The Queen (on the application of 'J') v The Chief Constable of Devon and Cornwall

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Foskett
Judgment Date26 October 2012
Neutral Citation[2012] EWHC 2996 (Admin)
Docket NumberCase No: CO/7426/2012
Date26 October 2012

[2012] EWHC 2996 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Hon. Mr Justice Foskett

Case No: CO/7426/2012

Between:
The Queen (on the application of 'J')
Claimant
and
The Chief Constable of Devon and Cornwall
Defendant

Stephen Broach (instructed by Royal College of Nursing Legal Services) for the Claimant

Stephen Morley (instructed by Devon & Cornwall Constabulary Legal Services Department) for the Defendant

Hearing date: 18 October 2012

Mr Justice Foskett

Introduction

1

This case arises out of the decision of the Defendant not to remove certain contested information from the 'other relevant information' section of the Claimant's Enhanced Criminal Records Certificates ('ECRCs').

2

The leading case in this area is R (on the application of L) (FC) (Appellant) v Commissioner of Police of the Metropolis [2010] 1 AC 410, a decision of the Supreme Court given in October 2009. Lord Hope of Craighead described an ECRC in this way at paragraph 1 of his judgment:

"The [relevant statutory provision] provides for enhanced criminal record checks to be carried out in various specified circumstances, such as where people are applying to work with children or vulnerable adults, for various gaming and lotteries licences, for registration for child minding and day care or to act as foster parents or carers. The check is enhanced in the sense that it will involve a check with local police records as well as the centralised computer records held by the Criminal Records Bureau. As well as information about minor convictions and cautions, it will reveal allegations held on local police records about the applicant's criminal or other behaviour which have not been tested at trial or led to a conviction. If the information satisfies the tests that [the relevant statutory provision] lays down, it must be given to the Secretary of State and the Secretary of State for his part must include it in the ECRC."

3

The relevant statutory provision for the purposes of the present case is section 113B of the Police Act 1997, inserted by section 163(2) of the Serious Organised Crime and Police Act 2005. It does not differ in any material respect from its predecessor, section 115 of the 1997 Act, to which the judgments in L related. (The section has been amended again with effect from 10 September 2012.) The relevant and operative subsections of section 113B for the purposes of this case are subsections (3) and (4) which read as follows:

(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 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.

4

It is the inclusion from December 2011 onwards in the 'other relevant information' section of the ECRCs of certain information relating to the Claimant based upon the tests set out in subsection (4) that lies at the heart of this case. Prior to December 2011 the ECRCs relating to the Claimant had contained no information in that section other than that to which I will refer in paragraph 8 below.

5

Permission to apply for judicial review was granted by Collins J on 31 August 2012 and the hearing has been expedited because of the effect that the inclusion of the relevant information is having on the Claimant's employment prospects.

6

These proceedings were issued on 11 July and on 17 July His Honour Judge Anthony Thornton QC gave certain directions which included the making of an anonymity order so far as the Claimant is concerned. I directed the continuation of that order at the outset of the hearing before me. I propose to deal with all individuals who figure in this case anonymously for reasons that will become apparent.

Background

7

The Claimant is a registered nurse from Zimbabwe and is now in her mid-30s. She qualified as a nurse in 1999 having commenced her training in 1996. She arrived in the UK in 2004. Since then she has been employed in various nursing roles in nursing homes and through care agencies. She has experience in nursing mentally ill patients, those with learning difficulties and terminally ill patients. Since her arrival in the UK she has completed a BSc degree in Health Studies and has obtained a Certificate in Dementia Awareness.

8

For completeness it should be noted that the earlier ECRCs did contain details of a caution administered to the Claimant in 2005 for "child cruelty" contrary to section 1 of the Children Act 1933. The inclusion of that matter in the ECRC is not challenged and it is not that matter that gives rise to the present proceedings. Some evidence was filed in these proceedings concerning the background to that matter, but it is important to note nothing came of it beyond the caution and, whilst it sounds serious in the way in which the offence is described, the actual circumstances were not as serious as might at first sight be thought. All I need to say for present purposes is that the allegation was not of any physical violence or cruelty to her son, either by her or by her husband who was also questioned about what happened; it involved leaving him on his own on one occasion for longer than was acceptable. At all events, the Claimant has disclosed this caution to the Nursing and Midwifery Council ('NMC'), but the Council has not sought to take it any further and the caution has, she says, never impeded her in obtaining employment even though it was referred to in about six ECRCs prior to those the subject of complaint in these proceedings.

9

That situation changed in December 2011 when she applied for two nursing positions and the ECRCs, both issued on 8 December 2011, contained information about allegations made against her in February 2007 and June 2011 by a 'Mrs R' and a 'Mrs T' respectively. A further ECRC issued on 6 January 2012 concerning another application she made for a nursing position contained the same information.

10

The information concerning these allegations was set out in the following terms:

"Devon & Cornwall Constabulary holds the following information concerning [J]…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 February 2007 a complaint was made to police alleging that [J] had assaulted a female elderly lady who was a resident at the residential home which employed [J]. Police visited the elderly lady who did not wish to make an official complaint, but stated that she felt that [J] was too severe and heavy handed, although she apologised to the lady when she pointed out that her actions hurt her. No police action was taken and the residential home reported to police that they were to arrange some manual handling training for [J].

In June 2011 police received a complaint that [J] had allegedly mistreated a resident at [a home for the blind]. It was alleged the resident lady had asked [J] for assistance in sitting up to which [J] is alleged to have grabbed the lady by the head and pulled her up. Police wished to interview the lady, but due to her being very ill and subsequently dying this was not possible. Two other residents also made a complaint about mistreatment from [J], but due to their dementia they were not considered reliable witnesses. [J] was interviewed by police regarding these incidents which she categorically denied. Police were advised that [J] subsequently left this employment."

11

The Claimant had been given no prior warning of the intention to add this information to the certificates and had been afforded no opportunity to make representations about the proposal to include such information.

12

On 24 January 2012 the Royal College of Nursing (the 'RCN') sent an urgent Pre-Action Protocol Letter on her behalf to the Defendant, the substance of which was in the following terms:

"While the information disclosed in the ECRC may be factually accurate in the narrowest sense, in that such complaints may have been made against the Claimant, the Claimant has always argued that it is obviously disproportionate to disclose this information. The disclosure is partial and does not give an accurate picture of the allegations or the surrounding circumstances in the following important respects:

Allegation 1

[ the first allegation as set out above was quoted here]

The patient in question asked the Claimant to adjust her pillow one evening. In so doing the Claimant inadvertently hurt the patient and immediately apologised. It was a male nurse who took over from the Claimant in the morning who reported the incident to the police, not the patient herself. The Claimant understands that the patient had mentioned the incident to the male nurse in passing but had not formally complained. The patient and her relatives remained happy for the Claimant to nurse the patient and after a short suspension to investigate the matter the Claimant was asked to return to work by her employer, with the only action taken being the provision of further manual handling training. The Claimant was not interviewed by the police, was not subject to any disciplinary procedures and was not...

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2 cases
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    ...Constabulary [2011] EWHC 2362 (Admin); R (W) v Chief Constable of Warwickshire Police [2012] EWHC 406 (Admin); R(J) v Chief Constable of Devon & Cornwall Police [2012] EWHC 2996 (Admin). Article 3 34 In this case, the Defendant submitted that Lord Hope's guidance as to the correct approa......
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