QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (B)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
|THE COMMISSIONER OF POLICE OF THE METROPOLIS
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Mr Steven Kovats (instructed by the Treasury Solicitor) for the defendant
The interested party was neither present nor represented
Hearing date: 15 February 2006
AS APPROVED BY THE COURT
Crown Copyright ©
Mr Justice Munby :
The legal framework
"(1) The Secretary of State shall issue an enhanced criminal record certificate to any individual who (a) makes an application under this section in the prescribed manner and form countersigned by a registered person,
(2) An application under this section must be accompanied by a statement by the registered person that the certificate 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)
(3) A position is within this subsection if it involves regularly caring for, training, supervising or being in sole charge of persons aged under 18."
""exempted question" means 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)."
"Subject to the provisions of any order made under subsection (4) below, where a question seeking information with respect to a person's previous convictions, offences, conduct or circumstances is put to him or to any other person otherwise than in proceedings before a judicial authority
(a) the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions, and the answer thereto may be framed accordingly; and
(b) the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent conviction or any circumstances ancillary to a spent conviction in his answer to the question."
It is common ground that the relevant order has been made by the Secretary of State under section 4(4) of the 1974 Act.
"An enhanced criminal record certificate is a certificate which
(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."
"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."
"(1) Where an applicant for a certificate under any of sections 112 to 116 believes that the information contained in the certificate is inaccurate he may make an application in writing to the Secretary of State for a new certificate.
(2) The Secretary of State shall consider any application under this section; and where he is of the opinion that the information in the certificate is inaccurate he shall issue a new certificate."
The functions of the Secretary of State are, of course, performed by the Criminal Records Bureau ("CRB").
" it is useful to note the following significant aspects of the statutory scheme involving ECRCs.
(i) The whole process of obtaining an ECRC is initiated by the person to whom the certificate will relate. The certificate is for his purposes to enable him to obtain employment which, at least in practical terms, will not be available to him unless he obtains a certificate.
(ii) The certificate will only be seen by the applicant and his prospective employer.
(iii) The applicant has the opportunity to persuade the Secretary of State to correct the certificate.
(iv) The Chief Constable is under a duty to provide the information referred to in section 115(7). This is subject to the requirement that the information might be relevant and ought to be included in the certificate. What might be relevant and what ought to be included is a matter for the opinion of the Chief Constable.
(v) The applicant is in a position to provide additional information if he wishes, whether in conflict with the certificate or not, to the prospective employer and it is the prospective employer who will make the decision as to whether he should or should not be employed."
" Having regard to the language of section 115, the Chief Constable was under a duty to disclose if the information might be relevant, unless there was some good reason for not making such a disclosure.
 This was obviously required by Parliament because it was important (for the protection of children and vulnerable adults) that the information should be disclosed even if it only might be true. If it might be true, the person who was proposing to employ the claimant should be entitled to take it into account before the decision was made as to whether or not to employ the claimant. This was the policy of the legislation in order to serve a pressing social need."
"The disclosure, if made, would obviously interfere with his right to a private life Disclosure of allegations of child sex abuse is on the face of it a substantial interference with a person's right to a private life: see R v Chief Constable of North Wales Police ex p Thorpe per Buxton J at 416BC, approved by the Court of Appeal at 429B".
Moreover, it may well be, notwithstanding Mummery LJ's reservation of the point in R (X) v Chief Constable of the West Midlands Police  EWCA Civ 1968,  1 WLR 65, at para , that Article 8 is also engaged inasmuch as disclosure in a case such as this can impact very damagingly on someone's employment prospects: see the later decision of the Strasbourg court in Sidabras v Lithuania (2004) 42 EHRR 104 at para . I am prepared to assume as much, though without deciding the point.
"It is helpful to note that while it is accepted by both parties that the information which is included in the ECRC might offend against article 8(1), it is not suggested that the legislation itself contravenes article 8. No doubt this is because disclosure of the information contained in the certificate would be "in accordance with the law" and "necessary in a democratic society", in the interests of public safety and for the prevention of crime and for the protection of the rights and freedoms of others. This country must, through its legislature, be entitled to enable information to be available to prospective employers, where the nature of the employment means that particular care should be taken to ensure that those who are working with the appropriate categories of persons can be relied on to do so, without those in their care coming to harm if they are under the age of 18 or vulnerable adults."
" how can the Chief Constable's decision to disclose be challenged under article 8? As already indicated, the Chief Constable starts off with the advantage that his statutory role is not in conflict with article 8, because the statute meets the requirements of article 8(2). It follows also, that as long as the Chief Constable was entitled to form the opinion that the information disclosed might be relevant, then absent any untoward circumstance which is not present here, it is difficult to see that there can be any reason why the information that "might be relevant", ought not to be included in the certificate. I accept that it is possible that there could be cases where the information should not be included in the certificate because it is disproportionate to do so; the information might be as to some trifling matter; it may be that the evidence made it so unlikely that the information was correct, that it again would be disproportionate to disclose it. These were not, in my judgment, the situations on the facts before the Chief Constable."
"The information which was disclosed, was information which a responsible employer in this field would want to know before making a decision as to whether to employ the claimant. The claimant is seeking to prevent that information being available. In my judgment, the making available of that information in accordance with the law, as occurred here, could not be contrary to article 8(2)."
" Wall J was not required, either on the grounds of fairness or because of article 8(2), to, in effect, form his own opinion as to what might be the relevance of the disclosed information.
 The statute properly conferred the responsibility of forming an opinion on the Chief Constable and, having formed that opinion perfectly properly that certain information might be relevant, it is not for the courts to interfere."
"In my judgment it imposes too heavy an obligation on the Chief Constable to require him to give an opportunity for a person to make representations prior to the Chief Constable performing his statutory duty of disclosure."
He continued at paras -:
" If he had had an opportunity to make representations to the Chief Constable, that would only have assisted him if he could have persuaded the Chief Constable that there was no truth in the allegations. I do not see how being in a position to make representations could have achieved such an outcome. Before this court and the court below, the claimant has had an opportunity to make all the representations he could possibly make, and the only matter as it seems to me of significance, to which he could draw attention, was the difference between the features of the person whom he says R identified, and his own features. For this information to be of any significant value, it would require objective confirmation and, as far as I am aware, that objective confirmation is not available. For it to be obtained would require further police investigations, and activities of that sort are outside the requirements of fairness in the case of this statutory structure.
 While recognising fully how damaging the disclosure could be to the claimant, because of the public interest in the information being made available to the prospective employer, unless the Chief Constable was to be persuaded that there was a strong probability that this was a case of mistaken identity, the Chief Constable was entitled to be of the opinion that the information still might be relevant so that it had to be disclosed. This being the situation, even if the Chief Constable was under an obligation to provide an opportunity for representations as contended, it is difficult to see how that opportunity could have achieved a situation where the need for disclosure did not still meet the "might be relevant" requirement."
"Furthermore, whatever the shortcomings in the interview by the police, the interview was extensive and the claimant had had during that interview ample opportunity to set out his account. More importantly, under section 117, the claimant is given an opportunity to correct the certificate. An opportunity which he has not taken advantage of. In addition, as already indicated, the claimant was in a position to give his account of what happened to the person who it was most important should hear that account, namely his proposed employer."
"[B] born [date], in December 2000, had his daughter [X] removed from his custody under the authority of a Police Protection Order. He was also in the same premises when his friend twice vaginally and anally raped his daughter. The friend was sentenced to 3 years imprisonment. [X] was placed on the Child Protection Register. In January 2001 the applicant was arrested following an allegation that he had raped his daughter. He denied all the allegations. This allegation was not proceeded with. There is evidence of the daughter having a history of anal abuse."
"By way of additional information, I would state the following:
1 On the Friday before Christmas 2001 my daughter was being examined at the Hospital. A Sgt [S] at some point in the evening told me that there was no evidence to suggest that I had interfered with my daughter. This was stated in the presence of a social worker from [the local authority] although I do not have his name.
2 In July 2002 no findings were made against me in the High Court.
3 I have a copy letter from my solicitors Joy Merriam and Company who acted for me at the time when the allegations were made. This letter confirms that, "no further action will be taken against me in relation to this matter and this is the end of the matter." Verification as to the authenticity of this latter can be provided by my existing solicitors, Hereward & Foster.
4 My daughter is not subject to Adult Protection Order and I have unrestricted access to her.
5 Accordingly, I consider that the information contained in the disclosure to be prejudicial and misleading. I therefore seek deletion as to any reference that I have at any time engaged in any form of sexual activity with my daughter."
"We have investigated the matter with our data sources and they are satisfied that the information held is correct and no further action will be taken regarding your dispute."
The facts: B's case
i) In the first place it is said that "further evidence emerged during the care proceedings suggesting that [X] had been joking when she said that her father had "shagged" her." (This contention is elaborated in paragraph 15 of the skeleton argument.)
ii) Secondly, "evidence emerged during the care proceedings which suggested that [X] had almost certainly been abused by someone other than her father. It was suggested during the care proceedings that [X] had been sexually active and might have been pressurised by third parties to engage in prostitution."
iii) Thirdly, "evidence also emerged during the care proceedings suggesting that [X] probably had been sexually abused by someone when she was a child when she was very young" at a time when she was living with her mother and "had little if any contact with her father."
iv) Fourthly, and in many ways most importantly, reliance is placed on Dr W's evidence in the care proceedings. Dr W in a report dated 26 June 2001 expressed the opinion that the appearance of the scarring (that is, its appearance when X was examined on 16 December 2000) "was not compatible with abuse having occurred within the previous 24-48 hours", the fact that the scar had healed indicating that "the scar is months old it could be months, it could be years". Pointing out that "anal abuse in children rarely causes any abnormal physical findings on examination" and that "therefore it is possible for a child to be anally abused on many occasions over a short or long period of time without there being any physical findings", Dr W opined that it was "impossible to know whether the anal abuse had been on one occasion or many occasions and over what period of time" and that the appearance of the scarring "does not exclude abuse having occurred in previous 24-48 hours and that abuse not leaving any abnormal findings."
"The significance of the medical evidence that emerged in June 2001 was that if [X] had indeed been repeatedly abused it might suggest that the culprit was someone who had considerable contact with her, which may have justified suspecting her father. If, however, she had been abused on a handful of occasions, or just once, there is no particular reason to suspect her father as opposed to anyone else."
i) First, at the final hearing of the care proceedings the local authority did not seek any finding that B had sexually abused his daughter, merely a finding that he had failed to protect her from sexual abuse by others. B's solicitor, who has considerable experience of care cases (but who, it is to be noted, was not involved in the care proceedings), has filed a statement in which she opines that it was "likely that if the local authority had considered that there was sufficient evidence to sustain a finding that [B] had abused his daughter they would have sought it."
ii) Secondly, attention is drawn to the fact that X, who it will be appreciated has now turned 18, is spending long periods at home with B, seemingly without objection on the part of the local authority. "Given [X's] learning difficulties, one would have thought that if the local authority believed that [B] sexually abused her it would certainly have intervened."
This part of B's case is summarised in the assertions that "at the end of the lengthy care proceedings the local authority did not conclude that [B] had sexually abused [X]" and that "the fact that the local authority, which has intimate knowledge of the case after the care proceedings and continues to have contact with [X], has not intervened, speaks volumes about the conclusion it reached on the abuse allegation and the risk [B] poses to [X]."
The facts: the significance of the care proceedings
"it is satisfied
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child's being beyond parental control."
Secondly, it is the stage at which the court makes the primary factual findings on the basis of which it then proceeds to the disposal stage.
The point of principle
"In January 2001 the applicant was arrested following an allegation that he had raped his daughter. He denied all the allegations. This allegation was not proceeded with. There is evidence of the daughter having a history of anal abuse."
If one asks oneself, Is that information "accurate"? the answer again is clear. The certificate sets out a number of facts. None of these facts is, or could be, disputed by B. They are all factually accurate. So the information in the certificate is accurate.
"to enable information to be available to prospective employers, where the nature of the employment means that particular care should be taken to ensure that those who are working with the appropriate categories of persons can be relied on to do so, without those in their care coming to harm if they are under the age of 18 or vulnerable adults."
He explained the legislative policy at para :
"it [is] important (for the protection of children and vulnerable adults) that the information should be disclosed even if it only might be true. If it might be true, the person who was proposing to employ the claimant should be entitled to take it into account before the decision was made as to whether or not to employ the claimant. This was the policy of the legislation in order to serve a pressing social need."
" The Chief Constable is under a duty to provide the information referred to in section 115(7). This is subject to the requirement that the information might be relevant and ought to be included in the certificate. What might be relevant and what ought to be included is a matter for the opinion of the Chief Constable
 Having regard to the language of section 115, the Chief Constable was under a duty to disclose if the information might be relevant, unless there was some good reason for not making such a disclosure."
" there was independent evidence from a consultant paediatrician which, if accepted, tended to support the truth of the allegations. It cannot, in my view, be said that the evidence of possible wrongdoing was so weak, so unreliable or so trifling that it cannot be true or, putting it the other way round, that it does not meet the test laid down by the Lord Chief Justice that it "only might be true". Mr Squires, however, seeks to distinguish the case of X on this basis: that the allegations against his client were made more than four years ago. The ECRC was applied for and issued in 2004. The position has changed, in that care proceedings brought in respect of the claimant's daughter were eventually dealt with on the basis not that the claimant had himself abused his daughter, but rather that he had, as in his evidence he accepts he had, failed to protect her from a sexual offence committed by a friend or acquaintance. Mr Squires argues that this and other factual points which he wishes to press tend to show that the allegations against his client were at any rate now are so weak as to be incapable of belief.
 I regret to say that I am not persuaded. It may be that there are exceptional cases where supervening events require, as a matter of law, that the chief officer decline to include allegations originally made in an ECRC because it is no longer possible to reasonably say they might be true. An example might be where a court finds that an allegation was manifestly untrue. If a chief officer of police failed to take account of that, that might well be judiciary reviewable notwithstanding the decision in X. But it does not seem to me that there is in reality anything to distinguish between the Commissioner's position in the present case from that of the Chief Constable in the case of X. Accordingly, while I have sympathy with the case which Mr Squires seeks to put forward against the Commissioner, it does not seem to me, in the light of X, that it is arguable. I therefore refuse permission as against the Commissioner."
I respectfully agree.
"I and my colleagues at the CRB regard the question of what information should be included in an ECRC under section 115(7), as distinct from information obtained from 'central records', as one for the chief officer of police and not for us. Indeed, we do not have any resources which would enable us to form any reliable view upon the relevance of the material so included, or upon whether or not it ought to be included in an ECRC. Those are matters which depend on forensic analysis by the police bearing in mind the context which their files, and personal experience, provides. We have no power to require such information to be provided to us, and even if it were, it is unlikely that we would have the expertise or skills reliably to makes such assessments."
"However, not withstanding our limited powers and obligations under section 117, as a matter of practice the CRB does process, but does not determine, disputes which go to the relevance of the material in the ECRC, the truth or justification for the matters which are reflected in the ECRC, and to the question of whether or not it ought to have been included in the ECRC. If, in any particular case, the chief officer of police, having considered such dispute, referred on to him by the CRB, alters his view as to whether or not the information was relevant or should have been included in an ECRC, then the CRB would be bound under section 117(2) to issue a new ECRC. This is because the ECRC as already issued would no longer accurately reflect the information now provided by the chief officer of police under section 115(7). The information in the certificate would therefore be inaccurate, as under section 115(6) the information in the certificate should be that which has been provided by a chief officer of police under section 115(7)."