The Queen (on the application of MS) v The Independent Monitor of the Home Office The Metropolitan Police Service (Interested Party)
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Blair |
| Judgment Date | 18 April 2016 |
| Neutral Citation | [2016] EWHC 655 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 April 2016 |
| Docket Number | Case No: CO/3903/2015 |
[2016] EWHC 655 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Blair QC
(Sitting as a Judge of the High Court)
Case No: CO/3903/2015
and
Joseph Markus (instructed by Lester Morrill Solicitors) for the Claimant
Robin Hopkins (instructed by The Government Legal Service) for the Defendant
Hearing date: 1st March 2016
His Honour Judge Blair QC:
Background
The Claimant wants to apply to recommence work as a licensed hackney carriage taxi driver, a job he last did in 2001 when his licence was revoked. In order to do so he needs to obtain and submit an Enhanced Criminal Record Bureau Certificate ('a Certificate', also known as an ECRC) to the body which regulates hackney carriage licences. These are administered by the Disclosure and Barring Service ('DBS').
Following his application for a Certificate in August 2013, the DBS sought the input of the Metropolitan Police Service ('MPS') to see if the police had any information to disclose which ought to be included in the Certificate. (The MPS is the Interested Party in these proceedings, although they have not submitted a skeleton argument and have not been represented.)
The MPS drafted its intended response to the DBS with the 'information' it considered relevant and which they considered ought to be disclosed in the Certificate to be issued for the Claimant. The Claimant strongly disagreed with that proposed disclosure because it related to old allegations of criminal behaviour which have never been substantiated against him in any forum. The effect of disclosing it will almost certainly put an end to his chance of being granted a hackney carriage licence.
He challenged the inclusion of that information in his Certificate but this only resulted in a very minor amendment by the police. Therefore, because he remained dissatisfied with the outcome, his case was referred to the Defendant – the Independent Monitor of the Home Office ('IM'). The outcome of the process which followed resulted in further modest changes being made to the information which was considered ought to be disclosed in his Certificate, but not so as to satisfy the Claimant.
It is a particularly sensitive and difficult exercise to balance the risk of non-disclosure of old criminal allegations which have never been substantiated and are strongly denied (because of the right of an individual licence applicant to respect for his private life) against the rights of vulnerable people using taxis to be protected from risks from their drivers by those who have the duty to consider the suitability of persons to obtain taxi licences. The Claimant, being dissatisfied with the outcome of the IM's review, brings these proceedings for a Judicial Review of the IM's review of the MPS's review of the information which they considered was relevant and ought to be included in his Certificate.
Permission to bring this case (allowing an extension of time to do so) was granted by HHJ Gosnell sitting as a Deputy High Court Judge on 2 October 2015. He also granted anonymity to the Claimant because otherwise the objectives of bringing this case could be defeated. I agree with that and will refer to the Claimant as 'MS'. There is a history of earlier applications by MS for a taxi licence, unsuccessful appeals, a past judicial review application, etc., but in my view there is no need to relate any of that since I must look at this case afresh.
The legal framework
By section 113B(4) of the Police Act 1997:
"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."
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"). Whether any information which "might be relevant" "ought" to be included requires a balance to be struck between the need to protect vulnerable groups from the risk of harm and the applicant's right under Article 8 of the ECHR to respect for his private life – Lord Hope at [42].
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 [Certificate], both in terms of her prospects of obtaining the post in question and more generally."
In July 2012 the Home Office issued Statutory Disclosure Guidance under section 113B(4A) of the 1997 Act to assist chief officers of police in making consistent and proportionate decisions when providing information for inclusion in Certificates. The statutory guidance contained a number of principles. Those material to the present case are principles 2, 3, 4 and 7. I shall quote from them:-
"Principle 2 — Information must only be provided if the chief officer reasonably believes it to be relevant for the prescribed purpose…
13… The word "relevant" should be given its natural meaning, expressed as pertinent to, connected with or bearing upon the subject in question… Forming a reasonable belief that information is relevant is a higher hurdle than merely considering that it might be or could possibly be relevant…"
There is then a non-exhaustive list of important factors which should be taken into account which includes that: the information should be viewed as sufficiently serious, sufficiently current and sufficiently credible. Paragraph 18 deals in more detail with credibility:
"This will always be a matter of judgment, but the starting point will be to consider whether the information is from a credible source. Chief officers should consider whether there are any specific circumstances that lead them to consider the information is unlikely to be true or whether the information is so without substance that it is unlikely to be true. In particular, allegations should not be included without taking reasonable steps to ascertain whether they are more likely than not to be true." (My emphasis.)
The parties accepted before me that this guidance must obviously also extend to taking reasonable steps to ascertain whether the allegations are more likely than not to involve the correct identification of the applicant as their perpetrator.
Principle 3 — information should only be provided if, in the chief officer's opinion it ought to be included in the certificate. This includes the consideration of the impact of disclosure on the private life of the applicant or a third party so as to address Article 8 of the ECHR:
"…22. If there is a legitimate aim pursued, the next step is to consider whether the disclosure of the information is necessary to pursue that aim… If [so] then the question becomes one of proportionality. In practice, this will involve weighing factors underpinning relevancy, such as seriousness, currency and credibility, against any potential interference with privacy. All decisions must be proportionate. This means that the decision is no more than necessary to achieve the legitimate aim and that it strikes a fair balance between the rights of the applicant and the rights of those the disclosure is intended to protect. It is therefore essential that the reasoning in reaching a decision is fully and accurately recorded in each case." (My emphasis.)
The last sentence of paragraph 22 is also embodied in " Principle 7 — Information for inclusion should be provided in a meaningful and consistent manner, with the reasons for disclosure clearly set out." This is spelt out in paragraph 31:
"Neither the applicant nor the … other body to whom they may wish to show the certificate should be left to speculate as to the reasons why information has been included. Both these reasons and the information itself should be set out in a clear and meaningful way and in a consistent format."
Under " Principle 4 — The chief officer should consider whether the applicant should be afforded the opportunity to make representations", some factors relevant to this consideration are set out in bullet points which includes:
"is there any doubt as to whether factual information is correct or remains valid?"
My attention was drawn to a number of authorities. In C v Chief Constable of Greater Manchester and Secretary of State for the Home Department [2010] EWHC 1601 (Admin) Langstaff, J. observed, at [12], that the decision-maker must be careful in weighing the risk, on the one hand, of non-disclosure, against the risks of disclosure, thereby necessitating a close attention to detail so as to ensure a balance which complies with the duty of proportionality. At [13] he said the force of the accusations is relevant to striking that balance — "Weaker allegations must carry less weight in the balancing process than ones with...
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