Case No: CO/2535/2003
Neutral Citation Number: [2004] EWHC 61 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Friday 23rd January 2004
Before:

THE HONOURABLE MR JUSTICE WALL

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Between:

	X	Claimant	
	- and -		
	THE CHIEF CONSTABLE OF WEST MIDLANDS POLICE	Defendant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
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Mr. Dan Squires (instructed by Public Law Solicitors) for the Claimant
Miss Fiona Barton (instructed by John Kilbey, solicitor) for the Defendant

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Judgment
Mr Justice Wall:

Introduction
1.	In this case, the claimant, whom for reasons which will become immediately apparent I do not propose to name, seeks judicial review of a decision made by the Chief Constable of the West Midlands Police (the Chief Constable) to provide to a potential employer of the claimant, information contained in the "Other Relevant Information” section of an Enhanced Criminal Record Certificate (ECRC) relating to the claimant dated 3 March 2003, and issued pursuant to section 115 of the Police Act 1997 (the 1997 Act). 
2.	The decision was actually taken by the Deputy Chief Constable, and at one stage the claimant took the point that the Chief Constable did not have the power to delegate the making of decisions under section 115 of the 1997 Act to anybody else, including his Deputy.  That point, however, is no longer pursued, and it is accepted by the claimant that the Deputy Chief Constable had the authority to make the decision. As the proceedings are brought against the Chief Constable, I propose to refer throughout to the Chief Constable as the decision maker, except where the context plainly requires a decision of the Deputy Chief Constable.
3.	The claimant is a social worker with no criminal convictions. As set out in the ECRC, the “Other Relevant Information” against the disclosure of which objection is taken, is the following: -

It is alleged that on the 11 December 2001 (the claimant) indecently exposed himself to a female petrol station attendant. It is further alleged that this was repeated on the 7 May 2002. (The claimant) was arrested and interviewed whereby he stated that he did not think he had committed the offence but that he was suffering from stress and anxiety at the time. (The claimant), who was employed by a Child Care company at the time of the alleged offences, was charged with two counts of indecent exposure, however the alleged victim failed to identify the suspect during a covert identification parade, and the case was subsequently discontinued.
4.	Relief was initially sought by the claimant against both the Chief Constable and the Secretary of State for the Home Department. However, on 3 July 2003, Owen J, whilst granting permission to apply for judicial review against the Chief Constable, refused it as against the Secretary of State on the ground that no decision of either the Criminal Records Bureau (CRB) or the Secretary of State had been challenged, and no relief was sought against either. The Secretary of State was, however, given permission to file evidence and to make representations at the hearing, an opportunity of which, in the event, he did not avail himself.
5.	 The challenge to the ECRC is on three grounds, namely that: -
(1)	the substantive criteria which have to be satisfied for the disclosure by the Chief Constable to be lawful under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) and under the common law were not met;
(2)	the decision to disclose the information by the Chief Constable was procedurally unfair under both the common law and Article 8 of the Convention and not “in accordance with the law” as required by the latter; and 
(3)	the Chief Constable had unlawfully departed from the Association of Chief Police Officers’ (ACPO) Code of Practice for Data Protection in relation to information held concerning the claimant.
6.	The relief sought by the claimant is in the following terms: -
1.	A declaration that the information contained in the ECRC issued on 3 March 2003 in relation to the claimant was unlawfully provided by the Chief Constable; 
2.	An order that the Chief Constable do not, in the future, provide the information relating to the indecent exposure allegations currently contained in the ECRC to the CRB pursuant to sections 115(7) and 119(2) of the 1997 Act; 
3.	A declaration that the Certificate was unlawfully issued by the CRB;
4.	An order that the CRB remove from the Certificate the details, currently contained in it, of the indecent exposure allegations made against the claimant;
5.	Costs.
The concept of the Enhanced Criminal Record Certificate
7.	ECRCs were created by Part V of the 1997 Act, which deals with criminal conviction certificates and criminal record certificates. Although the purpose for which ECRCs are to be provided is clear, the statutory language, which creates them, is not immediately transparent.  
8.	In broad terms, Part V of the Act of 1997 creates a statutory scheme for access by prospective employers to the criminal records of, and (in certain prescribed circumstances) other information held by the police relating to, potential employees. Under section 112(2) and (3), a criminal conviction certificate (which is issued to the prospective employee) is a certificate which gives prescribed details of every unspent conviction recorded against the individual, or states that there is no such conviction.
9.	A criminal record certificate under section 113 of the Act of 1997 includes cautions and spent convictions under the Rehabilitation of Offenders Act 1974. This is provided on application by the prospective employee, although, under section 113(2) the application must be accompanied by a statement from the prospective employer that the certificate is required for the purposes of an “exempted question”.  By section 113(5) an “exempted question” is defined as:
…. A question in relation to which section 4(2)(a) or (b) and section 4(4) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) has been excluded by order of the Secretary of state under section 4(4)
10.	Section 115 of the 1997 Act creates ECRCs. As with criminal record certificates, section 115(1) places a mandatory duty on the Secretary of State for the Home Department (a function delegated to the CRB) to issue an ECRC to any prospective employee who makes an application “in the prescribed form countersigned by a registered person” and pays the appropriate fee. Section 115(2) similarly requires the application to be accompanied by a statement from the prospective employer that the ECRC is required “for the purposes of an exempted question” asked –
(a)	in the course of considering the applicant’s suitability for a position (whether paid or unpaid) within subsection (3) or (4), or
(b)	for a purpose relating to any of the matters listed in subsection (5).
11.	A “position” is within section 115(3) of the 1997 Act  “if it involves regularly caring for, training, supervising or being in sole charge of persons under 18”, and within section 115(4) if it is of a kind specified in regulations made by the Secretary of State and involves regularly caring for, training, supervising or being in sole charge of persons aged 18 or over.
12.	The term “exempted question” is defined by section 113(5) of the 1997 Act as “a question in relation to which section 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) has been excluded by an order of the Secretary of State under section 4(4)”.  
13.	The matters listed in section 115(5) are not material for present purposes, but include certain activities under the Gaming Act, 1968, the Lotteries and Amusements Act 1976, the National Lottery Act 1993, and under the Children Act 1989, including child minding and day care and the placement of children with foster parents.
14.	The ECRC itself is defined in section 115(6) of the 1997 Act as a certificate which: -
(a) gives –
(i) the prescribed details of every relevant matter relating to the applicant which is recorded in central records, and 
(ii) any information provided in accordance with subsection (7), or 
(b) states that there is no such matter or information. 
15.	Section 115(7) of the 1997 Act is at the heart of the present application. It provides that: -
(7)	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. 
16.	Section 115(8), which does not apply in the instant case, goes further than section 115(7). It provides that:
(8)	The Secretary of State shall also 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 not to be included in the certificate, in the interests of the prevention or detection of crime; and 
(c)	can, without harming those interests, be disclosed to the registered person.
17.	In other words, where an ECRC is issued under section 115(7), the relevant information will be on the ECRC itself, and will be seen both by the prospective employee and the prospective employer. Under section 115(8) the information will be conveyed separately to the prospective employer, and will not be set out on the face of the ECRC itself. It will thus not be seen by the person who is the subject of the certificate.  
18.	Section 115(9) of the 1997 Act imposes a mandatory duty on the CRB to send to the registered person who countersigned the application (for present purposes, once again, the claimant’s prospective employer) a copy of the ECRC and any information provided in accordance with section 115(8) of the 1997 Act.  By section 119(2), where the chief officer of a police force receives a request under section 115 of the 1997 Act, he is required to comply with it as soon as practicable. 
The Guidance Notes for Forces issued by the CRB 
19.	The purpose of ECRCs under the 1997 Act is explained in the Guidance Notes for Forces (the Guidance Notes) issued by the CRB in the following terms: -
1.4	The  (ECRC) will include details of all convictions and cautions, held at National level including convictions “spent” under the Rehabilitation of Offenders Act 1974 and   including relevant non-conviction information from local police records. For those working with children or vulnerable adults, the Enhanced Disclosure will also include information sourced from the Department of Health and the Department for Education and Skills… 
2.1	Subject to authentication of an applicant’s identity and current address, the CRB will issue an (ECRC) in response to any properly submitted application.  An ECRC will contain conviction data where applicable and may also contain any non-conviction information from local police records, which might be relevant. The tests of the relevance of information remains the judgment of individual chief officers. The police may opt to disclose relevant non-conviction information to the Registered Body only, in the interests of the prevention or detection of crime. This will be done by means of a separate letter to the CRB. The accuracy and relevance of the data released though, rests solely with the Police Service and the CRB will not undertake any editing function.
20.	The Guidance Notes give only limited assistance as to the manner in which individual chief officers are to exercise the test of relevance identified in paragraph 2.1 above, and contained in section 115(7)(a) and 115(8)(a) of the 1997 Act.  The Guidance Notes   are at pains to emphasis that information supplied by the police to the CRB should be based on fact and capable of proof if presented in evidence. The importance of presenting information in a neutral fashion is also stressed.  However, paragraph 3.4.1. appears somewhat to downplay the importance of the exercise. It states that: -
Forces are merely supplying information via the CRB to prospective employers – it is the employers’ responsibility to decide the application’s suitability for a specific role. 
21.	The Guidance Notes cross-refer to the ACPO Data Protection and Audit Manual and the ACPO Code of Practice on Data Protection. Reference is made to the concepts of proportionality and relevance under the Human Rights Act 1998 and Data Protection principles. The Guidance Notes suggest that if the Police National Computer (PNC) record already shows a history of similar convictions, police forces should consider whether the release of non-conviction data would present a fuller picture, and suggests that: -
…. if the intelligence held does not add anything further, then the disclosure of non-conviction data could be deemed unnecessary.    
22.	The Guidance Notes conclude by emphasising both the sensitivity of the task facing chief officers and the need to treat each case on its particular facts: -

The dilemma of whether or not to release information illustrates that disclosure is an area of fine judgments. In many areas of this guidance it is not possible to be as prescriptive and exact as the Service would want. It is crucial for the effective operation of the disclosure process that the individual and often unique ingredients of each case are taken into consideration. Hard and fast rules in certain areas of the disclosure process could be both restrictive and counterproductive in frustrating the perpetrators of offences against the vulnerable. It is essential that Forces retain the flexibility to articulate a response, which takes account of the unique characteristics of each case. Further, Forces should have a clear and transparent decision making process – capable of withstanding scrutiny.
23.	Whilst I do not underestimate the difficulty of providing clear guidelines in an area where judgments are manifestly dependent on the facts of the individual case, it seems to me that there are some approaches, which can be universally applied. Although there are references in the Notes for Guidance to the Human Rights Act 1998 there is no specific reference to Article 8, and in particular to Article 8(2). The Notes for Guidance make no reference to the duty to act fairly towards the person information about whom is being disclosed, and there is no discussion about the appropriateness of permitting the subjects of the ECRC an opportunity of commenting on the information which it is proposed to include about them. 
The facts
24.	These are not in dispute, but need to be set out in a little detail. The claimant is aged 44. He is Afro-Caribbean.  He obtained a diploma is social work in about 1990, and thereafter was employed as a social worker until 9 July 2002, when he was dismissed by the agency which employed him.  He is a man of good character; as I have already stated, there are no criminal convictions recorded against him. 
25.	On 16 May 2002 the claimant was interviewed by the police and then charged in relation to two alleged incidents of indecent exposure, which had occurred in the early hours of the morning on 12 December 2001 and on 7 May 2002 at a local garage.   The complainant, Ms R, was the cashier at the garage, and on each occasion Ms. R was on duty on her own.
26.	On the first occasion, Ms. R says she saw a man whom she identified as a regular customer pass by the newspaper rack, which was directly under the window next to the counter. At that point she could only see his head and shoulders.   For obvious security reasons, the door to the garage shop within which Ms R was situated was locked, and customers were served through a hatch.  The man appeared to be on foot, and had not driven a car onto the garage forecourt. 
27.	Ms R says she recognised the man because he had been in the night before and had purchased a Mars bar and a bottle of water. She says that because he was a regular customer, she pressed the button behind the counter, which unlocked the door of the shop in order to let him in.  She says that as soon as he entered the shop she saw that he was naked from the waist down. His genitals were plainly visible, although he did not have an erection.   She says he purchased a Mars bar with a £10 note and said to Ms R: “I’ll be back later to rape you”.  After standing by the door and opening and closing it several times, the man asked Ms R the time. She told him it was 2.50am.  He then walked out of the shop and left the garage on foot. Ms R does not appear herself to have telephoned the police, but says she later mentioned the matter to her manager. 
28.	Ms R says the shop was well lit. She was plainly able to have a clear view of the man, whom she identified as a regular customer.  She gives a description of him in which, among other details describes him as about 36 years of age, 5 feet 8 inches in height, black, but not very dark skinned, more of a mixed race appearance. 
29.	Ms R says that the same man came to the garage in the early hours of 27 February 2002, 27 March 2002, and 10 and 24 April 2002. On each of these occasions he was driving a car, the make and number of which Ms R noted (the car).  On the first occasion the man made as if to draw petrol, but did not do so: on the remaining occasions he did draw petrol; he then paid for his purchases normally and left the garage without incident. On each of the last three occasion he paid through the hatch; on all four occasions the man was normally dressed, and apart from taking out the pump but not drawing petrol on the first occasion, behaved normally.
30.	Although Ms R noted the number and make of the car on 27 February, she does not appear to have informed the police at that stage. 
31.	At about 3.15am on 7 May 2002, Ms R says she heard somebody tapping on the window of the shop. She says it was the same man, who was naked from the waist up, and said he wanted to buy a Mars bar.  He then began to walk backwards, and Ms R saw that he was completely naked. She refused to serve him: he pointed his finger at her and said: “I’ll fucking sort you out”.  He then turned round and walked off.  Once again, there was no car on the forecourt, and the man appeared to have arrived on foot. 
32.	Ms R made a statement to the police, which is dated 9 May 2002, which she supplemented on 8 June 2002.  At the conclusion of the latter statement she said: -
I can say 100% that it is the same man that drove (the car). I would recognise him anywhere and this was confirmed during the second incident. There is no doubt in my mind that it is him.
	In the light of subsequent events, these three sentences are, in my judgment, significant. 
33.	The car, which Ms. R had observed on the garage forecourt, was traced by the police to the claimant’s employers, who had hired it for his use. There was no suggestion that anybody but the claimant had been driving the car at the relevant time. 
The claimant’s police interview on 16 May 2002 
34.	As will be apparent from the content of the disclosure set out at paragraph 3 above reliance was placed by the Chief Constable on the claimant’s police interview. The claimant declined the opportunity to obtain legal advice prior to being interviewed, and did not want a solicitor to be present during the interview itself. He was interviewed by two women police officers. At no time did he make any admissions, and at other times he specifically denied that he was the man who had exposed himself to Ms R.
35.	The main point, which appears to have persuaded the interviewing officers that the claimant was the man who had exposed himself to Ms R, was his initial reluctance categorically to deny that he was the man.  He said he could not remember the incidents put to him, and that he did not think it was him.  One of the officers said in terms during the interview that she thought the claimant needed help, that it was the claimant who exposed himself and that he was not telling the whole truth.   
36.	No criticism is made of the interview, and it is always difficult, when reading a transcript, to get the full flavour of it. It was plainly a robust interview, and the officers’ scepticism about the claimant’s answers emerges very clearly. However, I feel bound to say that in my judgment, a fair and objective reading of it does not warrant the reliance placed on it. 
37.	Firstly, although it was by his own choice, the claimant did not have a solicitor’s advice before and during the interview. Judging by his statements in these proceedings, which contain a forthright denial of any form of involvement, the interview might well have taken a different course had the claimant received such advice or had his solicitor been present.
38.	Secondly, however, although criticism is made of the claimant’s apparent lack of memory, and the improbability of his being unable to remember walking around naked, the interview is largely conducted by the officers by means of asking him whether or not he remembered relevant events and dates.  When Ms R’s version of the first alleged indecent exposure is put to him, he is asked “Do you remember anything about that incident?” and he answers: “Not really. I cannot remember that”. One of the officers then continues: -
Q	…. I think I would remember if I went into a petrol station and I had nothing else underneath, I think I would remember that, it would stick out in my mind.
A	Well, I cannot remember that.
Q	Is it possible that you’ve done it?
A	I don’t think so. 
Q	Right, you see it does not make sense to me because I’d know for a fact it I had done something like that
39.	Any question about any incident which begins with the words: “do you remember doing x?”  contains within it the implication that the person questioned has something to remember, and was, accordingly, the person who committed the act about which he or she is being questioned. In my judgment it is unsafe then to treat the answer “no” or “I can’t remember” as incredible and to give it the same implication. As Mr. Squires points out, there are four occasions in the interview where the claimant categorically denies that he was the man who exposed himself to Ms R.  If  (a) Ms R’s version of the events been put to him; (b) had the claimant been asked: “was that you?” and (c) had the claimant then said: “I can’t remember” or “I don’t think so” the passages in the interview might, I think, have had more force. 
40.	There is much in similar vein to the exchange I have set out in paragraph 38 above. As I have already stated, later in the interview the claimant denies in terms that he swore or was violent, or that he had threatened anybody. At this point he also denies in terms that he had gone into the garage naked at any time. He also makes the perfectly sensible point that since this was a garage, which he acknowledged he went to regularly, and since he could be traced by his car, why would he then go back naked and on foot? The questioning officer accepts that she cannot explain why somebody would go in naked and then go back as a normal customer. 
41.	Having now read the interview several times, I have come to the clear view that the summary of it in the in the “Other Relevant Information” section of the ECRC is partial, and carries with it an implication that the claimant was guilty, or at the very least the author of the summary believed him to be guilty.   For reasons, which I will develop in due course, I agree with Mr. Squires that it would be wrong to place weight on the interview as reliable evidence tending towards the guilt of the claimant. In my judgment it is, putting the matter at the highest from the police perspective, neutral.
Events after the police interview   
42.	On 9 July 2002 the claimant was dismissed from his employment .The reasons for his dismissal are currently the subject of proceedings instituted by the claimant in the Employment Tribunal which have not yet been determined. 
43.	In the interview, the claimant agreed to take part in an identification parade. Parades were arranged for the 16 August and 12 September 2002, but each time they could not proceed due to a lack of suitable participants. The claimant also agreed to take part in two other forms of identification testing, but these also could not be conducted due to the witness not being present or a lack of participants.
44.	No identification parade was ultimately held before the claimant’s trial, which was due to commence in the Magistrates’ Court on 25 September 2002. Immediately prior to the hearing, however, it appears that the police conducted a covert identification in court and asked Ms R to identify the perpetrator. She picked out someone who was not the claimant. Thereupon the Crown Prosecution Service offered no evidence against the claimant and the claimant was acquitted.  
45.	The person whom Ms R identified as the perpetrator was pointed out to the claimant by his solicitors. According to the claimant, the man identified was considerably lighter skinned than the claimant. He was perhaps of middle-eastern origin, while the claimant is Afro-Caribbean. He was also considerably shorter than the claimant (who is 6 feet tall) and did not resemble him in appearance.
46.	When he was charged, the claimant was told he would receive a copy of the CCTV from the petrol station taken at the time of the alleged incident. This was not received, and the matter was pursued by the claimant through his solicitors. He was subsequently told that the footage had been displaced or lost during the course of the case. It thus remains unclear what, if any, information the CCTV footage contained. 
The making of the ECRC
47.	Following his dismissal from his employment as a social worker on 9 July 2002, the claimant applied for another social work position to a different social work agency. That agency sought information from the CRB about the claimant, and on 14 February 2003 the Head of the West Midlands Police Central Information Unit, Ms S, received an electronically transmitted request from the CRB to supply any “approved information” about the claimant.  She instructed researchers to carry out standard checks of the local, designated, force computer systems.  
48.	The result, Ms. S says, was information relating to an offence of indecent exposure, which included an alleged threat to rape, Ms S took the view that this clearly required further investigation, and sent for the crime file.  She recites the facts she obtained from the file, noting that the record of the claimant’s interview stated that: -
He states that he cannot recall doing what has been alleged. He is asked if it is possible that he had done it and he states that he does not think so. (The claimant) is asked if there is any reason why he would not remember doing it and (the claimant) states that he cannot remember doing it and (he) would not remember doing it because he was suffering from stress and anxiety at this time and he went to see his doctor.
49.	The claimant complains that this is also a misrepresentation of the interview. In relation to the final sentence of the extract cited in paragraphs 48, he cites what he is recorded as actually saying in the interview, which was: -
I cannot remember doing that, I mean I was under a bit of stress at that time, I had been to my doctor around that time you know
50.	Ms S refers to “aborted identification parades following objections from the claimant through his legal representative” and to the fact that it was nearly four months after she last saw the claimant that Ms R was asked to identify him.  She also makes reference to a previous incident in June 2001 when the claimant had been arrested following complaints by several teenage girls that a man had been running around naked in public. The claimant had been found in a clothed state by the police: the girls’ evidence had been inconsistent, and no further action had been taken.
51.	Ms S then describes the exercise through which she went in preparing her advice for the Deputy Chief Constable about the disclosure or relevant information in the ECRC. She says she balanced the claimant’s rights under Article 8 of the Convention with any potential risks posed to those with whom the claimant may have had contact in the course of his new employment. She points out (as I have already found) that there is no guidance on what “might be relevant” under section 115(7) of the 1997 Act. However, in order to undertake the balancing exercise, she carried out what she describes as “a risk assessment and a relevance test”. The mental check list of factors she applied were as follows: -
(a)	the timeliness of any previous event to this disclosure
(b)	the seriousness of the event;
(c)	the source and reliability of the non-conviction information held on the local system; 
(d)	the age and details known about any victims;
(e)	if proceedings were instigated, why they were not continued;
(f)	does the information add anything to the PNC information already provided?
(g)	the actions of the applicant since the event;
(h)	the retention of Part V material on local systems and weeding procedures;
(i)	the likely impact on the applicant if this information was disclosed;
(j)	the potential impact on any vulnerable group if this information was not disclosed.
52.	As to relevance, Ms S says she “restricted information to that which had a direct bearing on the potential risk posed by the claimant to the safety of children and vulnerable adults”. She eliminated information of a more general nature and says she would never disclose any information that was not already known to the claimant. 
53.	Having applied her risk assessment and relevance test to the claimant’s case, Ms S then sent a memorandum of the Deputy Chief Constable, in a standard format, requesting his approval to disclose the information stated in the memorandum. She adds that she did not include details of the earlier arrest of the claimant on 24 June 2001 (see paragraph 50 above) but that this clearly featured in her decision-making “when the disclosure relating to the offences between 11 December 2001 and 7 May 2002 was made”.
54.	I do not wish to be critical of Ms S. She was plainly doing her best in difficult circumstances and without the benefit of any proper guidelines. The factors, which she identifies, seem to me to a creditable attempt to identify relevant considerations to be taken into account.  It is, however, in my judgment, unfortunate, that Ms S’s affidavit does not explain how she balanced the various factors she identifies; nor does it give her reasons for reaching her conclusion that the non-conviction material should be disclosed. It is equally significant, in my view; she does not appear to have given the Deputy Chief Constable any reasons for the decision she had reached. All her memorandum to the Deputy Chief Constable does is to present him with the information in the form in which it ultimately appeared on the ECRC, and to ask him to approve its disclosure. 
55.	The Deputy Chief Constable received the memorandum and the accompanying file of papers, which he read.  He records that he was required to balance the claimant’s Article 8 rights against any potential risks posed to those with whom the claimant may have future contact. He approved the disclosure in the identical terms put forward by Ms S.  His reasons for making the disclosure are stated as follows: -
This decision was based on the fact that the information was relatively recent, it involved an allegation of threats to rape, there had been sufficient evidence to charge and the complainant was believed to be reliable and credible. I noted the duration of time that had elapsed between the last sighting of this suspect by the complainant and the unsuccessful covert identification procedure that led to the discontinuance of the case by the CPS. Before arriving at my final decision I weighed the likely impact on the claimant if this information was disclosed, against the potential impact on any vulnerable group if this information was not disclosed.
The claimant’s first ground: namely that the substantive criteria which have to be satisfied for the disclosure by the Chief Constable to be lawful under Article 8 of the Convention and under the common law are not met.
56.	Consideration of this ground involves an examination of the law on disclosure to third parties of confidential and sensitive information There are no cases on section 115 of the Police Act 1997. No doubt that is in part due to the fact that section 115 only came into force in March 2002, and that according to a document issued by the Code of Practice Officer in the CRB Policy Section only 3 of every 1,000 enhanced disclosures contain “approved” information.  
57.	It was common ground between counsel in the instant case that Article 8 of the Convention is engaged on the facts of this case.  Article 8 is very familiar, and I need not set it out. It follows that the disclosure by the Chief Constable in the instant case, if it is to represent a justified interference with the claimant’s right to respect for his private life, must be “in accordance with the law” and “necessary in a democratic society” for the fulfilment of one or more of the public interests identified within Article 8(2). 
58.	In addition, Mr. Dan Squires, for the claimant, submitted, and Ms Fiona Barton, for the Chief Constable, accepted; (1) that the phrase  “necessary in a democratic society.”  means that any Article 8(2) interference requires the justification of a “pressing social need” (the phrase used by the European Court of Human Rights (ECHR) in Sunday Times v United Kingdom (1980) 2 EHRR 245 at 275, paragraph 59); and (2) that there must be a relationship of “proportionality” between the need and the means used to pursue it. 
59.	Mr. Squires further relied on R v Home Secretary ex parte Daly [2001] 2AC 532, at 547 for the uncontentious propositions (1) that for interference to be proportionate, the measures designed to meet the need must be rationally connected to it and be no more than necessary to accomplish their objectives; and (2) that in conducting a proportionality review under the Convention the court’s role is no longer merely supervisory and confined to applying the Wednesbury test, but requires more intense scrutiny of a public authority’s decision.
60.	Further in relation to the phrase in “accordance with the law” in Article 8(2), Mr. Squires argued that the decision to disclose must be taken within a legal framework which is sufficiently precise and specifies the conditions under which a disclosure will occur: see Herczegfalvy v Austria (1993) 15 EHHR 437 at paragraphs 89 and 91. He also relied on the fact that the ECHR had held that the operative legal framework must be capable of preventing a power being exercised, “arbitrarily and selectively and [in a manner that is] scarcely foreseeable, and [is] not attended by basic procedural guarantees”: see Hentrich v France (1994) 18 EHHR 440 at paragraphs 42. In this regard, he argued that the Convention imported similar notions of fairness and protection against arbitrariness into a decision making process as are required under the common law. None of this was, as I understood it, contentious.
61.	Mr. Squires pointed out that the legality of disclosure by public authorities of allegations of sexual misconduct has been considered by the domestic courts both before and after the Human Rights Act 1998 came into force. The courts had set out various procedural and substantive conditions that must be met for disclosure to be lawful. He relied in particular on two cases: R v Chief Constable of the North Wales Police ex parte Thorpe [1996] QB 396 (ex parte Thorpe) and R v A Local Authority in the Midlands ex parte LM [2000] 1 FLR 612 (ex parte LM) to which I will turn in due course.
62.	It was at this point, however, that Mr. Squires and Ms Barton parted company on the law.  Ms Barton argued that the issue of an ECRC was governed by the provisions of Part V of the 1997 Act, and not by common law principles.  Whilst Article 8 was plainly engaged, she submitted that the dicta in both ex parte Thorpe and ex parte LM on which Mr. Squires relied, were distinguishable in the instant case because in neither of those cases was the Court considering the exercise of the positive duty to provide information for the purposes of an ECRC under the 1997 Act. 
63.	Miss Barton developed her argument by submitting in particular that:
(a)	the existence of the duty to provide information for ECRCs displaced the general presumption at common law that information should not be disclosed;
(b)	Part V of the Police Act 1997 provides specific public 	justification for disclosure;
(c)	there was no requirement for consultation with other relevant agencies; and 
(d)	there was no requirement for the subject of the disclosure to be permitted to make representations. 
64.	Ms Barton accepted, however, that the discretion of the Chief Constable must not be exercised arbitrarily.  She further accepted that the substantive criteria for lawful disclosure were as set out by Dyson J (as he then was) in ex parte LM [2000] 1 FLR 612 at pages 622-623. These were, she argued: -
(a)	The level of certainty on the part of the public authority that the allegations it is disclosing are true. The greater the conviction that the allegation is true the more pressing the need for disclosure;
(b)	The interest of the third party in receiving the information. The more intense the legitimacy of the interest in the third party having the information the more pressing the need to disclose is likely to be; and
(c)	The degree of risk posed by the person if disclosure is not made
65.	Essentially, Ms Barton submitted, the decision to disclose was an exercise in which the Chief Constable was required to balance the need to protect children against the right of an individual to privacy. Her case, in a nutshell, was that the Chief Constable in approving disclosure, had applied those criteria. He had thus acted both fairly, and in accordance with the law. 

Do the terms of section 115 exclude the operation of the common law?
66.	Miss Barton is plainly right in her submission that none of the decided cases on disclosure relate to section 115 of the 1997 Act, where, as provided by section 119, the Chief Constable is placed under an obligation to comply with a request for disclosure as soon as practicable, and where the only statutory criteria for the provision of the information are the broadly expressed  “might be relevant” and “ought to be included” tests in section 115(7) which are both themselves in turn matters left by Parliament to be governed by the Chief Constable’s opinion. 
67.	However, it does not follow, in my judgment, that the very broad powers conferred by the 1997 Act exist in a vacuum, or that the approach to disclosure set out in Ex parte Thorpe and Ex parte LM does not apply. In this context, it seems to me that   the statement of principle contained in the speech of Lord Browne-Wilkinson in Pierson v Secretary of State for the Home Department [1998] AC 539 at 573, cited in the judgment of Dyson LJ in M v Secretary of State for Education and another [2001] 2 FCR 11 at 30 applies:
I consider first whether there is any principle of construction, which requires the court, in certain cases, to construe general words contained in the statute as being impliedly limited. In my judgment there is such a principle. It is well established that Parliament does not legislate in a vacuum: statutes are drafted on the basis that the ordinary rules and principles of the common law will apply to the express statutory provisions: see Cross on Statutory Interpretation, 3rd ed. (1995), pp. 165-166; Bennion, Statutory Interpretation, 2nd ed. (1992), p. 727 and Maxwell on Interpretation of Statutes, 12th ed. (1969), p. 116. As a result, Parliament is presumed not to have intended to change the common law unless it has clearly indicated such intention either expressly or by necessary implication: Cross on Statutory Interpretation, p. 166; Bennion, Statutory Interpretation, p. 718 and Maxwell on Interpretation of Statutes, p. 116. This presumption has been applied in many different fields including the construction of statutory provisions conferring wide powers on the executive. Where wide powers of decision-making are conferred by statute, it is presumed that Parliament implicitly requires the decision to be made in accordance with the rules of natural justice: Bennion on Statutory Interpretation, p. 737. However widely the power is expressed in the statute, it does not authorise that power to be exercised otherwise than in accordance with fair procedures. 

68.	In my judgment, there is nothing in the language of section 115(7) of the Act of 1997 or in the duty imposed by section 119(2) on the Chief Constable to comply with a request from the Secretary of State, which demonstrates an intention by Parliament to disapply the rules of natural justice or procedural fairness.
The decided cases on disclosure
69.	I therefore propose to look at a number of the authorities on disclosure. There are, of course, many reported cases in the Family Division in which the question which has arisen has usually been the disclosure to the police either of documents rendered confidential to the Family Proceedings by Family Proceedings Rule 1991 rule 4.23, or of evidence given in private in wardship and, since 1991 in care proceedings under Part IV the Children Act 1989. In this area, the leading case is the decision of the Court of Appeal in Re C (a minor) (care proceedings: Disclosure) [1996] 2 FLR 725. 
70.	I respectfully agree, however, with an observation of Kennedy LJ in Woolgar v Chief Constable of the Sussex Police and another [1999] 3 All ER 604 at 614 that in the present context little assistance can be derived from the Family cases. Whilst they all involve a balancing exercise, many of the factors involved in that exercise (for example the importance of encouraging frankness in children’s cases) simply do not apply in cases such as the present.  Equally, a case such as Re L and Re V (minors) (sexual abuse: disclosure [1999] 1 WLR 299, concerned the duty which sections 17 and 47 of the Children Act 1989 impose on local authorities to inform other local authorities of those found guilty of sexual abuse in Care or other Family Proceedings.  The Children Act is not in play in the instant case. 
71.	I start, therefore, with ex parte Thorpe. In that case, two convicted paedophiles sought declarations that the decision of the police to inform the owner of a caravan site in which they were residing of their convictions was unlawful. They failed both in the Divisional Court and in the Court of Appeal. In the Divisional Court, the Secretary of State submitted that any policy adopted by the police to guide its conduct when problems of this sort arose should observe three important principles.  These were: -
(1) There is a general presumption that information should not be disclosed, such a presumption being based on a recognition of (a) the potentially serious effect on the ability of the convicted people to live a normal life; (b) the risk of violence to such people; and (c) the risk that disclosure might drive them underground. (2) There is a strong public interest in ensuring that police are able to disclose information about offenders where that is necessary for the prevention or detection of crime, or for the protection of young or other vulnerable people. (3) Each case should be considered carefully on its particular facts, assessing the risk posed by the individual offender; the vulnerability of those who may be at risk; and the impact of disclosure on the offender. In making such assessment, the police should normally consult other relevant agencies (such as social services and the probation service). 

72.	The Divisional Court agreed with these principles. Lord Bingham LCJ (as he then was) accepted the first of these principles as “an important and necessary principle underlying such a policy.” He added: -
When, in the course of performing its public duties, a public body (such as a police force) comes into possession of information relating to a member of the public, being information not generally available and potentially damaging to that member of the public if disclosed, the body ought not to disclose such information save for the purpose of and to the extent necessary for performance of its public duty or enabling some other public body to perform its public duty.
73.	It was, however, plain that the general rule against disclosure was not absolute. The police had a job to do. After citations from the speech of Viscount Cave LC in Glasbrook Brothers Ltd v Glamorgan County Council [1925] AC 270, 277 and from Lord Parker LCJ in Rice v Connolly [1966] 2 QB 414, 419, Lord Bingham added: 
It seems to me to follow that if the police, having obtained information about an individual which it would be damaging to that individual to disclose, and which should not be disclosed without some public justification, consider in the exercise of a careful and bona fide judgment that it is desirable or necessary in the public interest to make disclosure, whether for the purpose of preventing crime or alerting members of the public to an apprehended danger, it is proper for them to make such limited disclosure as is judged necessary to achieve that purpose. 

I regard the third principle set out above also as being necessary and important. It would plainly be objectionable if a police force were to adopt a blanket policy of disseminating information about previous offenders regardless of the facts of the individual case or the nature of the previous offending or the risk of further offending. While it is permissible for a public body to formulate rules governing its general approach to the exercise of a discretion (see British Oxygen Company Ltd. v. Board of Trade [1971] AC 610), it is essential that such rules should be sufficiently flexible 
74.	In the Court of Appeal the Secretary of State’s submission were likewise successful. Giving the judgment of the Court, Lord Woolf MR, as he then was, said (at [1999] QB 396 at 427): -
On behalf of the Home Secretary, Mr. Eadie advanced careful and well-balanced submissions as to how the duty (which he accepted existed) to act fairly should be exercised. He agreed that there are cases where it would be desirable, so as to ensure as far as possible that the police are acting on accurate information and so as to ensure the necessary degree of fairness, to afford individuals in the position of the applicants some opportunity to comment. However whether such an opportunity should be afforded and the form that it should take depends on the particular circumstances of a particular former offender. In determining what should be done the overriding priority must remain to protect the public, particularly children and other vulnerable people. The time scale involved may make it not possible to afford an opportunity to comment. The information in the police's hands may be of a category, which means that it is unlikely that the subject could be expected to add anything of value. The information available to the police may be information upon which the subject has already had an opportunity to comment. The information may be of a nature, which means it would be undesirable for it to be disclosed because of its confidentiality or sensitivity or on the grounds of public interest immunity. There is no formal procedure with which the police should be required to comply. The police should be allowed to act in a sensible pragmatic way. It should be remembered that they have to rely upon the advice of experts and they should not be required to test opinions, which they have received from experts. 

Our conclusions 
We had no difficulty in endorsing Mr. Eadie's general approach. Each case must be judged on its own facts. However, in doing this, it must be remembered that the decision to which the police have to come as to whether or not to disclose the identity of paedophiles to members of the public, is a highly sensitive one. Disclosure should only be made when there is a pressing need for that disclosure. Before reaching their decision as to whether to disclose the police require as much information as can reasonably practicably be obtained in the circumstances. In the majority of the situations, which can be anticipated, it will be obvious that the subject of the possible disclosure will often be in the best position to provide information, which will be valuable when assessing the risk. 
75.	Ex parte Thorpe was, of course, a case in which the applicants had been convicted of serious criminal offences. Those convictions were a matter of public record. It follows, in my judgment, that the principles relating to disclosure need to be applied all the more stringently (a) when one is dealing with information about a person who has not been either convicted of a criminal offence or found on the balance of probabilities to have to have committed an act of indecency by a judge in civil proceedings; and (b) where the identify of the person who is alleged to have committed the act details of which it is intended to disclose is in issue. 
76.	The second case is Re LM.  LM owned a bus company, which had a contract with the local education department to transport school children. The contract was terminated because the police and the social services department of the local authority disclosed to the education department details of two allegations of sexual offences against children (one against his own daughter) neither of which had resulted in a prosecution or any civil finding of guilt. The first in time had occurred some 10 years previously and related to a period when LM was employed by social services in a hostel caring for vulnerable children.  A boy of about 11 alleged that LM had “lain on top of me in his underpants”. The allegation had been investigated by LM’s line manager, Mrs. G in 1996 (no reason is given for the delay). She could not recall LM’s explanation; but whatever it was, there was no corroboration of the allegation and no action was taken. 
77.	The second allegation was some seven years old and related to LM’s daughter, and then aged 4. It arose in acrimonious divorce proceedings between LM and his wife. LM denied the allegation. Once again, there was no corroboration, although the police searched LM’s house where they discovered some soft pornographic photographs. The name of the family had been placed on the Child Protection Register, but no other action had been taken. 
78.	LM suffered some persecution as a result the termination of the contract, almost certainly due to rumours as to why it had occurred. His company then entered into another contract with a different local authority for the provision of school bus services and LM sought assurances from the police and social services that the allegations would not again be disclosed. Those assurances were refused, and LM applied for judicial review.
79.	 Finding that such a disclosure would be unlawful, Dyson J stated:
In my view, the guiding principles for the exercise of the power to disclose in the present case are those enunciated in R v Chief Constable of North Wales Police ex parte Thorpe. Each of the Respondent authorities had to consider the case on its own facts. A blanket approach was impermissible. Having regard to the sensitivity of the issues raised by the allegations of sexual impropriety made against LM, disclosure should only be made if there is a "pressing need". Disclosure should be the exception, and not the rule. That is because the consequences of disclosure of such information for the subject of the allegations can be very damaging indeed. The facts of this case show how disclosure can lead to loss of employment and social ostracism, if not worse. Disclosure should, therefore, only be made if there is a pressing need for it…

What was required of the police and the social services department in this case was that they examine the facts, and carry out the exercise of balancing the public interest in the need to protect children against the need to safeguard the right of an individual to a private life. How should the balancing exercise be carried out?  All relevant factors must be considered. It is not possible or desirable to attempt to provide an exhaustive list. It seems to me, however, that the following factors will usually have to be considered by the police and the local authority that is contemplating disclosure of allegations of child sexual abuse to a third party.

80.	The first factor, which Dyson J then identified, was the authority’s, own belief as to the truth of the allegation.  The greater the conviction that the allegation is true, he said, the more pressing the need for disclosure.  The second factor was the interest of the third party in obtaining the information. The more intense the legitimacy of the interest in the third party in having the information, the more pressing the need to disclose is likely to be.  The third factor was the degree of risk posed by the person if disclosure is not made. 
Discussion
81.	I fully accept that in the instant case, I am dealing with disclosure within a statutory framework. I have set out the structure of Part V of the 1997 Act earlier in this judgment. It is quite clear from that structure that in the circumstances defined, for example, in section 113 of the 1997 Act, the CRB, on the application of a prospective employee, is required to disclose to a prospective employer any cautions and criminal convictions recorded against the name of the prospective employee, including those which are spent.  There is no room here either for the exercise of any discretion on the part of the CRB, or the application of any common law principles. 
82.	It is equally plain, however, in my judgment that different considerations apply to section 115. Here, the respective statutory duties imposed on the CRB and the Chief Constable seem to me to be as follows:  (1) on the CRB to issue an ECRC to a prospective employee and employer; (2) on the CRB before issuing the ECRC to request the Chief Constable of every relevant police force to provide the information identified in section 115(7) and (8); and (3) on the Chief Constable to comply with any request from the CRB as soon as practicable. 
83.	The only guidance which the Statute gives the Chief Constable as to the information to be provided under section 115(7) in the ECRC is that, in the Chief Constable’s opinion; (1) it “might be relevant” to a consideration of the employee’s suitability for a post involving regularly caring for, training, supervising or being in sole charge of persons aged under 18; and (2) that it ought to be included in the certificate. 
84.	On its face, therefore, section 115(7) of the 1997 Act gives a very wide and apparently subjective discretion to the Chief Constable. For the reasons already given, however, and as explained in the speech of Lord Browne-Wilkinson in Pierson v Secretary of State for the Home Department cited in paragraph 67 of this judgment, section 115 of the Act of 1997 in my judgment, whilst defining the parameters of the Chief Constable’s discretion does not exclude the operation of common law principles as to its exercise.  

85.	As all the parties in the current proceedings accept (including the Deputy Chief Constable who authorised the provision of the information – see paragraph 55 above) the discretion must also be exercised in compliance with Article 8(2) of the Convention. Miss Barton further accepts the substantive criteria identified by Dyson J in Re LM apply. From there, it seems to me, it is only a very short step to an acceptance that the common law principles set out in Ex Parte Thorpe, adopted as they were by Dyson J in Re LM, also apply. Accordingly, I propose to apply the common law guidance contained in Ex parte Thorpe and Re LM although I accept that its application must, of course, reflect both the statutory provisions contained in section 115(7) of the 1997 and the facts of the instant case. 
86.	In applying that guidance to the facts of this case, however, I have two reservations. The first relates to Miss Barton’s submission that the existence of the duty to provide information for ECRCs displaces the general presumption at common law that information should not be disclosed. 
87.	In my judgment, this submission conflates the duty on the CRB to provide ECRCs to prospective employers and employees on request with the responsibility of the Chief Constable to consider the content of the individual certificate.  Clearly, where cautions and criminal convictions are concerned there is no issue. Parliament has laid down the circumstances in which these must be disclosed, and no question of discretion arises. But where the information does not relate to a criminal conviction, it seems to me, for the reasons I have already given, that different considerations apply. 
88.	The presumption against disclosure identified in ex parte Thorpe was, of course, as Lord Bingham made clear, unrelated to any specific statutory duty on the part of the police, and was based (inter alia) on the potentially serious effect on the ability of convicted paedophiles to live a normal life. 
89.	The two statutory tests for the provision of non-conviction information under section 115(7) are those set out in paragraph 83 above. Both tests, in my judgment, need to be stringently applied. The disclosure of information which (as here) has not been the subject of judicial adjudication, which is highly contentious and which, if disclosed is likely to render the claimant permanently unemployable in his chosen profession plainly requires what the ECHR described as “a pressing need” to make disclosure appropriate.
90.	I accept, of course, that the need to protect children and vulnerable adults from abuse by those employed to care for them is a pressing social need. However, the nature and extent of the need will depend on the facts of the individual case. It is, moreover, precisely because the stakes are so high that the balancing exercise required by Article 8 of the Convention and the application of the common law principles must be rigorously carried out.
91.	Having said that, however, I am very conscious of the fact that it is at least highly arguable that Miss Barton is right, and that the effect of section 115 of the 1997 Act is to displace the common law presumption against disclosure.  The purpose of the statute is clearly designed to meet the pressing social need identified in the previous paragraph. I therefore propose to approach the question of disclosure on the facts of the instant case on the basis that there is no presumption against disclosure under section 115, and that the circumstances identified in section 115 identify, in general terms, a pressing social need for disclosure. As will become apparent, however, this does not mean that disclosure of additional, non-conviction information under section 115 is automatic, or that it is not surrounded by the stringent conditions of natural justice and procedural fairness. 
92.	 My second reservation relates to Miss Barton’s submission (with which Mr. Squires agreed) that one of the factors, which the police would usually have to consider when contemplating disclosure, is its own belief in the truth of the allegations.  In the context of the exercise of the Chief Constable’s powers under section 115(7) of the Act, however, it seems to me that the application of this concept carries with it a risk that a presumption of guilt will be imported into the exercise which may, inappropriately, prevent proper and objective consideration being given to the information itself and thus vitiate the exercise. What, in my judgment, is required is that the Chief Constable should form his opinion that the information is relevant and should be disclosed because, viewed objectively, it is, taken as a whole, reliable. 
93.	I accept, of course, that a Chief Constable exercising his discretion under section 115 of the 1997 Act could not properly contemplate disclosing information which he believed (or had reasonable cause to believe) was untrue. I would, however, prefer to regard the need for there to be a belief that the information is true as a form of threshold criterion, which the information has to meet before, further and more detailed consideration is given to it.
94.	I reach this conclusion because any person – including a police officer - can have a strong, but nonetheless mistaken belief that a suspect is guilty. The two women police constables who interviewed the claimant plainly believed that he was guilty.  But, if Ms R was wrong in her identification of the claimant as the man who exposed himself to her, the officers’ belief that he was guilty – however sincerely and strongly held - was, plainly, itself wrong. 
95.	The risk that a subjective judgment may be wrong is, in my experience, particularly strong where allegations of sexual misbehaviour are concerned. This is a commonplace of Family Proceedings, where there is frequently no objective medical evidence of abuse, and allegations frequently arise in the context of acrimonious proceedings between former partners. Equally, however, cases have arisen in which the police or a local authority form a mistaken opinion of a party’s guilt, which is then transfused throughout the proceedings. It is for this reason that it has became axiomatic in any investigation of abuse that the investigator should investigate with an open mind.
96.	On the facts of the instant case, it seems to me that both Ms S and the Deputy Chief Constable relied on the police interview and on two women police officers’ belief that what the claimant said in interview was untrue, and that his statements that he could not remember, and that he did not think he had committed the offence, were false. In my judgment, the fact that the two interviewing police officers in the instant case thought the claimant guilty is only one factor in a much wider equation, and is not a factor which weighs heavily in the scales. 
97.	The dangers of relying on a subjective belief are, I think, self-evident.  A presumption of guilt arises, and the remaining evidence in the case is either ignored, or slanted, subtly and often quite unconsciously, to accord with the presumption. There are several possible examples of that process in the instant case, to which I now turn. 
Should the information in the instant case have been disclosed? 
98.	In my judgment, the statements provided by Ms S and the Deputy Chief Constable fail what I may describe as the modified Ex parte Thorpe and Re LM tests. On any analysis, two stark features stand out in this case. They are, firstly, that the critical issue in the criminal proceedings was the identification of the claimant; and secondly that the effect of disclosure in the form proposed in the ECRC would render the claimant unemployable as a social worker. In my judgment, these two factors required careful examination. 
99.	The crucial and simple fact in this case is that Ms R picked out a person other than the claimant during the covert identification at court on 25 September 2002. That fact, and the fact that there had been no previous identify parade, needed to be weighed objectively. In my judgment, it does not appear that they were, either in the opinion of Ms S or the Deputy Chief Constable. 
100.	Ms. S provides no reasons for her advice in her memorandum to the Deputy Chief Constable. She identifies the factors she thought relevant, but does not explain the weight she gave to them, or how she balanced them.  Moreover, in their affidavits neither Ms S nor the Deputy Chief Constable properly explains the factors in the reasoning process, which led them to the conclusion that the material should be disclosed. All the Deputy Chief Constable says in his statement is that he balanced the claimant’s Article 8 rights against any potential risks posed to those with whom the claimant may have future contact.  I have already set out the Deputy Chief Constable’s additional reasoning in paragraph 55.
101.	In my judgment, this is simply not sufficient. I appreciate that the Deputy Chief Constable was not writing a judgment, but this was the opportunity for him in these proceedings to explain his reasons for his decision that the information in the ECRC was both relevant and ought to be included. It is not enough, in my view, for the decision maker simply to say that he has carried out a balancing exercise.  He has to identify the factors he has weighed and explain why he has given weight to some and not to others. This is not an arcane or complex exercise.  
102.	In her statement, Ms S deals with the matter in the following way:
Due to aborted identification parades, following objections from the claimant through his legal representative, a group identification procedure did not occur until 25 September 2002 (nearly four months after the complainant last saw the suspect) The complainant failed to identify the claimant and the CPS decided to discontinue proceedings relating to both offences on 25 September 2002. (My emphases)
103.	The claimant’s case is that he was throughout willing to stand on an identification parade. That is what he says in his police interview. His case, supported by his solicitor’s CDS Time Recording Notes, is that he was advised to co-operate and did so. On the first occasion, the parade could not proceed, as there were only 5 suitable witnesses. On the second there were only 4, so he was asked if he would take part in a Viper ID parade. He agreed, but there was a lack of suitable “stooges”. He was then asked to take part in a Group ID and agreed, but by then the witnesses had left the ID suite. He thereupon agreed to a Group ID taking place on another occasion. However, none was arranged. 
104.	I do not imagine the solicitor’s notes were available to Ms S when she made her statement. However, nothing in the papers available to me warrants Ms S’s insinuation that the claimant frustrated the identification parade process.  Moreover, if the claimant’s solicitor objected to an inappropriately constituted identification parade, he was right to do so.
105.	Equally, there is no mention in Ms S’s statement of Ms R’s categorical assertion that she was “100%” certain she would recognise the man who exposed himself to her anywhere. Instead, her failure to identify is explained and excused by the fact that it was some four months since she had last seen the complainant. These are, in my judgment, subtle indications that, instead of making an objective assessment, and weighing the factors appropriately in the balance, Ms S had formed the view from the file that the complainant was guilty. Any objective reader looking at the ECRC disclosure would, I think, be given the strong impression that the claimant was guilty, and that Ms R’s failure to identify him was an unfortunate, but understandable mistake. 
106.	In my judgment, the fundamental point in this case is that the claimant is entitled to say that the information disclosed in the ECRC is irrelevant and should not be disclosed because it does not relate to him, but to somebody else, and that he was wrongly identified and wrongly charged. At the very least, in my judgment, those propositions need to be examined and weighed in the balance. Ms S identified as a factor  “if proceedings were instigated, why they were not continued” and we must infer that she dismissed the failure to identify as excusable because of the time lapse.  There is no evidence that the Deputy Chief Constable properly considered the point. 
107.	Nowhere in the Deputy Chief Constable’s reasons do I see any proper assessment by the Deputy Chief Constable of the effect on the claimant of disclosure being given. He simply says he “weighed the likely impact” on the claimant. He does not say how. We must infer that it was less than the potential impact on any vulnerable group if the information was not disclosed.  Yet this was a factor of critical importance. It was obvious, as Miss Barton accepts, that the consequence of the disclosure in the form contained on the ECRC would be to render the claimant permanently unemployable in any social work position. The consequences to him could not be more serious.  Merely to recite it as a factor without more is, in my judgment, simply insufficient. 
108.	I fully accept that on an application for judicial review, the court is not entitled to substitute its view for that of the decision maker. If the decision maker has reached a permissible decision having taken into account all the relevant factors and has given adequate reasons for his decision, it is not this court’s function to interfere in that process. 
109.	However, in the instant case, the decision, in my judgment, is flawed for one fundamental reason. It is that neither Ms S nor the Deputy Chief Constable seems to me properly to have addressed their minds to the two critical issues in the case, which I have identified in paragraphs 106 and 107. A proper analysis of those two factors points strongly against disclosure. There is a powerful case for saying that Ms R’s failure to identify the claimant was correct: that the claimant was not the man who exposed himself to Ms R. If he was not the man, then it follows inexorably that the information is irrelevant and ought not be to be disclosed. The implication in the ECRC that the claimant was guilty is, accordingly, unsafe and unreliable. Because of this, the effects on him of disclosure self-evidently outweigh the risks posed to those with whom the claimant may have future contact when employed as a social worker.
110.	In these circumstances it cannot, it seems to me be said that there is a “pressing social need” for disclosure on the facts of this particular case, notwithstanding the purposes of the 1997 Act, and even on the basis that the terms of section 115 oust the common law presumption against disclosure. 
111.	 For all these reasons, it seems to me that the claimant’s first ground is made out. For the claimant, Mr. Squires devoted a substantial part of his skeleton argument to a criticism of the Deputy Chief Constable for reaching his decision to approve disclosure without further investigation of the underlying facts of the case.  He suggests, as examples, further enquiries of Ms R, enquiries about other allegations of indecent exposure in the area, and further efforts to obtain the CCTV footage of the garage forecourt. 
112.	Subject to what follows in relation to procedural fairness, I am not saying that there may not be cases in which additional enquiries (apart from those made of the subject of the disclosure) may be appropriate once a request for information relating to an ECRC is received. However, my reading of section 115 is that it is designed to deal with information in the possession of the police, and it would, I think, be imposing an undue administrative burden on the police if further enquires were regarded as automatically necessary before an ECRC is completed. Plainly, if a Chief Constable cannot resolve the question of disclosure without further enquiries being made, those enquiries must be made. In the instant case, however, I am clear that the correct decision (not to disclose) did not require further investigation. 
Procedural Fairness

113.	Mr. Squires argued that the Chief Constable did not act fairly in that he denied the claimant an opportunity to make representations prior to his decision to disclose information to the CRB. 
114.	Mr. Squires began his argument on this point by going back to the judgment of Lord Bingham CJ and the Court of Appeal in ex parte Thorpe, which I have set out in paragraph 71 to 74 above. He also cited Lord Bingham’s statement that the consultation of other agencies, assuming time permits, was a valuable safeguard against partial and ill-considered conclusions. 
115.	Mr. Squires also relied on the earlier case of R v Norfolk County Council ex parte M [1989] QB 619. That case involved an allegation against a plumber (M) (which had not led to a conviction) of indecent exposure and inappropriate touching of a child. The allegations were disclosed by one local authority to M’s employer, another local authority, and he was included on a list of suspected child abusers. Waite J held that in making the disclosure the local authority had acted unlawfully. He noted the effect of the disclosure to M’s employment prospects, and held (at [1989] QB 619, 628) that:

the consequences of registration for M were in my judgment sufficiently serious … to impose on the council a legal duty to act fairly towards him. The council’s case conference [which had decided to place M’s name on the register and disclose the allegations to his employer] … acted unfairly and in manifest breach of that duty when it operated a procedure which denied him all opportunity of advance warning of their intentions or of prior consultation, or of being heard to object or of knowing the full circumstances surrounding the decision.

116.	Mr. Squires pointed out that Waite J had noted, earlier in his judgment, that allowing M or his professional advisers the opportunity to make representations would have enabled them to suggest further lines of enquiry to the authority. For example, they could have suggested to the authority that it ought to consider whether the child who had made the allegations against M might have fabricated them.
117.	Mr. Squires argued that the importance of consultation and the right to make representations were widely recognised as a basic aspect of procedural fairness in public law generally. He relied on the following passage in the speech of Lord Mustill in R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 at 560: 
fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before a decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification.
	
118.	Mr. Squires further argued that, generally speaking, to be considered fair, consultation and an opportunity for representations must occur “at a time when proposals are still at a formative stage; it must include sufficient reasons for a particular proposal to allow those consulting to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be taken into account when the ultimate decision is taken”: see the judgment of the Court of Appeal in  R v North and East Devon Health Authority ex parte Coughlan) [2001] QB 213 at 258.
119.	In developing his argument, Mr. Squires accepted that the requirements of fairness were dependent, to some extent, on the circumstances of a particular case. However, in this case, he submitted, it was manifestly unfair not to permit the claimant to make representations prior to disclosure, for a number of reasons.
120.	Firstly, the decision to disclose the information to the CRB was plainly likely to have adverse consequences for the claimant. The Chief Constable knew that the information had been requested by a potential employer of the claimant and that the CRB had a statutory duty to disclose it once it was provided. The decision to disclose the information was also, effectively, a finding that the claimant had committed serious criminal offences. Under such circumstances natural justice, pursuant to the common law and the Convention, require that the claimant be given an opportunity to make representations prior to the adverse decision being taken. 
121.	Secondly, Mr. Squires submitted that the importance of the right to make representations was evident from the fact that the Chief Constable was required to consider the likelihood the claimant had committed the offence, the risk posed if disclosure was not made and the effect on the claimant if it was. As the Court of Appeal had noted in ex parte Thorpe, in most situations that can be anticipated, “it will be obvious that the subject of the possible disclosure will often be in the best position to provide information which will be valuable when assessing the risk.” The same, Mr. Squires argued, could be said of the effect of disclosure on the claimant. Without allowing the claimant to make representations, and in the absence of evidence from the probation service or social workers, the Chief Constable could not fairly balance the risk of disclosure and non-disclosure.
122.	Furthermore, Mr Squires argued, in order for the Chief Constable lawfully to disclose the allegations made against the claimant he had to determine that it was likely that the allegations were true. It was unfair, Mr. Squires submitted, for such a conclusion to be reached without the claimant being given the opportunity to give his version of events. The right to make representation is of particular importance where the claimant has had no opportunity to respond to serious allegations made against him. It is only in exceptional circumstances, Mr. Squires submitted, that an individual who has not been convicted of an offence, nor gone through some other judicial process, should have allegations of serious misconduct disclosed without previously being told of the case against him and being given the opportunity to make representations. No such exceptional circumstances existed in this case. 
123.	Mr. Squires also submitted that there would be little administrative burden on the Chief Constable in allowing representations to be made, given the evidence that only 3 of every 1000 enhanced disclosures contain non-conviction information. There was also no particular compelling reason, such as urgency or a need to protect sensitive information, so as to justify denying the claimant the opportunity to make representations. He could, with little practical difficulty, have been told of the information which the Chief Constable was considering about him and been permitted, on his own or through his representatives, to make submissions on it.

124.	In contrast to ex parte Thorpe, Mr. Squires submitted that the Claimants case was not one in which it could be concluded that “no information [he] could have supplied would have altered the outcome of the case” and therefore that relief ought to be denied. The court should be slow to conclude that representations would have had no impact. Such a conclusion was permissible on the extreme facts of ex parte Thorpe, in which the individuals in question had been convicted of very serious offences against children and been the subject of numerous reports by therapists and probation officers. As a consequence it was possible in that case safely to conclude that any representations the claimants’ could have made would not have altered the authority’s decision. 
125.	In relation to the claimant in the instant case, however, Mr. Squires submitted that there were various representations he could have made which might have altered the outcome of the Chief Constable’s decision. For example, he could have explained the reasons why he gave the answers he did during the interview with the police and corrected the somewhat misleading description of the interview given by Ms S. The claimant could also have indicated, in relation to the incident of June 2001 in which he was questioned about another indecent exposure that the person who the police were seeking was in his early 20’s while the claimant was in his early 40’s. An opportunity to make representations would have allowed the claimant to explain the effects on him of the disclosure as well as unequivocally to deny involvement in the incidents. 
126.	Mr. Squires accepted that he was not suggesting that such representations would inevitably have altered the decision to disclose. It could not, however, he submitted, be concluded that they, or other representations, could not have done so.
127.	For the Chief Constable, Ms Barton succinctly advanced three arguments. The first was that there was no requirement in the Act of 1997, and thus no obligation on the Chief Constable to permit the subject of the disclosure to be permitted to make representations. The second was that the claimant had had a contemporaneous opportunity to make representations as to his version of events during the course of his police interview. The third was that the statutory framework set out in Part V of the Act was sufficiently precise to enable a decision as to disclosure to be fairly made, particularly when subject to the general common law provision that the discretion must not be exercised arbitrarily.
128.	On this point, I prefer the submissions made by Mr. Squires. Whether or not one includes the need on the part of the Chief Constable to believe the allegations were true, I am quite satisfied that the duty to act with procedural fairness under section 115 of the Act of 1997 is fair and square within Lord Mustill’s statement in ex parte Doody which I have cited in paragraph 117 and that the weight of authority in the cases cited by Mr Squires is amply sufficient on the facts of this case to negative Ms. Barton’s argument that the duty to act fairly does not include an obligation to permit the subject of the proposed disclosure to makes representations on it. 
129.	I am conscious, of course, of the danger of imposing an unrealistic administrative burden on the police. However, I bear in mind in particular that the procedure adopted by Ms S in this case caused her, quite properly, to send for the crime file and to read it thoroughly. She then reported to the Chief Constable. I see no administrative difficulty in that context in contact being made with the claimant or his advisers once a provisional decision to disclose information had been made. This conclusion is reinforced by the very small numbers of ECRCs and the important consequences, which may flow from disclosure for those who are the subjects of them.
130.	Furthermore, I am unable to accept Ms Barton’s argument that the police interview was the claimant’s opportunity to make representations. The claimant is seeking an opportunity to comment on the decision to make disclosure. Commenting on the interview is an integral part of that process. 
131.	Apart from the fact that the police interview and the opportunity to respond to the proposal to disclose information are qualitatively quite different, the opportunity to make representations on the proposed disclosure must involve an opportunity to comment on, and explain, the claimant’s answers during his police interview, on which the Chief Constable is placing reliance.  Ms Barton’s argument on this point amounts to a denial of the opportunity to make representations. If her argument were accepted, the claimant would be denied the opportunity to comment on any aspect of the case, which post-dated the interview.
132.	For all these reasons, the claimant succeeds in my judgment on his second ground.  The Deputy Chief Constable should have afforded him the opportunity to make representations on the material, which it was proposed to disclose. His failure to do so was procedurally unfair, and the decision to provide the information cannot stand for this reason also.
The claimant’s third argument: the Chief Constable had unlawfully departed from the Association of Chief Police Officers’ (ACPO) Code of Practice for Data Protection in relation to information held concerning the Claimant.
133.	The Association of Chief Police Officers Code of Practice for Data Protection (to which I will refer as “the ACPO Code”) is designed to establish procedures and safeguards to promote the maintenance of good practice and compliance with the Data Protection Act 1998  (DTA 1998).
134.	Section 8 of the ACPO Code deals with the retention of personal information. Section 8.4 provides general rules for criminal record weeding on police systems. Section 8.4 paragraph 12 provides that, with certain exceptions, details of acquittals, or of cases discontinued without caution may not be retained beyond 42 days after the notification of discontinuance.  However, under paragraph 13.1 acquittals for an offence of unlawful sexual intercourse by a male with a female under the age of 16 years must be retained. 
135.	Section 8.4 paragraph 14 provides that: -
14.1 	Details may be retained for a period of five years in cases where a sexual offence is alleged, but the subject is acquitted, or the case is discontinued because of lack of corroboration or allegation of consent by the victim, providing identity is not an issue. An officer not below the rank of Superintendent must give authorisation and be reviewed again at the end of   the retention period. Cautions for sexual offences, ordinarily weeded after five years, may also be reviewed and extended where appropriate. 

	14.1	When considering retention for cases above, the authorising officer must personally consider the full circumstances and only if all of the following criteria have been satisfied will authorisation for retention of the details be given;

	(i) The circumstances of the case would give cause for concern if the subject were to apply for employment for a post involving substantial access to vulnerable persons and;

	(ii) The decision to retain the information can be defended on the grounds of the prevention and detection of crime.

136.	Section 8.5 of the ACPO Code is headed Crime Intelligence, and reads as follows: -
It is not possible to lay down strict criteria for the removal of date from criminal intelligence records. The need to retain or remove such information can only be judged from the nature of the information, and whether it is necessary, lawful, proportional and relevant to its purpose.

The decision to retain or remove personal information will be assisted by knowledge of the reliability of the source.

All intelligence reports will be reviewed on a regular basis and considered for deletion subject to a maximum period of 12 months.

For intelligence to be retained it must be relevant, but in some cases information will have to be retained for long periods if the police are to effectively discharge their duties.

137.	On this part of the case, Mr. Squires makes a very simple submission.  Ms S accepts in her statement that the Chief Constable was not permitted to depart from the ACPO Code without valid reason in relation to information held about the Claimant. Section 8.4 paragraph 12 provides clearly that information concerning a discontinued case should not be retained beyond 42 days of notification of discontinuance. None of the exceptions applied. Accordingly, the Chief Constable acted unlawfully in holding information about the Claimant after the end of the 42-day period. 
138.	To this, Ms Barton’s response was to accept that information concerning a discontinued case should not be retained on the subject's criminal record beyond 42 days of notification. However, she submitted that the information held by the Chief Constable in respect of the discontinued matters constituted criminal intelligence and therefore fell within paragraph 8.5 of the ACPO Code 
139.	Ms Barton argued that it was nonsensical to suggest that criminal intelligence could only cover current investigations. Intelligence was any information, which was likely to be of assistance to the police in the furtherance of their common law duty to prevent and suppress crime. She relied on the speech of Viscount Cave LC in Glassbrook Brothers Ltd v Glamorgan County Council [1925] AC 270 at 277 to which reference has already been made in paragraphs 73 above There was an absolute and unconditional obligation binding the police authorities to take all steps which appear to them to be necessary for keeping the peace, for preventing crime. 
140.	Ms Barton argued that the material held by the Chief Constable concerned three separate allegations of indecency within the space of one year. Two of the offences occurred at one venue in relation to a particular individual.  Retention of the information was thus reasonable and necessary in furtherance of the Chief Constable's common law duties. 
141.	Ms Barton argued that if the claimant's submission was correct one would never be able to bring before a court similar fact allegations if those matters occurred more than 42 days apart because such material would not be held. Thus a person could be the subject of 10 separate allegations each three months apart, none of which taken alone had led to a conviction, but which, taken together were very compelling evidence. An extremely useful investigatory and evidential tool would thus be lost to the police. 
142.	Ms Barton submitted in the alternative that if, which was denied, the Chief Constable had departed from the ACPO Code retention of the material was lawful by reason of it being a step which appeared to the Chief Constable to be necessary for the discharge of his common law duty to keep the peace and prevent crime. Disclosure of the information was with good reason, the Deputy Chief Constable having properly carried out the balancing exercise required in the exercise of the discretion. The fact of the matter was that the information had been brought to the attention of the Deputy Chief Constable who had a duty under S.115 (7) of the Police Act 1997. Once the information was in his possession then in view of the risk posed to vulnerable members of the community he could not simply ignore it. The correct approach was to apply the test set out in S.115 (7) to the information available.
143.	Mr. Squires’ response to these submissions was to argue that if the Chief Constable was suggesting that any information relating to a completed criminal investigation may be maintained as “intelligence” it would render the detailed provisions of Part 8.4 of the ACPO Code redundant. In almost every instance, he submitted, information of an acquittal or discontinued proceedings could then be kept as “criminal intelligence” and the rules set out in Part 8.4 would be bypassed.
144.	Mr. Squires submitted that “criminal intelligence” referred to information, which is the basis of an ongoing criminal investigation. The police were not currently investigating the possibility that the claimant was involved in the indecent exposures at the petrol station and the information in question plainly fell within Part 8.4 of the ACPO Code and not Part 8.5.
145.	As to  “good reason” for departing from the ACPO Code because the information was relevant to the suitability of the claimant to work with children, Mr. Squires submitted that this argument was also misconceived. Again, if correct, it would render otiose the provisions contained in the ACPO Code Part 8.4 and especially para 14. The Code specifically dealt with the retention of information pertaining to sexual offences where the individual in question may come to be employed to work with vulnerable individuals. Part 8.4 paragraphs 5.4 and 6 provided that a conviction for an offence for indecency or a sexual offence should be retained until the subject dies or reaches 100 years of age. 
146.	Mr. Squires argued that the claimant’s case did not fall within the exception contained in part 8.4 paragraph 14, as identity was an issue. The Chief Constable’s submission that he could nevertheless the information was plainly contrary to the Code’s provisions. It would mean that in every case information could be retained relating to discontinued proceedings for sexual offences, regardless of whether identity was in dispute. There was nothing exceptional about the particular circumstances of the claimant’s case so as to generate a valid reason for the Part 8.4 paragraph 14 of the Code to be disapplied. As such the retention of the information in question beyond 42 days was unlawful.
Discussion
147.	I am very conscious of the fact that each case turns on its particular facts, and as a consequence it would be inappropriate for me to be drawn into a discussion of what does and what does not constitute criminal intelligence, particularly when it is not necessary to my decision. In my judgment, on the facts of this case, DPA 1998 and the ACPO Code add little to the common law considerations upon which my decision is primarily founded.  I certainly would not wish to make any finding about the meaning of criminal intelligence which inhibited the police in the proper execution of the duties identified in the speech of Viscount Cave in Glassbrook Brothers Ltd v Glamorgan County Council (supra).
148.	As I have already recorded in paragraph 138, Miss Barton accepted that the information could not be - and, she submitted, was not – held under section 8.4 of the ACPO Code. As identity was in issue, the exception in paragraph 14 applied. Retention by the police of claimant’s acquittal beyond the 42 day period identified in Part 8.4 paragraph 12 would have constituted a breach of the ACPO code. That seems to me plainly correct. 
149.	In these circumstances, given the relief, which the claimant seeks, I do not think that it is necessary for me to rule on whether or not the information held by the police constituted  “Crime Intelligence” within section 8.5 of the ACPO Code, and I do not intend to do so. Equally, whether or not the fact of a breach of the ACPO Code would render unlawful an otherwise proper exercise of the powers given to a Chief Constable under section 115(7) of the 1997 Act is another question on which I express no view.
Conclusion
150.	In my judgment, the Deputy Chief Constable’s decision to provide to a potential employer of the claimant, information contained in the "Other Relevant Information” section of the ECRC relating to the claimant dated 2 March 2003, and issued pursuant to section 115 of the Act of 1997 cannot stand and will be quashed.  The claimant is entitled, in my judgment; to the other relief he seeks as set out in sub-paragraphs 1-4 of paragraph 6 of this judgment. I invite counsel to agree an appropriate order.

Footnote
151.	I wish to make it as clear as possible that, although on the facts of this particular case I am quashing the decision of the Deputy Chief Constable to provide information under section 115(7) of the Act of 1997, nothing in this judgment is designed to interfere in any way with the proper flow of relevant information between statutory authorities in the field of child protection. Equally, as I make clear in paragraph 147 of this judgment, I am making no decision outside the ambit of the facts of this particular case as to what material can or cannot constitute criminal intelligence in the investigation of crimes relating to children and other vulnerable people, or as to what information may or may not be retained by the police in that context. These are all matters for the police. 
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LORD JUSTICE WALL:  For the reasons contained in the judgment I am now handing down I will make a declaration that the information contained in the Enhanced Criminal Record Certificate dated 3 March 2003 was unlawfully provided by the defendant to the Secretary of State.  I will also make the consequential orders identified in paragraph 2 of the draft order which I understand has been agreed between counsel and I will hear argument on sub‑paragraph 5.  
MISS STUDD:  I have four points to make, all of them short.  Since you heard this case requests for enhanced certificates has reached the public and will be considered by the Bichard Inquiry next month.  This is the first case to be decided under the 1997 statutory provisions.  There is a public interest, in my submission, in the Court of Appeal considering what matters the Chief Constable should take into account when considering whether or not to disclose information such as this.
The second point arises directly from your judgment and concerns the issue of whether or not the common law principles apply equally where Parliament has imposed a statutory duty on police officers, that is, notwithstanding the modified criteria in Thorpe and LM that you applied in your judgment.
The third point is the difficulty arising for the police as a result of the finding that where identification is in issue the presumption should be that disclosure should not be made.
LORD JUSTICE WALL:  I do not think I said that, did I?
MISS STUDD:  You have not said that in terms, no.  But the implication must be that where identification is in issue, which it often is in incidents such as the one with which you were dealing, then unless there is good additional evidence the decision should be against disclosure on an objective basis.  As Miss Barton argued before you, that makes it difficult for police in circumstances where there are for example two or three such allegations, each of which are discontinued or not proceeded with because of identity being in issue.  It may prevent the police from being able to identify potential serial offenders.
LORD JUSTICE WALL:  I do not want to take time over this argument.  I fully understand why you are advancing it.  One of the reasons I deliberately did not decide whether or not  this was criminal information was precisely to meet that difficulty.  I quite understand that there will be circumstances in which the police will wish to retain information for the purpose of further inquiries if they are investigating either one or a series of alleged sexual offences.  That seems to me a quite different question as to whether or not that information should be contained on an ERRC.
MISS STUDD:  The difficulty is that if you have somebody who has been arrested in respect of sexual matters ‑ I use that in the broadest terms ‑ but identification has been in issue on more than one occasion, and that person applies for employment which comes within the criteria in the 1997 Act, there is, as a result of this judgment, a presumption against disclosing that information to the employer.  The danger there is it may be that the employer employs somebody who is inherently unsuitable and the matter only comes to light when something more serious occurs.  In my submission the 1997 Act tends to want to prevent that from happening rather than letting it happen and then .....
LORD JUSTICE WALL:  I understand the point you are making.
MISS STUDD:  ..... difficulties ..... 
LORD JUSTICE WALL:  I will not interrupt any more.
MISS STUDD:  My last point relates to the second matter you decided which is the question of permitting a subject of disclosure to make representations prior to the disclosure being made.  I take that very shortly because your Lordship summarised Miss Barton's arguments at paragraph 127.  I do not intend to repeat them; they are the arguments that she would no doubt advance before the Court of Appeal and they are matters that the Court of Appeal should consider.
LORD JUSTICE WALL:  Mr Purchas, do you want to say anything?
MR PURCHAS:  Yes.  In relation to the third point, as you have identified, your judgment does not make any general presumption.
LORD JUSTICE WALL:  I am going to interrupt you because I think it may shorten things.  I hope I went out of my way to make clear that each of these cases has to be decided on its own facts.
MR PURCHAS:  Indeed.
LORD JUSTICE WALL:  The fact that I have declared the disclosure unlawful very much seems to turn on the facts of this particular case.
MR PURCHAS:  I have very little in addition to say to that.  For those very reasons this would not be a suitable case for the Court of Appeal to deal with what Miss Studd sees as the public interest in this case because the vast majority of the legal propositions were agreed, and insofar as they were not agreed your Lordship has proceeded on the basis most favourable to the defendant.  So there is no point of law which the Court of Appeal could grasp in this case.
LORD JUSTICE WALL:  I would like to say this to you and Miss Studd.  I am very sorry that there was such a delay in the delivery of the judgment.  It was partly due to the fact that  I was appointed to the Court of Appeal in the middle of it and also due to the huge pressure of work at the end of last term.  I do apologise to both sides for the delay in delivering the judgment.
Miss Studd, I am going to refuse permission to appeal.  I agree with you that this is an interesting area, it is an interesting point.  But on the principal points you made and dealing with the last one first ‑ I will fill in the requisite form so you will have it and I will give my reasons for refusing permission in detail ‑ I do think that on the last point, on the facts of this particular case, the lack of the opportunity to make representations was a serious procedural unfairness.  Although I did set out Miss Barton's arguments very carefully, the argument in particular that the claimant had the opportunity to deal with the matter in his police interview is one which I do not think is really sustainable.  I quite understand, in the light of what has happened at Soham, these certificates will now be the subject of public interest and the Bichard investigation.  It seems to me that on the first point you make I did attempt to decide the case not just on the individual facts but on the basis that there was no presumption against disclosure.
In those circumstances it does not seem to me that this particular case raises a point of public importance in which it would be appropriate to give leave to appeal.  At the same time I recognise that the Court of Appeal might take a different view.  What I am going to do is to allow that decision to be made by the Court of Appeal.
I will fill in the form giving my reasons for refusing permission and you will be entirely at liberty to make an application for permission which will then be dealt with by the single Lord Justice in the normal way.
MISS STUDD:  For the benefit of the journalists, could we ensure that they look at the order because there is an injunction under the Contempt of Court Act preventing ..... 
LORD JUSTICE WALL:  Yes.  I think this case is of some public interest, but it is very much a case which ‑ I reiterate it ‑  has been written.  Save that I have identified the Chief Constable, it is otherwise entirely anonymous.  Is that right?
MISS STUDD:  Yes.
LORD JUSTICE WALL:  On your reading of it, Miss Studd, is that right?  It is otherwise entirely anonymous.
MISS STUDD:  Yes.  It is.
LORD JUSTICE WALL:  I have gone out of my way to anonymise not only the lady who made the complaint but also the relevant  officers in the defendant's department who dealt with the matter.  I would be very concerned to ensure that nothing is published which in any way would identify any of the participants in the case on the part of the Chief Constable.
MISS STUDD:  It is identified on the court list and that is why I raise it.
LORD JUSTICE WALL:  I am very grateful.  I am sure that those who deal with these matters are extremely experienced and would not dream of offending against the normal rules.

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