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R (on the application of J) v Chief Constable of Devon and Cornwall [2012] EWHC 2996 (Admin); (2012) PLLR 143

Police Act 1997 - Enhanced Criminal Record Certificate - other relevant information - allegations - Article 8 European Convention on Human Rights - right to respect for private life - proportionality - failure to give opportunity to make representations - gravity of allegations

The decision to include information regarding a number of allegations in an applicant's enhanced Criminal Record Certificate was a disproportionate breach of Article 8 European Convention on Human Rights where the Claimant had not been given the opportunity to make representations prior to the inclusion of the allegations and where, on balance, the allegations were not of sufficient gravity to require disclosure bearing in mind the impact on the Claimant's Article 8 rights.

26 October 2012

Administrative Court

Foskett J

(1)        The claimant (J) was a nurse who worked primarily in care homes. She applied for Enhanced Criminal Record Certificates (ECRCs) pursuant to two job applications. Details of allegations previously made against her were included as ‘other relevant information' pursuant so section 113B(4) of the Police Act 1997. Of these allegations one had arisen when J accidentally hurt a patient and was subsequently given further manual handling training, and two others were made following leading questions and the by patients whose statements were said to be unreliable. No police action had been taken in either situation, nor had J been referred to the Nursing and Midwifery Council. No contextual or background evidence was included in the ECRC J was not given the opportunity to contest this prior to the inclusion. She challenged the inclusion once the ECRCs were issued. The decision to include was reviewed by an officer not involved in the original decision, who found that the inclusion had been disproportionate. The Detective Superintendent with delegated authority to issue ECRCs disagreed and upheld the original ECRCs.

(2)        J claimed that the decision to disclose information relating to the allegations was in breach of her right to respect of her private life under Article 8 of the European Convention on Human Rights.

(3)        Foskett J held (i) (R (on the application of L) (FC) v Commissioner of Police of the Metropolis [2010] 1 AC 410 followed) that the risk of disclosure always engaged Article 8, and that the appropriate assessment was not only whether the information concerned was relevant but also whether it ought to be disclosed. This was to be assessed on the basis of proportionality, balancing the pressing social need to protect children and vulnerable adults from harm against the damaging effect of disclosure on J's private life [31] - [35]. (ii) That ‘appropriate weight' must be given to the view of the decision-maker (Huang v Secretary of State for the Home Department [2007] 2 AC 167 followed) [39]. (iii) That the question of whether the allegations should be disclosed was not clear cut, and as such it had been a significant error not to give J the opportunity to make representations. The point at which J had had such an opportunity was too late to prevent the negative impact of the initial disclosure. Although these cases were always fact specific, in very few would it be appropriate that no such opportunity be given (R (C) v Chief Constable of Greater Manchester Police [2011] EWCA Civ 175 and R (B) v Chief Constable of Derbyshire Constabulary [2011] EWJC 2362 (Admin) followed) [41] - [50]. (iv) That, considering the cumulative effect of the allegations and the approach taken by the decision-maker, the unsubstantiated nature of the allegations should have precluded disclosure. Furthermore, it was important to take into account that J had only faced two allegations during her 7 year period as a nurse in the UK, and that her colleagues had not formed the impression that she was consistently heavy-handed with patients. The risk of occasional heavy-handedness was not sufficient to outweigh J's right to respect for her private life under Article 8. Including her own account of events alongside the information of the allegations would not have sufficiently protected her Article 8 rights [72] - [76]

Declaration that disclosure breached Article 8 rights granted. Decisions of the defendant quashed.

Key paragraphs

[1] - [6] Introduction

[7] - [17] Background

[18] - [29] Decision-making process

[30] - [40] The law

[41] - [52] Lack of opportunity to make representations

[53] - [78] Was the disclosure proportionate?

[79] - [81] Conclusion

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