L, R (on the application of) v Commissioner of Police for the Metropolis & Anor

Section 115(7) of the Police Act 1997 permits disclosure of any information which might be relevant to an applicant’s suitability for a sensitive position and ought to be included. The information is not confined to actual or potential criminal activity. The statutory application is the trigger, and the common-law presumption against disclosure cannot be assumed to remain. Clear statutory wording is not restricted by a long title, headings, policy materials or later official guidance. Loss of employment alone does not engage Article 8. An Article 8 challenge may fail where the judge has carefully assessed proportionality and a factual error does not invalidate the decision.

L sought judicial review of the Metropolitan Police Commissioner’s decision to disclose non-conviction information in an enhanced criminal record certificate required for work supervising children. The certificate referred to concerns about L’s care and supervision of her son, who had been placed on the Child Protection Register.

Munby J dismissed the claim, holding that the statutory scheme permitted the disclosure and complied with the European Convention on Human Rights: [2006] EWHC 482 (Admin). The appeal concerned whether section 115(7) of the Police Act 1997 was limited to actual or potential criminal activity, and whether the disclosure was disproportionate under Article 8.

Longmore LJ gave the judgment, with Smith LJ and Moore-Bick LJ agreeing.

1. Disposition. The appeal was dismissed and the renewed application for permission to appeal on the Article 8 issue was refused.
2. Statutory scope. The statement accompanying an enhanced criminal record certificate application is the trigger for section 115(7) of the Police Act 1997. Once that trigger exists, the statutory limits are that the chief officer considers the information might be relevant to the stated suitability purpose and ought to be included. Relevance is not confined to actual or potential criminal activity. It includes any information bearing on suitability for a position involving the care or supervision of children.
3. Effect on the common law. The statutory scheme reverses the previous presumption against disclosure of relevant information. The court could not assume that other aspects of the common law had been preserved. The statute had to be construed by reference to its enacted language and permissible aids to construction.
4. Constructional aids. The Green Paper, White Paper, ministerial statement and official guidance did not restrict the natural meaning of section 115(7). Hansard could not be consulted because the provision was not ambiguous and the Minister had not addressed the precise question before the court. The long title and Part V heading could guide general objectives but could not operate as a straightjacket on clear statutory words. The breadth of section 115(5), including purposes such as gaming and lotteries, also supported the wider construction.
5. Article 8. The judge had carefully assessed the police decision for himself, and the police had considered the human-rights implications of disclosure. The single factual error identified by L did not invalidate the decision. Further, loss of employment or of an opportunity for employment did not, by itself, engage Article 8.

1. Court of Appeal (Civil Division). The appeal from the Administrative Court was dismissed, and the renewed application for permission to appeal on the Article 8 issue was refused.
2. High Court of Justice, Queen’s Bench Division (Administrative Court). Munby J dismissed the judicial review claim, holding that the statutory regime permitted disclosure and that the decision complied with the European Convention on Human Rights: [2006] EWHC 482 (Admin).