The Queen (on the application of L) v The Chief Constable of Cumbria Constabulary

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Stuart-Smith
Judgment Date19 April 2013
Neutral Citation[2013] EWHC 869 (Admin)
Docket NumberCase No: CO/8186/2012
Date19 April 2013

[2013] EWHC 869 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

The Rolls Building

7 Rolls Building

Fetter Lane

London

EC4A 1NL

Before:

The Honourable Mr Justice Stuart-Smith

Case No: CO/8186/2012

Between:
The Queen (on the application of L)
Claimant
and
The Chief Constable of Cumbria Constabulary
Defendant

Stephen Broach (instructed by Goodmans Law) for the Claimant

Charlotte Ventham (instructed by Cumbria Police Legal Services) for the Defendant

Hearing dates: 5 March 2013

Mr Justice Stuart-Smith

Introduction

1

The claimant is an experienced secondary school teacher aged in his mid-forties. The defendant is the Chief Constable of Cumbria Constabulary and is therefore responsible for the provision of information for Enhanced Criminal Records Certificates pursuant to the Police Act 1997 as amended. By these proceedings the Claimant challenges the defendant's decision, communicated by letters dated 15 May and 27 July 2012, not to remove contested information from the "other relevant information" section of the claimant's Enhanced Criminal Record Certificate ("ECRC"). He contends that the provision of the contested information and the refusal to remove it unjustifiably infringed his right to private life contrary to Article 8 of the European Convention on Human Rights and was therefore unlawful. If successful in his challenge the Claimant seeks damages for the breach. This judgment addresses the issue of breach but not the issue of damages.

2

Permission to apply for Judicial Review was granted by Lang J on 15 January 2013. When giving permission, Lang J made an order pursuant to CPR Rule 39.2 that the Claimant should be referred to by the letter L in any public documents in these proceedings and that there should be no publication whether in electronic format, or hard print, of the name or address of the claimant or of any particulars likely to lead to the identification of the claimant without the leave of the court. That order is extended and remains in force as a result of this judgment.

3

This judgment:

i) Addresses the relevant principles to be applied in this case at [4–28];

ii) Summarises the factual background at [29–67];

iii) Discusses the application of the relevant principles to the facts of the case at [68–91];

iv) Concludes at [92] that, for the reasons set out in the judgment, L's challenge succeeds.

The Relevant Principles

4

The principles to be applied on an application like this are the subject of high authority and are now well established.

5

The power and duty to provide ECRCs derives from s.113B of the Police Act 1997. That section has been the subject of amendment from time to time. Between 28 February 2009 and 9 February 2012, which is the material period for present purposes, it stated as follows:

"113B Enhanced criminal record certificates

(1) The Secretary of State must issue an enhanced criminal record certificate to any individual who—

(a) Makes an application […], and

(b) Pays in the prescribed manner any prescribed fee

(3) An enhanced criminal record certificate is a certificate which—

(a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with subsection (4), or

(b) States that there is no such matter or information.

(4) Before issuing an enhanced criminal record certificate the secretary of state must 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."

6

Where an applicant who challenges the legality of inclusion of information in an ECRC relies upon Article 8, the issue for the Court is whether there has been an interference with the applicant's right to private life and, if such interference has occurred, whether it is lawful. In deciding whether it is lawful or not, the court scrutinises the decision and any justification advanced for it to see whether there was sufficient justification for the interference with the applicant's private life: see Huang v Home Secretary [2007] 2 AC 167 at [13]. The outcome of the court's enquiry is essentially a binary decision: was any interference lawful or not? It is no part of the courts purpose to go further and to direct the provider of an ECRC precisely how he might edit or adjust the information so as to act lawfully. If the court rules that the decision under challenge is unlawful, it is then for the Chief Constable to take a fresh decision.

7

The nature of the court's enquiry has been variously described. In R (SB) v Governers of Denbigh High School [2007] 1 AC 100 Lord Bingham of Cornhill said at [30]:

"It is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting …. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test …. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time: Wilson v First

County Trust (No 2) [2004] 1 AC 816, paras 62–67. Proportionality must be judged objectively, by the court … ."

8

Further guidance on the nature of the court's enquiry is provided by Belfast City Council v Miss Behavin' Limited [2007] 1 WLR 1420 at [31] per Baroness Hale of Richmond and R (Aguilar Quila) v Home Secretary [2012] 1 AC 621 at [44 – 46] per Lord Wilson. That guidance establishes that:

i) In human rights adjudication, the court is concerned whether the human rights of the claimant have in fact been infringed, not with whether the administrative decision maker properly took them into account;

ii) The burden is upon the Defendant to establish that any interference with the rights of the claimant under article 8 was justified.

9

The leading authority on the provision of ECRCs is R (L) v Commissioner of Police of the Metropolis [2010] 1 AC 410. At [24] Lord Hope explained why ECRCs which are typically part of the process of recruitment for employment affect private life:

"In the context of this case it is sufficient to note that it has been recognised that respect for private life comprises, to a certain degree, the right to establish and develop relationships with other human beings;…. Excluding a person from employment in her chosen field is liable to affect her ability to develop relationships with others, and the problems that this creates as regards the possibility of earning a living can have serious repercussions on the enjoyment of her private life:…. She is entitled also to have her good name and reputation protected; As Baroness Hale said in R (Wright) v Secretary of State for Health [2009] AC 739, para 36 the fact that a person has been excluded from employment is likely to get about and, if it does, the stigma will be considerable."

10

The speeches of Lord Hope and Lord Neuberger both addressed the balancing act which has to be carried out by the Defendant when considering what to include in an ECRC. At [42] Lord Hope said:

"So the issue is essentially one of proportionality. On the one hand there is a pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the Applicant's right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place."

11

The Supreme Court recognised that the effects of an adverse ECRC may be very serious for an applicant. At [43] Lord Hope highlighted the likely effects of the release of sensitive information on the applicant's opportunities for employment and said:

"… it is no answer to these concerns that the ECRC is issued on the application of the persons concerned. It is true that they can choose not to apply for a position of the kind that requires such a certificate. But they have, in reality no free choice in the matter if an employer in their chosen profession insists, as he is entitled to, on an ECRC. The answer to the question whether there is any relevant information is likely to determine the outcome of their job application. If relevant information is disclosed they may as a result be cut off from work for which they have considerable training and experience. In some cases they could be excluded permanently from the only work which is likely to be available to them. They consent to the application, but only on the basis that their right to private life is respected.

12

At [75] Lord Neuberger made the same point saying:

"It seems to me realistic to assume that in the majority of cases, it is likely that an adverse ECRC,…will represent something close to a killer blow to the hopes of a person who aspires to any post which falls within the scope of the section."

13

As the facts of the present case show, this assessment by the Supreme Court is no understatement. It is, almost self evidently, no answer to say that it is for the prospective employer who receives the adverse ECRC to determine whether the information is either well founded or of sufficient seriousness to justify the withholding of an offer of employment. The reality is, as Lord Neuberger said, that an adverse ECRC is likely to be a killer blow, even if only because of the additional work that would be required on the part of the prospective employer to determine whether the information in the ECRC means that the subject poses a real risk or not. It needs no imagination to understand that an employer who is remotely risk averse will not employ someone who is the subject of an adverse ECRC particularly if the...

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