ON APPEAL FROM THE HIGH COURT OF JUSTICE
MANCHESTER DISTRICT REGISTRY
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE LANGSTAFF
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WILSON
LORD JUSTICE TOULSON
| The Queen on the Application of C
|- and -
Secretary of State for the Home Department & Anr
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Mr Anthony Hayden QC & Ms Abigail Hudson (instructed by Messrs Carter Moore) appeared on behalf of the Respondents.
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Lord Justice Toulson:
"Upon any application for an enhanced criminal records certificate for the position of instructor, lecturer or teacher of children over the age of 16 in an educational setting it would be unlawful for the first and second defendant to disclose the information set out in the confidential schedule annexed hereto. Such disclosure is disproportionate to the level of risk disclosed by the information."
And he granted the following injunction:
"The first and second defendant are prohibited from disclosing the information set out in the confidential schedule annexed hereto in response to any application for a criminal record certificate and/or enhanced criminal record certificate in relation to a position as an instructor, lecturer or teacher of children over the age of 16 in an education setting after the date of this order."
"The full circumstances were reviewed by the Crown Prosecution Service who concluded that, whilst there was no reason to disbelieve the female's account, there was insufficient evidence to provide a realistic prospect of conviction. No further police action was taken in this instance."
"…in cases of doubt, especially where it was unclear whether the position for which the applicant was applying requires disclosure of sensitive information, where there was doubt that the sensitive information could be substantiated or where there was doubt whether the information was still true, the Chief Police Officer should offer the applicant an opportunity of making representations before the information was released.
In R (X) v Chief Constable of the West Midlands Police at para 37 Lord Woolf, CJ, rejected Wall J's suggestion that this should be done on the ground that this would impose too heavy an obligation on the Chief Constable. Here too I think, with respect, that he got the balance wrong, but it will not be necessary for this procedure to be undertaken in every case; it should only be resorted to where there is room for doubt as to whether there should be disclosure of information that is considered to be relevant. The risks in such cases of causing disproportionate harm to the applicant outweigh the inconvenience to the Chief Constable."
"In a nutshell, as Lord Hope has said, the issue is essentially one of proportionality. In some, indeed possibly many, cases where the chief officer is minded to include material in an ECRC on the basis that he inclines to the view that it satisfies section 115(7)(b), he would, in my view, be obliged to contact the applicant to seek her views, and take what she says into account, before reaching a final conclusion. Otherwise, in such cases, the applicant's article 8 rights will not have been properly protected. Again, it is impossible to be prescriptive as to when that would be required. However, I would have thought that, where the chief officer is not satisfied that the applicant has had a fair opportunity to answer any allegation involved in the material concerned, where he is doubtful as to its potential relevance to the post for which the applicant has applied, or where the information is historical or vague, it would often, indeed perhaps normally, be wrong to include it in an ECRC without first giving the applicant an opportunity to say why it should not be included."
"Deciding that the decision making process was flawed does not, however, resolve this case, because I have next to consider whether in any event the decision, though flawed, was in any event plainly and unarguably right before turning to determine what relief, if any, I should give."
He addressed that question and concluded, at paragraph 51: "It follows that I cannot say that the decision is plainly and obviously right."
"I then have to ask what the consequence should be so far as this court is concerned. It seems to me so obvious in this case that a decision to release this information in any form, whether supported by the discussions with the claimant in advance or not, would simply not be proportionate, that I should so declare and I propose to do so."
"…in relation to a position as an instructor, lecturer or teacher of children over the age of 16 in an educational setting."
Lord Justice Wilson:
Lord Neuberger, MR:
"There is no doubt that the information that was disclosed about [the appellant] was relevant for the purpose for which the ECRC was being required. As for the question whether it ought to have been disclosed, insufficient weight was given to the appellant's right to respect for her private life. But there is no doubt that the facts that were narrated were true. It was also information that bore directly on the question whether she was a person who could safely be entrusted with the job of supervising children in a school canteen or in the playground."
In that case also the information included in the certificate related to a serious incident which had occurred less than three before the certificate.
Order: Appeal allowed in part