R LK v Independent Monitor
| Jurisdiction | England & Wales |
| Judge | Mr Justice William Davis |
| Judgment Date | 17 June 2016 |
| Neutral Citation | [2016] EWHC 1629 (Admin) |
| Date | 17 June 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5933/2015 |
[2016] EWHC 1629 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice William Davis
CO/5933/2015
Mr Ben Jaffey (instructed by Irvine Thanvi Natas) appeared on behalf of the Claimant
Mr Robin Hopkins (instructed by Government Legal Department) appeared on behalf of the Defendant
The claimant has worked for many years as a hypnotherapist, working in that capacity for local authorities, health trusts and mental health providers. He appears now to be hoping to develop his career by engaging in more general counselling work. He has undertaken or is undertaking a degree-level course in counselling studies.
In July 2014 he applied for a part-time position as a support work with a social care provider, apparently in order to provide financial support whilst he was undertaking his degree studies. It was necessary for that provider to have an enhanced criminal record certificate from the Disclosure and Barring Service. When application was made for such a certificate it was made known to the claimant that the Metropolitan Police intended to make disclosure on the certificate about allegations of sexual misconduct by the claimant, the allegations having been the subject of a criminal trial in which he had been acquitted. The claimant, through solicitors, invited the Metropolitan Police to review their decision to make such disclosure. As a result of representations, the proposed disclosure was amended but otherwise the Metropolitan Police maintained its view that it was relevant and ought to be included in the certificate.
As he was entitled to do, the claimant requested the Independent Monitor appointed by the Secretary of State for the Home Department to review whether the information provided by the Metropolitan Police was relevant and ought to be included in the certificate. By a decision letter of 25 August 2015, the Independent Monitor decided that the information was so relevant and should be disclosed. The claimant applies with leave of the single for judicial review of that decision by the Independent Monitor. The Metropolitan Police is an interested party but has taken no part in these proceedings.
The legal principles which apply in a case such as this are not in issue. Mr Jaffey, who appears for the claimant, produced a helpful note setting out the principles, a note with which, with one minor amendment, Mr Hopkins, who appeared for the Independent Monitor, agreed. The note refers in short form to the relevant authorities. I do not intend to refer to them in this judgment. They are referred to in numerous other judgments of this court and it is not necessary for me to do so here.
The statutory framework can be recited briefly. It appears in the Police Act 1997 (as amended). Section 113B deals with enhanced criminal record certificates. Sub-section (3) reads:
i. "(3) An enhanced criminal record certificate is a certificate which gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided with sub-section (4)."
Sub-section (4), which is most relevant to this case, reads:
i. "(4) Before issuing an enhanced criminal record certificate, the Disclosure and Barring Service must request any relevant chief officer of police to provide any information which the chief officer reasonably believes to be relevant for the purpose described in the statement under sub-section (2), and, in the chief officer's opinion, ought to be included in the certificate."
It was by reference to that power that the Metropolitan Police provided the information in this case.
The Independent Monitor became involved by dint of Section 117A of the same Act. It permits a person who believes the information provided in accordance with Section 113B is not relevant or ought not to be included to apply in writing to the Independent Monitor for a decision as to whether the information is information which is relevant and ought to be included.
The principles which have emerged in the course of not insignificant litigation in relation to these issues can be described simply as follows.
First, disclosure of the kind made in this case may be made notwithstanding that there was no criminal conviction.
Second, the decision maker — in this instance the Independent Monitor — has to follow a two-stage process. The court follows that same two-stage process. First, the question of relevance has to be considered. This court will review the decision as to relevance by reference to ordinary public law judicial review principles, that is to say investigating the rationality of the decision. The second stage is whether the information ought to be disclosed. That is a question of assessment of the proportionality of disclosure as against the effect on the person's private life by reference to Article 8 of the Convention. In relation to the proportionality exercise, there are a number of material factors which will include the gravity of the matter with which the information is concerned, the material underpinning the information, the relevance of it, how long ago the matters happened and the impact on any given applicant.
The authorities establish that the relevance review conducted by this court will be conducted just the same way as any other normal rationality review. The proportionality review will be subject to a "high intensity" review. I shall forbear from discussing further what precisely that term means. Where what happened is disputed then the decision maker and indeed this court need to determine the reliability of the allegation or — another way of describing it — the likelihood that it happened. It is agreed that a decision of the Disclosure and Barring Service not to bar the applicant under the other provisions relating to barring is a relevant factor albeit by no means determinative. Those legal principles are accepted.
The disclosure in this case with which the litigation is concerned reads as follows:
i. "The Metropolitan Police Service reasonably believes the following information to be relevant when considering the application by [the claimant] because it concerns alleged rape and sexual assault on a child under 14 and that on balance, despite need to respect the applicant's right to a private life, it ought to be disclosed for a role within the child and adult workforce sectors.
ii. In February 2006 a 16-year old female, whose mother had previously been in a relationship with [the claimant], alleged that he had physically and sexually abused her at the age of 11 years. [He] denied the allegations and the female at that time did not want to substantiate them further with the police. No further action was taken.
iii. In December 2011 the female repeated her allegations, [the claimant being named. He] was arrested in February 2012. He again denied the allegations. On this occasion he was charged with five counts of undecent assault, one count of rape and one count of gross indecency with a child.
iv. In June 2013 he appeared for trial at Snaresbrook Crown Court where, in putting the case before the jury for their decision, the judge reminded them to consider that during the case the complainant had admitted previously to telling lies. On 18 June 2015 he was found not guilty and acquitted on all counts."
The Independent Monitor, in his decision, decided that the information was accurate and it set out accurately the history of the case and what the allegations were. He decided that it represented material of sufficient seriousness and currency. There is no dispute that the Independent Monitor was wholly entitled, if not actually right, to reach those conclusions.
The Independent Monitor then moved on to consider credibility. He did it in this way. He said:
i. "Having considered the information being disclosed is accurate, sufficiently serious and sufficiently current, I have to consider its credibility."
This is not a case in which it can be...
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