complex and has been considered by the courts on a number of occasions. For present purposes the relevant part of the scheme can be summarised shortly.
Under Part V of the Police Act 1997, as amended by the Serious Organised Crime Act 2005 and the Safeguard of the Environmental Groups Act 2006, a person who is seeking employment in a job which would involve training persons under the age of 18, or a prospective employer, can request the Secretary of State to issue an ECRC. Before issuing such a certificate, Section 113B4 requires the Secretary of State to ask the Chief Officer of Police for every relevant police force to provide any information which, in the Chief Officer's opinion, might be relevant for the purpose for which the certificate is required, ie for considering the prospective employee's suitability, and, in the Chief Officer's opinion, ought to be included.
In deciding whether information ought to be included, for example about allegations of criminal conduct made to the police which have not led to criminal proceedings, there is obviously a balance to be struck between the need for protection of young people and the interests of the person concerned, who may be entirely innocent of any wrongdoing. The person concerned has rights under Article 8, but Article 8(2) qualifies those rights by permitting acts which are in accordance with the law and necessary in a democratic society for, among other things, the prevention of crime or for the protection of the rights and freedoms of others.
At the time of the making of the decision which is the subject of these proceedings, the leading authority on how the balance should be struck was the decision of the Court of Appeal in R (X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65. The guidance given in that decision was disapproved by the Supreme Court in R (L) v the Commissioner of Police of the Metropolis [2009] UKSC 3, [2010] 1 AC 410.
The Secretary of State's functions in relation to criminal records certificates are performed by the Criminal Records Bureau ("CRB"). C wished to obtain employment as a welding lecturer at a further education college. For this purpose he was required to undergo a CRB enhanced disclosure check. In response to the CRB's request to Chief Constables for information, the Chief Constable provided details of an allegation made in 2006 of historic sex abuse. The information was consequently included in the CRB disclosure. The information set out details of the allegation and concluded:
"The full circumstances were reviewed by the Crown Prosecution Service who concluded that, whilst there was no reason to disbelieve the female's account, there was insufficient evidence to provide a realistic prospect of conviction. No further police action was taken in this instance."
The result of that disclosure was to make impossible C's attempt to obtain employment as a welding lecturer. In his application for judicial review, C challenged the lawfulness of the decision on various grounds. The main grounds were that there was procedural impropriety, among other respects, in that C was not given an opportunity to make representations prior to the decision being taken to make such disclosure, the effect of which would be to destroy his employment prospects in his chosen field; and that the decision was in breach of his Article 8 rights, because it was disproportionate.
The appellant accepts that there was procedural irregularity in the sense that the decision was taken applying what was then the guidance given to Chief Constables by the courts, whereas the correct guidance which we now know ought to have been applied was that laid down by the Supreme Court in L. However, the Chief Constable submits that this procedural irregularity has caused no injustice in this case and that the decision would inevitably, and rightly, have been the same, even applying the guidance in L. The appellant does not accept that C ought to have been given an opportunity to make representations because, in the Chief Constable's submission, the case was a clear one. The question when an opportunity for making representations should be given was considered in L. Lord Hope said, at paragraph 46:
"…in cases of doubt, especially where it was unclear whether the position for which the applicant was applying requires disclosure of sensitive information, where there was doubt that the sensitive information could be substantiated or where there was doubt whether the information was still true, the Chief Police Officer should offer the applicant an opportunity of making representations before the information was released.
In R (X) v Chief Constable of the West Midlands Police at para 37 Lord Woolf, CJ, rejected Wall J's suggestion that this should be done on the ground that this would impose too heavy an obligation on the Chief Constable. Here too I think, with respect, that he got the balance wrong, but it will not be necessary for this procedure to be undertaken in every case; it should only be resorted to where there is room for doubt as to whether there should be disclosure of information that is considered to be relevant. The risks in such cases of causing disproportionate harm to the applicant outweigh the inconvenience to the Chief Constable."
To similar effect, Lord Neuberger said, at paragraph 82:
"In a nutshell, as Lord Hope has said, the issue is essentially one of proportionality. In some, indeed possibly many, cases where the chief officer is minded to include material in an ECRC on the basis that he inclines to the view that it satisfies section 115(7)(b), he would, in my view, be obliged to contact the applicant to seek her views, and take what she says into account, before reaching a final conclusion. Otherwise, in such cases, the applicant's article 8 rights will not have been properly protected. Again, it is impossible to be prescriptive as to when that would be required. However, I would have thought that, where the chief officer is not satisfied that the applicant has had a fair opportunity to answer any allegation involved in the material concerned, where he is doubtful as to its potential relevance to the post for which the applicant has applied, or where the information is historical or vague, it would often, indeed perhaps normally, be wrong to include it in an ECRC without first giving the applicant an opportunity to say why it should not be included."
In the present case the judge was unimpressed by the evidence adduced by the Chief Constable in the form of a witness statement by a police inspector as to the reasons for making the decision. He did not consider that a proper balancing exercise had been conducted. He noted that on the face of the evidence there did not appear to...
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