R (Pinnington) v Chief Constable of Thames Valley Police
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Mr Justice Keith |
| Judgment Date | 31 July 2008 |
| Neutral Citation | [2008] EWHC 1870 (Admin) |
| Date | 31 July 2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/9310/2007 |
[2008] EWHC 1870 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards and
Mr Justice Keith
Case No: CO/9310/2007
Tania Griffiths QC (instructed by Chris Saltrese) for the Claimant
Jason Beer (instructed by The Solicitor to the Thames Valley Police) for the Defendant
Hearing dates: 25 June 2008
This claim for judicial review concerns the issue of an enhanced criminal record certificate (to which I will refer simply as a “certificate”) pursuant to s.115 of the Police Act 1997. In 2005 the claimant was the deputy principal of a college for young autistic adults in Oxfordshire. Following a reorganisation at work, his employment was to be transferred to a national charity which had a policy of requiring employees to possess a “clean” certificate. The claimant applied to the Criminal Records Bureau (“the CRB”) for a certificate, but the certificate issued to him recorded details of three allegations which had been made against him. This resulted in his dismissal from employment. Leaving aside the issues raised by the three allegations, he was and is of good character.
The claim form identifies the certificate as the subject of the challenge, but the true target is the decision by the police to provide the information which was included in the certificate. That decision was taken by Mr Francis Habgood, Assistant Chief Constable of the Thames Valley Police, to whom the relevant function had been delegated by the Chief Constable. Thus it is the Chief Constable, not the CRB, who is named as a defendant to the claim.
Statutory framework
Section 115 of the 1997 Act provides in subs.(1) that the Secretary of State shall issue an enhanced criminal record certificate to any individual who makes an application in the prescribed form, countersigned by a registered person, and who pays the relevant fee. The functions of the Secretary of State under the legislation are discharged by the CRB.
By subs.(2), an application must be accompanied by a statement by a registered person (in this case the employer) that the certificate is required for the purposes of an “exempted question” asked, so far as relevant, “in the course of considering the applicant's suitability for a position within subsection ( 3) or (4)”. An “exempted question” is defined in s.113 as a question in relation to which s.4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 has been excluded by an order made by the Secretary of State. Section 4(2) of the 1974 concerns non-disclosure of information about spent convictions or circumstances ancillary thereto. The certificate in this case was required for an exempted question.
A position is within subs.(3) if it involves regularly caring for, training, supervising or being in sole charge of persons aged under 18. A position is within subs.(4) if it is of a kind specified in regulations made by the Secretary of State and it involves regularly caring for, training, supervising or being in sole charge of persons aged 18 or over. The claimant's position at the college fell within subs.(4).
Subsections (6) to (8) provide as follows:
“(6) An enhanced criminal record certificate is a certificate which -
(a) gives –
(i) the prescribed details of every relevant matter relating to the applicant which is recorded in central records, and
(ii) any information provided in accordance with subsection (7), or
(b) states that there is no such matter or information.
(7) Before issuing an enhanced criminal record certificate the Secretary of State shall request the chief officer of every relevant police force to provide any information which, in the chief officer's opinion –
(a) might be relevant for the purpose described in the statement under subsection (2), and
(b) ought to be included in the certificate.
(8) The Secretary of State shall also request the chief officer of every relevant police force to provide any information which, in the chief officer's opinion –
(a) might be relevant for the purpose described in the statement under subsection (2),
(b) ought not to be included in the certificate, in the interests of the prevention or detection of crime, and
(c) can, without harming those interests, be disclosed to the registered person.”
The information in this case was provided under subs.(7). I have quoted subs.(8) only because it is touched on incidentally later in this judgment.
Section 117 provides that where an applicant for a certificate believes that the information contained in the certificate is inaccurate he may make an application in writing to the Secretary of State for a new certificate; and where the Secretary of State is of the opinion that the information in the certificate is inaccurate he shall issue a new certificate. It was held in R (B) v Secretary of State for the Home Department [2006] EWHC 579 (Admin) that the duty of the Secretary of State under that section is to determine the accuracy of the fact that allegations have been made, not to consider whether any allegations made have any foundation. On that construction, the section has no application to the present case, and it is not suggested by the defendant that recourse to the Secretary of State under the section provided an appropriate alternative remedy.
Guidance on the operation of the relevant provisions is contained in Home Office Circular 5/2005, Criminal Records Bureau: Local Checks by Police Forces for the Purpose of Enhanced Disclosures. I shall need to refer to a part of the guidance when considering the claimant's case.
The legislative scheme and policy were considered by the Court of Appeal in R (X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65. Lord Woolf CJ, giving the leading judgment, noted the following significant aspects of the scheme (at para 18):
“(i) The whole process of obtaining an ECRC is initiated by the person to whom the certificate will relate. The certificate is for his purposes to enable him to obtain employment which, at least in practical terms, will not be available to him unless he obtains a certificate.
(ii) The certificate will only be seen by the applicant and his prospective employer.
(iii) The applicant has the opportunity to persuade the Secretary of State to correct the certificate.
(iv) The Chief Constable is under a duty to provide the information referred to in section 115(7). This is subject to the requirement that the information might be relevant and ought to be included in the certificate. What might be relevant and what ought to be included is a matter for the opinion of the Chief Constable.
(v) The applicant is in a position to provide additional information if he wishes, whether in conflict with the certificate or not, to the prospective employer and it is the prospective employer who will make the decision as to whether he should or should not be employed.”
At para 36 Lord Woolf stressed that there is no presumption against disclosure by the Chief Constable. He said that having regard to the language of s.115 “the Chief Constable was under a duty to disclose if the information might be relevant, unless there was some good reason for not making such a disclosure”. He went on to say in para 37:
“This was obviously required by Parliament because it was important (for the protection of children and vulnerable adults) that the information should be disclosed even if it only might be true. If it might be true, the person who was proposing to employ the claimant should be entitled to take it into account before the decision was made as to whether or not to employ the claimant. This was the policy of the legislation in order to serve a pressing social need …” (emphasis added).
Lord Woolf considered the statutory scheme to be compatible with article 8 ECHR, but accepted that article 8 might still have a role to play in relation to the individual disclosure decision by the Chief Constable. He expressed the point in this way (para 41):
“As already indicated, the Chief Constable starts off with the advantage that his statutory role is not in conflict with article 8, because the statute meets the requirements of article 8(2). It follows also, that as long as the Chief Constable was entitled to form the opinion that the information disclosed might be relevant, then absent any untoward circumstance which is not present here, it is difficult to see that there can be any reason why the information that 'might be relevant', ought not to be included in the certificate. I accept that it is possible that there could be cases where the information should not be included in the certificate because it is disproportionate to do so; the information might be as to some trifling matter; it may be that the evidence made it so unlikely that the information was correct, that it again would be disproportionate to disclose it. These were not, in my judgment, the situations on the facts before the Chief Constable.”
The facts in that case were that the claimant had been charged with offences of indecent exposure but the proceedings had subsequently been discontinued when the complainant failed to identify him. The claimant had been dismissed from his employment as a social worker and had applied for another social work position. The Chief Constable considered the question of proportionality but was of the opinion that there should be disclosure. At para 43 Lord Woolf described that decision as unsurprising, since if...
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