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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

02 MAY 2013

R (on the application of A) v Chief Constable of Kent Constabulary [2013] EWHC 424 (Admin); (2013) PLLR 041

Police - criminal records - disclosure - section 113B(4) Police Act 1997 - allegations - Articles 3 and 8 European Convention on Human Rights interference with private life - Statutory Disclosure Guidance - proportionality of disclosure - credibility of allegations - section 6 Human Rights Act 1998 - role of the court

The disclosure of information relating to allegations against a nurse under the Police Act 1997 was not lawful where the decision-maker had failed to fully consider the credibility of the allegations and therefore was unable to make a proper assessment of the proportionality of disclosure in relation to the applicant's rights under Article 8 of the European Convention on Human Rights. The court's role in such a case was to make its own assessment of proportionality and not simply to review the decision to disclose. Where the allegations were, on the balance of probabilities, likely to be exaggerated or false, the balance fell in favour of non-disclosure.

8 March 2013

Administrative Court

Lang J

(1)        The Claimant (A) was a registered nurse. In her previous employment she had been accused of mistreating a patient. Due to lack of evidence, no action was taken by the police or the Nursing and Midwifery Council and, following a period of suspension, A was reinstated to her position. On seeking employment elsewhere, details of these allegations were included by the defendant (CCKC) on the face of the Enhanced Criminal Records Bureau certificate A applied for.

(2)        A challenged the decision of CCKC to disclose information relating to the allegations on the grounds that (a) the disclosure was a disproportionate and therefore unlawful with her right to respect for her private life under Article 8 of the European Convention on Human Rights; and (b) that CCKC had failed to apply the correct legal test in assessing credibility and proportionality.

(3)        Lang J held (1) that the disclosure of material under section 113B(4) of the Police Act 1997 would usually amount to an interference with the applicant's rights under Article 8 of the European Convention on Human Rights. It was for the Chief Constable to consider whether such disclosure was justified. Considerations of the applicant's rights and the public interest in disclosure were to be given equal weight (R (L) v Commissioner of Police of the Metropolis [2010] 1 AC 410 followed) [28] - [33]. (2) CCKC could not avoid the need to consider the impact on A's Article 8 rights by arguing that the Article 3 rights of vulnerable patients could be put at risk. Article 8 concerned the rights of both A and others. Interference with Article 8 would be easier justified where the risk of harm to others was serious. Article 3 did not impose a positive duty on the state to disclose information; the positive duty under Article 3 applied only to a narrow class of case involving a real and immediate risk of harm [34] - [37]. (3) The Court was under a duty to act in accordance with Convention rights. It was required to consider the facts at the time of adjudication, rather than at the time of the contested decision. This had the effect that the Court was not simply conducting a judicial review, but determining a claim under the Human Rights Act 1998. The court should make an assessment of the reliability of the allegations, rather than reviewing CCKC's approach to the same question (Manchester City Council v Pinnock [2011] 2 AC 10 considered) [38], [42] - [46]. (4) That, in making a decision as to whether to disclose, the Statutory Disclosure Guidance set down four questions to be asked: whether the information was from a credible source; whether there were any specific circumstances to lead the decision maker to consider that the information was likely to be true; whether the information was so without substance that it was unlikely to be true; and, if the decision-maker was minded to disclose, whether all reasonable steps had been taken to ascertain whether the allegations are more likely than not to be true. In only considering the third of these, CCKC had applied too low a threshold in consideration the credibility of the allegations. The decision-maker had also failed to take into account all the relevant facts. The result was that no appropriate consideration of proportionality could be carried out, as this would have required a proper assessment of the credibility of the allegations. The decision-maker also failed to properly take into account the fact that the Crown Prosecution Service did not consider there to be enough evidence to bring a case and that the Independent Safeguarding Authority had taken no action against A. Concerns also arose around the failure by the police to interview the manager of the care home in which A was employed when the allegations were made, or to await the outcome of A's appeal against suspension from employment by the care home. As a result, the court could only give limited weight to CCKC's views. When assessing an interference with Article 8 rights in the context of disclosure, the legitimate aim was the protection of the rights and freedoms of others. Proportionality involved balancing the rights of the applicant against the interests of the community. The allegations against A were, on the balance of probabilities, either exaggerated or false. Where this was the case, non-disclosure should be favoured [57] - [61], [66], [71] - [78], [95].

Disclosure was in breach of Article 8 of the European Convention on Human Rights and section 6(1) of the Human Rights Act 1998.

Key paragraphs

[1] - [4] - Introduction

[5] - [23] - The facts

[24] - [26] - Grounds for judicial review

[27] - [37] - Article 8

[38] - [48] - The role of the court in human rights claims

[49] - [67] - The defendant's decision

[68] - [96] - The court's assessment under Article 6

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