In R (on the application of A) v Chief Constable of Kent [2013] EWHC 424 (Admin) the Court decided that the Defendant’s disclosure, in an enhanced criminal records check [“ECRC”], of allegations of neglect and ill-treatment made against a nurse, was unlawful and amounted to a breach of Article 8 ECHR. The wrong legal test was applied by the Defendant and the allegations had been shown to be unreliable (and had not been acted on by a number of bodies).

Background

The Claimant (N) was a nurse who applied for a nursing role. The prospective employer asked the Defendant to perform an ECRC on N. Health Care Assistants [“HCAs”] had previously made allegations against N, saying she had neglected and ill-treated elderly care home residents. N had been dismissed but she had appealed. She said the HCAs disliked her management style and the HCAs’ allegations were malicious. A manager (M) had conducted an investigation and concluded that the allegations were unreliable. The allegations had also been referred to the police. M had told the police that the HCAs said they did not like N and that one HCA had made a racist remark about her. The police had referred the allegations onwards to the CPS, but the CPS decided there was insufficient evidence. The allegations were also referred to the Independent Safeguarding Authority (ISA) and the Nursing and Midwifery Council (NMC). Neither body took action against N.

The Defendant’s vetting officer, B, decided to disclose the HCAs’ allegations to N’s prospective employer in an ECRC and (unsurprisingly) her job application was unsuccessful.

N brought a judicial review claim against the Defendant arguing that:

  • B had failed to apply the correct legal tests in assessing the credibility of the allegations and whether it was proportionate to disclose them; and
  • The decision to disclose was an unlawful interference with her Article 8(1) ECHR right to a private life that was not justified under Article 8(2).

Discussion

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Under s113B(4) of the Police Act 1997 (‘the 1997 Act’) the Defendant (through B) was required to provide any information in response to an ECRC application which:

  • He reasonably believed to be relevant for the purpose described in the statement accompanying the application; and
  • In his opinion, ought to be included in the certificate.

By s113B(4A) of the Act, when deciding whether to disclose information, B was bound to have regard to the “Statutory Disclosure Guidance” that had been published by the Secretary of State (‘the Guidance’).The allegations made by the HCAs ultimately turned on issues of credibility/ reliability and Lang J set out the following relevant aspects of that Guidance:

  • The Chief Officer must decide whether he reasonably believes the material to be relevant. Whether the information is sufficiently credible is a factor in deciding this (Guidance, para 18).
  • Thereafter it was necessary to determine whether the disclosure of the information was necessary to pursue a legitimate aim, including consideration of whether there
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    were any other realistic and practical options for pursuing that aim (Guidance, para 22).

  • If disclosure is considered necessary then the question becomes one of proportionality and “(i)n practice this will involve weighing factors underpinning relevancy, such as seriousness, currency and credibility against any potential interference with privacy. All decisions must be proportionate” (Guidance, para 22).

Failure to apply correct legal test

Lang J concluded that the Defendant had applied the wrong legal tests and had adopted by B a flawed decision making procedure. This conclusion encompassed 4 lines of reasoning.

First, the Court found that B failed to properly apply the Guidance, and in particular paragraph 18. B had only asked herself the question “is the information so without substance that it is unlikely to be true?” She had applied too low a threshold when considering credibility. B had failed to properly consider whether the information was from a credible source, whether there were any specific circumstances making it unlikely to be true, or whether all reasonable steps had been taken to ascertain whether the allegations were likely to be true.

Second, Lang J criticised B’s evaluation of the evidence going to credibility:

  • B had not factored in the HCAs’ resentment and apparent racism and made no reference to N’s defence.
  • B had not even read all of the relevant material, including N’s police interview.
  • In reaching her conclusions on credibility, B had made no reference to M’s investigation. M had found that the nursing records and other evidence supported N’s account.

Third, B had failed to pay proper heed to the decisions of the CPS, ISA and NMC. In fact Lang J described B as showing a “cavalier attitude towards the decisions of other bodies” (at [64]). It appears that a carelessly prepared witness statement was behind these uncomplimentary words – B had asserted in her statement that she had taken the NMC’s decision that N did not have a disciplinary case to answer into account. In fact, the NMC had not made that determination until after B’s decision to disclose.

Of course, B was not bound by the decisions of these other bodies. They were applying different tests and had made no findings of fact (see R (Bradley) v Secretary of State for Work and Pensions [2009] QB 114). However on the facts of N’s case, Lang J found it “highly relevant” that 3 other bodies had not acted on the allegations, each of these bodies having “expertise and experience which [B] did not have.”

Fourth, B had failed to consider the “credibility” of the allegations when carrying out the balancing exercise under Art 8(2) (as indicated under para 22 of the Guidance). In the leading case of R(L) v Commissioner of Police of the Metropolis [2010] 1 AC 410 Lord Neuberger had identified reliability as a relevant factor under Article 8(2). Lang J held that N was entitled to have the potential unreliability of the allegations taken into account when proportionality was considered under Article 8(2). This was not done. B had given primacy to the risks of vulnerable adults and Lang J concluded this approach reflected the Court of Appeal’s view in R (X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65. However, that approach had since been rejected by the Supreme Court in L. In X at [37], Lord Woolf had explained the duty to disclose information “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 deciding whether to employ that claimant. In L Lord Hope concluded at [44] – [45] that this approach tilted the balance too far against the applicant, “encouraging the idea that priority must be given to the social need to protect the vulnerable as against the right to respect for the private life of the applicantIt should not longer be assumed that the presumption is for disclosure unless there is a good reason for not doing so“.

Article 8 claim

The Court found that the Defendant’s disclosure of the allegations was in breach of the Claimant’s Article 8 rights.

Lang J explored the standard of review that was appropriate in judicial review claims involving human rights and helpfully reviewed a number of key authorities on this question (at [38]-[48]). She stated she was required to conduct a merits review of B’s decision and was not limited to reviewing whether that decision was lawful or not. She cited Baroness Hale in R (Aguilar Quila) v Secretary of State for the Home Department [2012] 1 AC 621 at [63]:

where delicate and difficult judgments are involved…this court will treat with appropriate respect the views taken by those whose primary responsibility is to make the judgments in question. But those views cannot be decisive. Ultimately, it is for the courts to decide whether or not the Convention rights have been breached.”

Lang J went on to assess the appropriate weight to be given to the views of the Defendant, as expressed through B. It is clear the Court was heavily influenced by the non-action of the CPS, ISA, NMC and indeed, N’s employer. As explained above, the Court was also unimpressed with the quality of B’s investigation and her assessment of the evidence. Lang J herself concluded “on the balance of probabilities, I consider that [the allegations] are either exaggerated or false” [95]. In such circumstances the Court found that when balancing the need to protect vulnerable patients from the risk of ill-treatment against the harm caused to N by disclosure, the balance was “in favour of non-disclosure when it is more likely than not that the allegations are either exaggerated or false” [95].

Learning Points

A is an illustration of the exacting approach that the Court will take when considering a challenge to a police disclosure officer’s decision to reveal information in response to an ECRC request. The disclosure officer’s decision will be scrutinised both for compliance with the relevant guidance and the for the proportionality of the inevitable interference with the individual’s Article 8 rights.

Lang J’s criticisms of the Defendant’s vetting officer act as a useful reminder of the need to carefully examine the credibility of allegations, and that this feeds into the assessment of whether disclosure of information is proportionate under Article 8(2).

Lang J confirmed (obiter) that generally the Defendant was not obliged to make disclosure under s.113B(4) of the Police Act 1997 in order to comply with its Article 3 duties under the ECHR. The Defendant argued that the guidance in L applied only when Article 8 rights were at stake and not when Article 3 rights were in play (it was submitted that one of the allegations made against N amounted to “inhuman or degrading treatment” under Article 3). Lang J described this submission as “misconceived” at [35]and continued “[t]he legitimate aim of protecting the rights and freedoms of others under Article 8(2) includes protection for all rights, including those under Article 3″.