Desmond v The Chief Constable of Nottinghamshire Police

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgePresident of the Queen's Bench Division
Judgment Date12 January 2011
Neutral Citation[2011] EWCA Civ 3
Docket NumberCase No: B3/2010/0081
Date12 January 2011

[2011] EWCA Civ 3

[2009] EWHC 2362 (QB)

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

The Hon Mr Justice Wyn Williams

Before: President of the Queen's Bench Division

Lord Justice Leveson

and

Lord Justice Toulson

Case No: B3/2010/0081

Between
Desmond
Appellant
and
The Chief Constable of Nottinghamshire Police
Respondent

Mr Vincent Paul Desmond in Person

Mr A Payne (instructed by Malcolm Turner (Force Solicitor)) for the Respondent

Hearing dates : 7 TH and 8 TH December 2010

President of the Queen's Bench Division

President of the Queen's Bench Division:

Enhanced Criminal Record Certificates

1

This is the judgment of the Court.

2

Part V of the Police Act 1997 is concerned with Certificates of Criminal Records. One main purpose of such certificates is to provide a measure of protection for children and young people under the age of 18. There have been alterations and amendments to this Part of the 1997 Act by the Serious Organised Crime and Police Act 2005, but these proceedings are concerned with the statutory provisions in their unamended form, and we shall refer to them as such.

3

Section 115 of the 1997 Act provided for Enhanced Criminal Record Certificates, and obliged the Secretary of State to issue an ECRC to any individual who applied in the prescribed form and manner and paid a prescribed fee. The certificate had to be required for one of a number of specified purposes, including when there was consideration of the applicant's suitability for a position which involved regularly caring for, training, supervising or being in sole charge of persons aged under 18. Thus typically and in the present case, a person applying to be a school teacher would need to apply for an ECRC.

4

The functions of the Secretary of State under this legislation are undertaken by the Criminal Records Bureau, who, upon receiving an application, search national computer records and other lists for records of convictions and the like and for information on a number of lists held under statutes relating to education and the protection of children and vulnerable adults. These are finite factual matters. Section 115(7) of the 1997 Act also provided that, before issuing an ECRC, the Secretary of State had to request the chief officer of every relevant police force (as defined by regulations) to provide any information which, in the chief officer's opinion might be "relevant" for the purpose for which the certificate was required and which "ought to be included in the certificate". By section 119(2) the chief officer was obliged to comply with the request "as soon as practicable". Responding to this request may not be a finite factual matter, but could, and very often would, require an exercise of judgment by the chief officer. Thus, an applicant may historically have been prosecuted for an alleged sexual offence, but acquitted; or, as in the present case, the applicant may have been arrested on suspicion of an alleged sexual offence, but never charged or otherwise proceeded against. The statutory question for the judgment of the chief officer would then be whether the matter was relevant for the purpose of an application for a certificate for consideration by a person deciding whether to offer the applicant a school teaching position, and whether it ought to be included in the ECRC. For the purpose of that judgment, the chief officer would, for instance, need to know how and why the applicant was acquitted, or how and why he was never charged. In the latter case, there could obviously be a spectrum of possibility. On the one hand, the evidence may have been on the face of it strong, but the complainant adamantly refused to proceed; on the other, police investigations may have established positively that the applicant had not committed the offence on suspicion of which he was arrested. In the first instance, the chief officer might judge the information to be relevant and that it ought to be included in the certificate. Although the applicant is legally innocent of the alleged offence, the protective policy of the Act could require discretionary disclosure. In the second instance, it is to be supposed that the chief officer would decide against inclusion on both statutory grounds. Indeed, it would appear to be unfair to include such information where it had been positively established that the applicant had not committed the offence, since the mere inclusion of wholly exculpatory material would tend to prejudice the applicant's prospects of obtaining the teaching post. It is a sensitive judgment for the chief officer to make, which plainly needs to be made upon full and proper information.

5

Guidance on these matters is to be found in Home Office Circular 5/2005: Criminal Records Bureau: Local Checks by Police Forces for the Purpose of Enhanced Disclosure, in particular paragraphs 32 to 34, where examples are given. Paragraph 10 of this document emphasises that the key purpose of disclosure is to consider the risk or likelihood of an offence being committed against the vulnerable; and that the mere fact that a person has behaved badly, or is believed to have done so, is not relevant. Paragraph 15 advises that the implications of disclosure – balancing human rights and data protection considerations against considerations such as the prevention or detection of crime and the safety of the vulnerable – demand careful and mature judgment.

6

Other material provisions of the 1997 Act were:

a) section 117, whereby an applicant who believes that information contained in an ECRC is inaccurate may make an application to the Secretary of State for a new certificate. The Secretary of State has to consider such an application and issue a new certificate, if he is of the opinion that the information in the first certificate was inaccurate.

b) section 119(5), which relates to various sources of information including that provided by chief officers under section 115(7), whereby no proceedings shall lie against the Secretary of State by reason of an inaccuracy in the information made available or provided to him. The effect of this appears to be that no proceedings may be brought against the Secretary of State to whom a fee is payable, if the Criminal Records Bureau issues an ECRC which contains inaccurate information. There is no equivalent express statutory protection for chief officers who may supply inaccurate information to the Criminal Records Bureau.

c) section 115(8), which requires the Secretary of State to request relevant chief officers to provide relevant information which ought not to be included in the certificate in the interests of the prevention or detection of crime, but could nevertheless be disclosed to a prospective employer. Thus the statute embraces the prospective employer being provided with sensitive information which might prejudice the applicant's employment prospects, which will not be disclosed to the applicant.

7

The statutory structure which we have briefly referred to was considered in rather greater detail, but to the same relevant effect, in paragraphs 5 to 18 of the judgment of Lord Woolf CJ in the Court of Appeal in R(X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65. In that case, an applicant for an ECRC had challenged in judicial review proceedings the disclosure of information about two alleged incidents of indecent exposure, where no evidence had been offered at the applicant's trial, and he had been acquitted because the complainant had identified someone other than the applicant. The claimant contended unsuccessfully that the disclosure had been procedurally unfair because he had not been allowed to make representations; and that the disclosure infringed his rights under Article 8 of the European Convention on Human Rights. Lord Woolf noted in paragraph 18 of his judgment that the applicant had the opportunity to persuade the Secretary of State to correct the certificate – a reference to section 117; that the chief officer is under a duty to provide the information referred to in section 115(7), which is subject to the requirement that the information might be relevant and ought to be included in the certificate – matters for the opinion of the chief officer; and that the applicant is able to provide additional information if he wishes, whether in conflict with the certificate or not, to the prospective employer, who will make the decision whether or not he should be employed. Lord Woolf said at paragraph 37 that it was an important parliamentary intention that information should be disclosed for the protection of children and vulnerable adults even if it only might be true.

8

In R(L) v Commissioner of Police of the Metropolis [2009] UKSC 3, the Supreme Court, again in judicial review proceedings, held by a majority (Lord Scott of Foscote dissenting) that the effect of the approach taken to the Article 8 issue in the West Midlands Police case was to tilt the balance of the necessary Article 8(2) judgment too far against the applicant for the ECRC. Lord Hope, with whom Lords Saville, Brown and Neuberger agreed, described the relevant legislation and its effect in paragraphs 4 to 11 of his judgment and described how the system works in practice in paragraphs 30 to 34. He said that the effect of the Court of Appeal's decision in the West Midlands Police case had been to encourage the idea that priority must be given to the social need to protect the vulnerable as against the right to respect for private life of the applicant (paragraph 44). The legislation itself does not contravene...

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