R A v The Chief Constable of Kent Constabulary
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lady Justice Gloster,Lord Justice Pitchford |
| Judgment Date | 20 December 2013 |
| Neutral Citation | [2013] EWCA Civ 1706 |
| Docket Number | Case No: C1/2013/0865 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2013 |
[2013] EWCA Civ 1706
Lord Justice Pitchford
Lord Justice Beatson
and
Lady Justice Gloster
Case No: C1/2013/0865
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon. Mrs Justice Lang DBE
Royal Courts of Justice
Strand, London, WC2A 2LL
Dijen Basu (instructed by The Force Solicitor) for the Appellant
Ian Wise QC and Gemma Hobcraft (instructed by Royal College of Nursing Legal Services) for the Respondent
Hearing date: 6 November 2013
Approved Judgment
I Overview of issues and outcomes
In order to protect vulnerable groups, including children and residents of nursing and care homes, provision is made by the Police Act 1997 as amended ("the 1997 Act") for the Criminal Records Bureau ("the CRB") to issue an enhanced criminal record certificate ("ECRC") to those applying to work with such groups. The information disclosed in an ECRC is information the relevant chief constable considers "might be relevant" and "ought to be included". It can include allegations about criminal or other behaviour which have not been substantiated whether in the courts, in regulatory proceedings, or otherwise, as well as details of any recorded convictions. The effect of disclosing such information is often, in practice, the end of any opportunity for the individual to be employed in an area for which an ECRC is required. Balancing the risks of non-disclosure to the interests of the members of the vulnerable group against the right of the individual concerned to respect for his or her private life is a particularly sensitive and difficult exercise where the allegations have not been substantiated and are strongly denied.
This appeal concerns the way the appellant, the Chief Constable of Kent Constabulary, balanced those interests in the case of the respondent, A, who was formerly a staff nurse employed by Southern Cross Healthcare at a care home for elderly persons suffering with dementia and physical ailments. On 12 October 2012, following a decision made on behalf of the Chief Constable by Ms Gillian Bottomley, head of the Central Vetting Unit of the Kent Police, allegations that A had neglected and ill-treated four female residents of the home while she was working night shifts there made by several of her former colleagues were disclosed in an ECRC.
The disclosure in the ECRC is set out at [12] below. In summary, it recorded that criminal charges had been brought against A in respect of the allegations but at the Crown Court no evidence was offered, she was found not guilty of the charges, and the case was dismissed. It also recorded the representations made on behalf of A by the Royal College of Nursing stating that the decision to offer no evidence against A followed consideration by the CPS of all the evidence, including a statement which the CPS considered would significantly undermine the reliability of the two prosecution witnesses.
On 8 March 2013, Lang J held that the disclosure amounted to a disproportionate interference with A's right to respect for her private life and was therefore an unlawful interference with her right to private life under Article 8 of the European Convention on Human Rights ("the ECHR"). She stated ( [2013] EWHC 424 (Admin) at [81]) that, despite an impressive record of employment as a senior nurse, the disclosure prevented A from obtaining permanent full-time employment in her profession, and that its impact on her was, and would continue to be, grave.
Lang J stated (at [95]) that the allegations "have been repeatedly found to be unreliable", and were "either exaggerated or false". She also (at [81]) described the reliability of the information upon which the allegations were based as "highly questionable". Her Order, made on 8 March 2013, quashed the decision to disclose the information, declared (at paragraph 3 of her order) that the decision to disclose it constituted an unlawful interference with A's right pursuant to Article 8, and ordered damages to be assessed at a subsequent hearing.
The Chief Constable appeals against that order. I summarise the grounds upon which he does so at [35] but they can be distilled into two principal contentions. The first is that the judge conducted an impermissible paper trial of the merits, making findings of fact including findings about the reliability of witnesses. It was submitted on his behalf that he was the primary decision-maker, and that the judge went beyond the "higher intensity review" which is required in a claim for judicial review of a decision where Convention rights are at issue and in substance assumed the role of the primary decision-maker. The second is that the judge erred in relying on material which could not have been available to the Chief Constable at the time the decision to disclose was made or on the date of the disclosure. The question whether post-decision/post-disclosure material can be considered by the court arose again in R (L) v Chief Constable of Cumbria Constabulary [2013] EWHC 869 (Admin). In that case, Stuart-Smith J (at [24] – [27]), followed Lang J in stating that the court may and should take into account such material when scrutinising the lawfulness of a disclosure by the police in an ECRC.
The remainder of this judgment is divided into five sections. Sections II – VI contain a summary of the legal and regulatory framework, the facts, the terms of the disclosure about A in the ECRC, and the judge's reasoning. Section VII sets out the questions for decision in this appeal. Section VIII contains my analysis and my reasons for concluding that the judge was correct to find that the Chief Constable's decision was flawed, but that she fell into error in her assessment of proportionality. Her approach towards the material before her at points came very close to being fact-finding, which is (save in the case of jurisdictional facts and in the circumstances discussed in E v Secretary of State for the Home Department [2004] EWCA Civ 49, reported at [2004] QB 1044) inappropriate for a reviewing court, but did not do so. However, in taking account of material which could not have been available to the Chief Constable at the time the decision to disclose was made, she did err. I then consider the role of this court, and whether the interference with A's right under ECHR Article 8 to respect for her private life resulting from the disclosure made on 12 October was proportionate and thus justified. I conclude that the interference was disproportionate and therefore unlawful. Accordingly, I would not set aside paragraph 3 of the judge's order.
II The legal framework
This consists of the 1997 Act, the jurisprudence, and statutory guidance issued by the Home Office in 2012. By section 113B(4) of the 1997 Act:
"Before issuing an enhanced criminal record certificate, the Secretary of State must request any relevant chief officer to provide any information which —
(a) the chief officer reasonably believes to be relevant for the purpose described in the statement under sub-section (2), and
(b) in the chief officer's opinion, ought to be included in the certificate."
A chief officer is required to comply as soon as practicable with a request under section 113B. Sub-paragraphs (a) and (b) require an ECRC to contain information which the chief officer "reasonably believes to be relevant" to a post caring for children or vulnerable adults and ought, in the chief officer's opinion to be included in the certificate.
The leading decision on section 113B(4) is that of the Supreme Court in R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3, reported at [2010] 1 AC 410 (" L's case"). It is clear from that decision that the information disclosed may be information that does not involve any allegation of criminal behaviour on the part of the person employed in a post caring for children or vulnerable adults or applying for such a post (see [51]). It follows from this that whether any such information which "might be relevant" "ought" to be included requires a balance to be struck between the need to protect children and vulnerable adults from the risk of harm and the employee or prospective employee's right under Article 8 of the European Convention on Human Rights ("the ECHR") to respect for his private life: L's case at [42].
In L's case Lord Neuberger (at [81]) gave guidance about the balancing process and examples of the different and sometimes competing factors which have to be weighed up by the decision-maker. He stated:
"Examples of factors which could often be relevant are the gravity of the material involved, the reliability of the information on which it is based, whether the applicant has had a chance to rebut the information, the relevance of the material to the particular job application, the period that has elapsed since the relevant events occurred, and the impact on the applicant of including the material in the ECRC, both in terms of her prospects of obtaining the post in question and more generally."
He continued:
"In many cases, other factors may also come into play, and in other cases, it may be unnecessary or inappropriate to consider one or more of the factors I have mentioned. Thus, the material may be so obviously reliable, relevant and grave as to be disclosable however detrimental the consequential effect on the applicant."
In July 2012 the Home Office issued guidance under section 113B(4A) of the 1997...
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