The Queen (on the application of W) v Chief Constable of Warwickshire Police
| Jurisdiction | England & Wales |
| Judge | JUDGE GILBART QC |
| Judgment Date | 02 March 2012 |
| Neutral Citation | [2012] EWHC 406 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/9522/2011 |
| Date | 02 March 2012 |
[2012] EWHC 406 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ
His Honour Judge Gilbart QC
Honorary Recorder of Manchester
(sitting as a deputy High Court Judge)
Case No: CO/9522/2011
Pete Weatherby (instructed by Thompsons, Solicitors of Newcastle upon Tyne) for the Claimant
Jeremy Johnson QC (instructed by Warwickshire County Council Resources Group, Solicitors) for the Defendant
Hearing dates: 13 th February 2012
In this matter, Mr W seeks a declaration that the issue by the Defendant Chief Constable on 20 th July 2011 of an Enhanced Criminal Record Certificate under section 113 B of the Police Act 1997 (as amended) was unlawful, and also seeks damages for an alleged breach of Article 8 of the European Convention on Human Rights. The certificate in question here was issued by the Defendant Chief Constable on 11 th July 2011, after Mr W had applied to an education authority (not Warwickshire) to become a supply teacher. A note appears at the end of this judgement on the reasons why I have not set out the Claimant's name.
By Regulation 12 of the School Staffing (England) Regulations 2009 when the governing body of a community, voluntary controlled, community special or maintained nursery school approves, identifies, selects or recommends a person for appointment, it must obtain an "enhanced criminal record certificate" which is defined as one within the meaning of section 113B of the Police Act 1997 which includes suitability information relating to children within the meaning of section 113BA(2) of that Act. That provision is applied to supply teachers by Regulation 13.
Section 113B, so far as is relevant, reads 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 in the prescribed manner and form, and
(b) pays in the prescribed manner any prescribed fee.
(2) The application must—
(a) be countersigned by a registered person, and
(b) be accompanied by a statement by the registered person that the certificate is required for a prescribed purpose.
(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.
(5) ………………
(6) The Secretary of State must send to the registered person who countersigned the application—
(a) a copy of the enhanced criminal record certificate, and
(b) any information provided in accordance with subsection (5).
In this matter, the Chief Constable provided information under section 113B(4). The certificate under challenge was issued in July 2011.
The Certificate in Issue
The relevant parts of the Certificate read
"Police Records of Convictions, Cautions, Reprimands and Warnings
None Recorded
Information from the list held under section 142 of the Education Act 2002
None Recorded
ISA Children's Barred List information
None Recorded
ISA Vulnerable Adults' Barred List information
None Recorded
Other relevant information disclosed at the Chief Police Officer's discretion
Warwickshire Police holds the following information concerning the Applicant (Mr W) born…………that in the opinion of the Chief Officer might be relevant to this application and ought to be disclosed under Part V of the Police Act 1997:
In 2002, (Mr W) was employed as a teacher at a school for children with learning disabilities, including autism. Between March 2002 and September 2002, 4 separate incidents were reported where it was alleged that (Mr W) had assaulted or used excessive force on pupils.
In March 2002, a 15 year old boy alleged that (Mr W) had hit him in assembly. This matter was dealt with internally by the school
In April 2002, a multi-agency strategy meeting considered reports from the parents of a female pupil that Mr W had touched her bottom and squeezed her arm leaving a red mark. This matter was dealt with internally by the school.
In September 2002, a classroom assistant reported that in June 2002 (Mr W) had kicked a classroom door shut on her and a pupil, causing both the pupil and assistant's hand/arm to be caught in the doorframe.
On 12 September 2002, an allegation was made that (Mr W) had deliberately slammed a classroom door on to a pupil's hand, causing a significant injury. This allegation resulted in a police investigation. Mr W was not charged.
(Mr W) was subsequently dismissed from the school but was successful in proceedings before the Employment Tribunal for unfair dismissal. The Employment Tribunal is not believed to have had evidence before it (in) respect of the March April and June 2002 allegations."
The Law
The leading case is R(L) v Commissioner of Police for the Metropolis [2009] UKSC 3 [2010] 1 AC 410. It addressed earlier legislation (the Police Act 1997 before its amendment in 2005) but the relevant test (s 115(7) of the 1997 Act) is the same as that in section 113B(4). The statute involves a two stage test
(a) might the material identified in the certificate be relevant ?
(b) ought it to be included ?
At the first stage, it is for the Chief Constable to form an opinion as to whether the information might be relevant- see Lord Hope (with whom Lord Saville JSC Lord Brown JSC and Lord Neuberger of Abbotsbury MR all expressly agreed) in R(L) v Commissioner of Police for the Metropolis [2009] UKSC 3 [2010] 1 AC 410 at paragraph 39. The threshold is a low one, and may extend to mere suspicions or hints of matters which are disputed by the applicant; see Lord Neuberger of Abbotsbury MR at paragraph 77.
It is for the Chief Constable or his delegate to form an opinion on whether material might be relevant. In doing so, he must ask himself whether the information might be true, and if so, the degree of connection between the information and the purpose for which the certificate was required- i.e. in this case the Claimant teaching children. At this first stage, the issue is whether the opinion formed by the Chief Constable or his delegate was reasonably open to him. It is a matter of judgement only reviewable on a Wednesbury basis ; see Richards LJ in R (Pinnington) v Chief Constable of Thames Valley Police [2008] EWHC 1870, endorsed in R(L) v Commissioner of Police for the Metropolis by Lord Hope at paragraph 39.
At the second stage, Article 8 of the European Convention of Human Rights is relevant. That reads as follows
"Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
In the words of Lord Hope at paragraph 40 of R(L) v Commissioner of Police for the Metropolis
"40. The question whether the information might be relevant is not, however, the end of the matter. An opinion must also be formed as to whether it "ought" to be included in the certificate. It is here, as the guidance that is available to the police correctly recognises, that attention must be given to the impact that disclosure may have on the private lives of the applicant and of any third party who is referred to in the information. For the reasons I have already given (see paras 22–29), I consider that the decisions which the chief officer of police is required to take by section 115(7) of the 1997 Act will fall within the scope of article 8(1) in every case. So in every case he must consider whether there is likely to be an interference with the applicant's private life, and if so whether that interference can be justified."
Lord Hope went on at paragraphs 44 to paragraph 47 to say
"44……………………………………The words "ought to be included" in section 115(7)(b) require to be given much greater attention. They must be read and given effect in a way that is compatible with the applicant's Convention right and that of any third party who may be affected by the disclosure: Human Rights Act 1998 Act, section 3(1). But in my opinion there is no need for those words to be read down or for words to be added in that are not there. All that is needed is to give those words their full weight, so that proper consideration is given to the applicant's right to respect for her private life.
45. The correct approach, as in other cases where competing Convention rights are in issue, is that neither consideration has precedence over the other: Campbell v MGN Ltd [2004 ] UKHL 22, [2004] 2 AC 457, para 12, per Lord Nicholls of Birkenhead. The rating table in MP9 should be restructured so that the precedence that is given to the risk that failure to...
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