Case No: C1/2010/1545 & 1545(C) 
Neutral Citation Number: [2011] EWCA Civ 175
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MANCHESTER DISTRICT REGISTRY
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE LANGSTAFF
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 19th January 2011

Before:

MASTER OF THE ROLLS
LORD JUSTICE WILSON
and
LORD JUSTICE TOULSON
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Between:

	The Queen on the Application of C	
Appellant	
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Secretary of State for the Home Department & Anr	

Respondents	
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(DAR Transcript of 
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Ms Anne Studd (instructed by Chief Constable of Greater Manchester Police) appeared on behalf of the Appellant.
Mr Anthony Hayden QC & Ms Abigail Hudson (instructed by Messrs Carter Moore) appeared on behalf of the Respondents.
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Judgment

Lord Justice Toulson:

1.	The Chief Constable of Greater Manchester Police appeals against a judgment and order made by Langstaff J on 24 May 2010 on an application by the respondent, C, for judicial review of the decision of the Chief Constable to disclose details of a sexual allegation made against C, pursuant to the statutory provisions concerning the issue of Enhanced Criminal Record Certificates ("ECRCs").  The judge held that the decision was unlawful both on grounds of procedural deficiencies and because it was, in his judgment, obvious that a decision to release the information contravened C's rights under Article 8 of the European Convention.  He therefore quashed the decision.  He also made this declaration: 

"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."

2.	The statutory scheme concerning the issue of various forms of criminal record certificate is quite complex and has been considered by the courts on a number of occasions.  For present purposes the relevant part of the scheme can be summarised shortly.

3.	Under Part V of the Police Act 1997, as amended by the Serious Organised Crime Act 2005 and the Safeguard of the Environmental Groups Act 2006, a person who is seeking employment in a job which would involve training persons under the age of 18, or a prospective employer, can request the Secretary of State to issue an ECRC. Before issuing such a certificate, Section 113B4 requires the Secretary of State to ask the Chief Officer of Police for every relevant police force to provide any information which, in the Chief Officer's opinion, might be relevant for the purpose for which the certificate is required, ie for considering the prospective employee's suitability, and, in the Chief Officer's opinion, ought to be included.  

4.	In deciding whether information ought to be included, for example about allegations of criminal conduct made to the police which have not led to criminal proceedings, there is obviously a balance to be struck between the need for protection of young people and the interests of the person concerned, who  may be entirely innocent of any wrongdoing.  The person concerned has rights under Article 8, but Article 8(2) qualifies those rights by permitting acts which are in accordance with the law and necessary in a democratic society for, among other things, the prevention of crime or for the protection of the rights and freedoms of others.

5.	At the time of the making of the decision which is the subject of these proceedings, the leading authority on how the balance should be struck was the decision of the Court of Appeal in R (X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65.  The guidance given in that decision was disapproved by the Supreme Court in R (L) v the Commissioner of Police of the Metropolis [2009] UKSC 3, [2010] 1 AC 410.  

6.	The Secretary of State's functions in relation to criminal records certificates are performed by the Criminal Records Bureau ("CRB").  C wished to obtain employment as a welding lecturer at a further education college.  For this purpose he was required to undergo a CRB enhanced disclosure check.  In response to the CRB's request to Chief Constables for information, the Chief Constable provided details of an allegation made in 2006 of historic sex abuse. The information was consequently included in the CRB disclosure.  The information set out details of the allegation and concluded: 

"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."

7.	The result of that disclosure was to make impossible C's attempt to obtain employment as a welding lecturer.  In his application for judicial review, C challenged the lawfulness of the decision on various grounds.  The main grounds were that there was procedural impropriety, among other respects, in that C was not given an opportunity to make representations prior to the decision being taken to make such disclosure, the effect of which would be to destroy his employment prospects in his chosen field; and that the decision was in breach of his Article 8 rights, because it was disproportionate.

8.	The appellant accepts that there was procedural irregularity in the sense that the decision was taken applying what was then the guidance given to Chief Constables by the courts, whereas the correct guidance which we now know ought to have been applied was that laid down by the Supreme Court in L.  However, the Chief Constable submits that this procedural irregularity has caused no injustice in this case and that the decision would inevitably, and rightly, have been the same, even applying the guidance in L.  The appellant does not accept that C ought to have been given an opportunity to make representations because, in the Chief Constable's submission, the case was a clear one.  The question when an opportunity for making representations should be given was considered in L.  Lord Hope said, at paragraph 46: 

"…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.”  

9.	To similar effect, Lord Neuberger said, at paragraph 82: 

"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."

10.	In the present case the judge was unimpressed by the evidence adduced by the Chief Constable in the form of a witness statement by a police inspector as to the reasons for making the decision.  He did not consider that a proper balancing exercise had been conducted.  He noted that on the face of the evidence there did not appear to have been any detailed consideration of the risk that C, as a welding lecturer in a further education college, would come into contact with a child in respect of whom there might be a risk.

11.	I refer to those matters as illustrative of points which C would have been likely to want to advance if he had been given the opportunity to make representations.  However, that is not in itself an answer to the question whether fairness required that he should have been given such an opportunity.  We were invited by Ms Studd to give further guidance to Chief Constables on whether and when such an opportunity should be given to the prospective employee.  However, I think it would be unwise to gloss, or add to, what was said by Lord Hope and Lord Neuberger in L.  The question ultimately is a fact specific question.  

12.	In this case the allegations were of abuse said to have occurred more than 15 years earlier.  At one stage the allegation had been withdrawn and then renewed some years later.  They were denied by C.  When those factors are taken into account, in conjunction with the nature of the employment which he was seeking, it does seem to me, looking at the matter overall, that fairness required that he should be given an opportunity to make representations.  If one asks the question, rhetorically, “Was it obvious that nothing that he could have said could rationally or sensibly have influenced the mind of the Chief Constable?”, I am not persuaded that the answer is an obvious “yes”.  That is very far from saying what the right answer should have been.  I emphasise that this is a view formed on the particular facts of this case, applying the general guidance laid down in L.  I would also emphasise that giving an opportunity to the prospective employee to make representations does not necessarily mean arranging for any form of oral hearing.  Representations can be made in a much simpler form than that.

13.	When considering how such disputes are handled, it is also right to bear in mind the pre-action protocol for judicial review applications.  There may be cases in which the Chief Constable, in good faith, does not think it necessary to afford an opportunity to make representations, but the prospective employee is aggrieved by the lack of opportunity given to him of doing so.  In such circumstances one would expect the pre-action letter to set out the representations which the person would have wished to make, and, unless the Chief Constable considers that they do not merit any consideration at all, one would expect that the Chief Constable at that stage to give consideration to them.  All this is part of the modern process for dealing with public law complaints in a way which is just and does not involve unnecessary expense. In other words, I would hope that courts are not going to be burdened with judicial review applications based on a failure of an opportunity to make representations, without the complainant first setting out the concerns and relevant considerations in correspondence and the Chief Constable considering the correspondence.

14.	The Act itself provides a form of internal appeal, but that is confined to disputes about the accuracy of the certificate.  

15.	It follows from what I have said that, in my view, the judge was entitled to quash the decision on the combined grounds that the decision was taken applying guidelines which no longer represent the law and C had not had an opportunity of making representations before the decision was taken.

16.	Thus far I am in agreement with the judge, but he went further than that.  Normally, when the Administrative Court forms the judgment that a decision of a public body is flawed for procedural irregularity, the order will be quashed and that will put matters back to square one.  To grant further relief in declaratory or injunctive form may be appropriate in some particular circumstances, but I do not consider that it was appropriate in this case.  On the contrary, it is my view that it was positively inappropriate for two reasons.  First, the primary decision-maker under the scheme is the Chief Constable.  Secondly, any fresh decision would be on the material then available to him, which might not be the same as the material at the time when the original flawed decision was made.  I therefore turn to consider the reasons which led the judge to take the view that such additional relief was appropriate in this case.  

17.	At paragraph 44 of his judgment he said: 

"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."

18.	He then made two jumps.  The first jump was to move from his conclusion that the decision was not plainly and obviously right to concluding that it was plainly and obviously wrong.  With respect to the judge, he has not spelt out satisfactorily, to my mind, the reason for taking that major step.  He stated his conclusion, but without further reasoning, at paragraph 52:

"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."

19.	His second jump was to grant declaratory and injunctive relief, which precluded the Chief Constable from making a future decision to disclose the relevant information upon the material which might then be before him.  The declaration which I have set out was in hypothetical form.  It declared that it would be unlawful for the first and second defendant to disclose the information in response to any future application.  It is one thing to make a declaration about present and past rights; it is another thing to make a hypothetical declaration of what might be the correct decision on a future application with additional material to support it.  Similarly, the injunction prohibited the Chief Constable from making any such disclosure in response to any application: 

"…in relation to a position as an instructor, lecturer or teacher of children over the age of 16 in an educational setting."

20.	As Wilson LJ pointed out in the course of argument, that is a very wide form of injunction; it would cover any sort of post teaching 16 year olds of either sex.  The practical consequence would be that, if further material came to light which fortified the Chief Constable's concerns about C, the Chief Constable would first have to go back to the Administrative Court and apply for the injunction to be discharged or varied, and for the declaration to be varied, before he could make a fresh decision on the fresh material.  That would be an unsatisfactory procedure.

21.	For those reasons I would allow the appeal to the extent of setting aside the declaration and injunction granted by the judge.

Lord Justice Wilson:  

22.	I agree.  It is conceded that the decision was flawed in that (and such was not the fault of the Chief Constable) he applied the guidance that had been set by this court in R (X) v Chief Constable of the West Midlands Police [2004] EWCA Civ 1068, [2005] 1 WLR 65.  Granted that there was a flaw in the decision-making process, the usual course would be to quash the decision and leave it to the Chief Constable to make the decision all over again in the absence of that flaw.  The judge concluded that there was no need to take that course in that the only rational decision to be made by the Chief Constable in the light of C’s rights under Article 8 was that the disclosure should not be made; and thus, as my Lord has explained, he went on to make the declaration and injunction.

23.	His reasons for going on to make the declaration and injunction were really not articulated at all; and I agree with my Lord that his declaration and injunction cannot stand.

24.	Where, then, do we go next?  We next go to Ms Studd's submission this afternoon on behalf of the Chief Constable, which is at the opposite end of the spectrum to that favoured by the judge.  Her contention is that the matter need not go back for further consideration because it is so plain that any Chief Constable properly directing himself would so conduct the balancing exercise as to conclude that there should be disclosure in the terms already favoured by the Chief Constable.

25.	If only by reference to the point that, as was made clear in R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3, [2010] 1 AC 410, consideration always has to be given to whether the applicant for the certificate has been given a proper opportunity to comment on the proposed certificate before it is sent out, I would reject Ms Studd’s submission and would conclude that, prior to the grant to C of an opportunity to comment, one cannot say that the only rational conclusion would be that disclosure should be given.  Ms Studd articulates concerns about the demands which would be made on Chief Constables if there had to be any substantial amount of consultation on their part with applicants before the certificates were finally issued.  Of course, to a large extent that concern has been considered and dismissed by the Supreme Court in L.  But, insofar as she throws up her hands on behalf of Chief Constables and suggests the impracticability of any substantial degree of consultation between Chief Constables and applicants prior to issue of certificates, then I would say, only, in effect, echoing what my Lord has said, that the decision in L was that there should be in some cases, perhaps in many cases, a degree of consultation.  The word used by my Lord, Lord Neuberger in paragraph 82 of his judgment was that in some, possibly many, cases a chief constable was obliged to contact the applicant.  Although no doubt in some cases the appropriate form of contact might be face-to-face contact, in this sort of case I would consider that it would be reasonable for the Chief Constable to send to the applicant a letter enclosing a draft of the proposed certificate and inviting his comments thereon.  

26.	If a response to that was to be that the applicant sought a face-to-face contact with a police officer in relation to these matters, the merits of the request would have to be weighed.  But I would not disagree that it was appropriate in a number of cases, including in principle this case, for the contact with the applicant to be by letter.   

27.	In that regard we should remember that the police have recently relocated certain written material which the Chief Constable has aspired to put before this court by way of fresh evidence, in particular written statements by C’s stepdaughter and his former wife in relation to the allegations which the stepdaughter was making against him.  The record of the interview then conducted by the police with C suggests that he had clearly had the opportunity to read those statements.  But that was back in 2006 and it seems to me elementary that, now that they have been found, he may want to comment on the contents of those statements, which of course form the basis of the material which the Chief Constable has aspired to include in his certificate.  But C’s comments may want to go wider than that; and of course he may want to seek to argue that the nature of his proposed employment should lead to a conclusion that the certificate should not be issued in the terms so far suggested.

28.	All that is for the future.  And all that is for the Chief Constable.  It is for those reasons, which largely reflect those given by my Lord, that I too would favour the disposal which he has articulated.

Lord Neuberger, MR:  

29.	I agree with both judgments and would just add this.  Ms Studd, on behalf of the Chief Constable, points to the fact that in the L case, the court concluded that, although the appellant had not been given the opportunity to make comments, the certificate should nonetheless stand. She says that, if we reach a different conclusion in this case, Chief Officers will not know where they stand.  Each case, as my Lords have both indicated, will turn on its own particular facts, and I would point out that there is in fact no inconsistency. 

30.	In the L case, Lord Hope said in para 48: 

“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.

31.	The facts of this case are very different.  First, the information relates to an allegation of impropriety some 15 years before the certificate.  Secondly, the accuracy of the information is challenged, and the challenge receives some support from the fact that the allegation was withdrawn, although it is right to say it was renewed.  Thus, the allegation embodied in the information was denied, unlike in the L case. Thirdly, for the reasons given by the judge, the allegation was arguably not relevant; it is important that I emphasise the word “arguably” because that is not primarily a matter for the court, as Toulson LJ emphasised: it is a matter for the Chief Officer, although it is judicially reviewable. So the facts of this case are a long way from the facts of L.

32.	Subject to those observations I agree with the reasons expressed by my Lords, and accordingly it follows that the appeal against paragraph 1 of Langstaff J's order is dismissed.  The appeal against paragraph 3 of the order is allowed and paragraph 3 is set aside; and it is right to confirm that the confidentiality of the information in paragraph 4 of the order applies equally to any order made in this court.  

Order:  Appeal allowed in part