X, R (on the application of) v Chief Constable of West Midlands Police & Anor

Under section 115(7) of the Police Act 1997, a chief police officer must disclose information which might be relevant to the protected employment and ought to be included in an enhanced criminal record certificate, unless there is a good reason against disclosure. The statutory scheme creates no presumption against disclosure.

Common law fairness does not ordinarily require the applicant to receive a further opportunity to make representations before disclosure. The procedure, the applicant’s previous opportunities to answer the allegations and the statutory correction mechanism are relevant. Disclosure may nevertheless be disproportionate where the matter is trifling or the information is so unlikely to be correct that disclosure is unjustified. The reviewing court must assess the lawfulness of the chief officer’s opinion on the material then available, rather than form its own view of relevance.

The Chief Constable appealed from Wall J’s decision, [2004] EWHC 61 (Admin), quashing the disclosure of non-conviction information in X’s enhanced criminal record certificate. The certificate recorded two allegations of indecent exposure, the resulting charges and their discontinuance after the complainant failed to identify X.

Wall J held that the substantive requirements for disclosure had not been met and that X should have been allowed to make representations before disclosure. The principal questions on appeal were whether section 115(7) of the Police Act 1997 created a presumption against disclosure, what procedural fairness required, and whether disclosure was compatible with article 8 of the Convention.

1. Appeal allowed. The orders made by Wall J were set aside and the judicial review claim was dismissed. X’s cross-appeal was also dismissed.

2. The Lord Chief Justice held that section 115(7) of the Police Act 1997 created no presumption against disclosure. Where information might be relevant to work involving children or vulnerable adults, the chief officer was under a duty to disclose it unless there was a good reason not to do so. Parliament intended prospective employers to receive potentially relevant information even though the underlying allegation could not be proved.

3. The statute did not exclude the common law requirement of procedural fairness, but fairness took its content from the statutory scheme and the facts. It imposed no legal obligation to give X a further opportunity to make representations before disclosure. X had been extensively interviewed, could seek correction of the certificate under section 117 and could put his account before the prospective employer. Fairness did not require additional police investigation to obtain objective confirmation of his account.

4. On the assumed basis that article 8(1) applied, the statutory disclosure regime was compatible with article 8(2). Disclosure might be disproportionate if the information concerned a trifling matter or was so unlikely to be correct that disclosure was unjustified. Neither situation arose. The Deputy Chief Constable had considered proportionality and was entitled to conclude that the recent and serious allegations might be relevant.

5. The statutory responsibility for forming the relevant opinion belonged to the chief officer. The reviewing court could examine legality, fairness and proportionality, but could not substitute its own assessment of relevance or rely on material which had not been before the decision-maker.

6. Mummery LJ agreed and emphasised the legitimate interests and responsibilities of prospective employers and the vulnerable people whom the scheme protects. Laws LJ agreed with both judgments. Mummery LJ reserved his position on whether article 8(1) applied to information about a discontinued prosecution because that issue had been conceded and was not argued.

• Court of Appeal (Civil Division): The Chief Constable’s appeal was allowed. The orders below were set aside, the judicial review claim and X’s cross-appeal were dismissed, and permission to appeal was refused: [2004] EWCA Civ 1068.
• Administrative Court: Wall J quashed the decision to disclose the information and restrained its future disclosure under sections 115(7) and 119(2) of the Police Act 1997: [2004] EWHC 61 (Admin).