X v West Midlands Police

Disclosure of disputed, non-conviction information in an enhanced criminal record certificate requires a pressing social need and a rigorous, fact-sensitive assessment under Article 8 and the common law. The statutory discretion under section 115 of the Police Act 1997 operates within ordinary principles of fairness and natural justice. The decision-maker must assess objectively whether the information is reliable and relevant, weigh the consequences of disclosure against the risks of non-disclosure, and give adequate reasons. Where the proposed disclosure may seriously damage the subject’s livelihood, procedural fairness ordinarily requires an opportunity to make representations before disclosure. A decision based on an incomplete account of the evidence, failure to address disputed identification, and bare assertion of a balancing exercise is unlawful.

The claimant, a social worker with no convictions, challenged the Chief Constable’s decision to provide allegations of indecent exposure to the Criminal Records Bureau for inclusion in an enhanced criminal record certificate requested for prospective employment. The criminal proceedings had been discontinued after the complainant failed to identify the claimant during a covert identification procedure. The claimant argued that disclosure was substantively unlawful, procedurally unfair, and inconsistent with the ACPO Code of Practice for Data Protection.

The central issues were whether Part V of the Police Act 1997 excluded common law controls on disclosure, what substantive and procedural safeguards applied, and whether the decision-maker had lawfully assessed the reliability, relevance and consequences of the information.

1. Statutory framework and common law. The claim succeeded. Sections 115(7) and 119(2) of the Police Act 1997 confer a wide discretion and impose a duty to respond to a request, but they do not disapply natural justice or procedural fairness. Parliament is presumed not to alter the common law without clear words or necessary implication.
2. Substantive test. The Chief Constable had to comply with Article 8(2), including the requirements of legality, a pressing social need and proportionality. The principles in R v Chief Constable of the North Wales Police ex parte Thorpe [1996] QB 396 and R v A Local Authority in the Midlands ex parte LM [2000] 1 FLR 612 applied, modified to reflect section 115 and the facts. Disclosure of non-conviction information is not automatic merely because the statutory conditions are engaged.
3. The reliability of the information is a threshold question. The decision-maker should not adopt a presumption of guilt or treat subjective belief in guilt as decisive. The information must be viewed objectively and, taken as a whole, be sufficiently reliable and relevant to justify disclosure. The assessment must address the competing risks, the likely impact on the subject, and the public interest in protecting vulnerable people.
4. Application. The decision-makers failed to address the critical fact that the complainant had identified another person and failed adequately to assess the claimant’s case that the information did not relate to him. They also failed to explain how the severe effect on his employment prospects was weighed against the asserted risks. A bare statement that a balancing exercise had been carried out was insufficient.
5. Procedural fairness. The claimant was entitled to an opportunity to make representations on the proposed disclosure. The earlier police interview was not an adequate substitute, because the claimant needed to comment on the proposed disclosure, the subsequent evidence, and the reliance placed on the interview. The failure to provide that opportunity was independently procedurally unfair.
6. ACPO Code. On the facts, retention of the acquittal or discontinued case beyond the 42-day period in section 8.4 paragraph 12 of the ACPO Code breached the Code because identity was in issue and the paragraph 14 exception did not assist. The court did not decide the wider meaning of criminal intelligence under section 8.5, or whether breach of the Code would independently invalidate an otherwise proper section 115 decision.
7. The decision to provide the information was quashed. The claimant was granted the declarations and consequential orders sought in relation to the information.

This was a first-instance judicial review in the Administrative Court. The court refused permission to appeal, while noting that an application could be made to the Court of Appeal.