R (on the application of L) v Commissioner of Police of the Metropolis

Disclosure of police-held information in an enhanced criminal record certificate will ordinarily fall within article 8 because it affects private life, reputation and employment prospects. Information may be disclosed under section 115(7) of the Police Act 1997 only where the chief officer separately concludes that it might be relevant and ought to be included.

The second requirement demands a proportionate balance between safeguarding vulnerable people and respecting private life. Neither interest has automatic precedence, and there is no presumption in favour of disclosure. Relevant considerations include the information’s gravity, reliability, age and connection to the particular position, any opportunity to answer it, and the likely effect of disclosure. In doubtful or borderline cases, the applicant should ordinarily be invited to make representations before disclosure.

The appellant obtained work through an employment agency as a midday assistant supervising children at a secondary school. An enhanced criminal record certificate disclosed police-held information that her son had been placed on the child protection register for neglect and that she had allegedly failed to supervise him adequately or co-operate with social services. Her employment was then terminated.

Munby J dismissed her application for judicial review: [2006] EWHC 482 (Admin). The Court of Appeal dismissed her appeal: [2007] EWCA Civ 168; [2008] 1 WLR 681. Before the Supreme Court, she sought to quash the disclosure decision and contended that section 115(7) of the Police Act 1997, as previously interpreted, was incompatible with article 8 of the European Convention on Human Rights.

The central issues were whether article 8 applied to disclosure of police-held information and whether section 115(7) provided a proportionate mechanism for balancing private life against the protection of children and vulnerable adults.

1. Disposition. The Supreme Court unanimously dismissed the appeal. Lord Hope delivered the leading judgment. Lord Saville adopted his reasons, Lord Brown agreed with Lord Hope and Lord Neuberger, and Lord Neuberger reached the same conclusions in further reasons. Lord Scott agreed in the result but differed on the effect of article 8.

2. Article 8. The majority held that decisions under section 115(7) of the Police Act 1997 are likely to fall within article 8(1) in every case. Police-held information may concern private events, and even formerly public information can acquire a private character through systematic retention and later disclosure. An adverse certificate can also seriously impair reputation, relationships, earning capacity and access to a chosen occupation. The applicant’s formal application or consent did not waive Convention protection because an enhanced certificate was, in practical terms, a condition of access to the relevant employment.

3. The statutory test. Section 115(7) contains two separate requirements. The chief officer must decide whether information might be relevant to the stated purpose and whether it ought to be included. The second requirement calls for a proportionality assessment. Neither the protection of vulnerable people nor the applicant’s private life has automatic precedence. Relevant considerations may include the gravity and reliability of the information, its connection with the particular position, its age, whether the applicant has had an opportunity to answer it, and the likely consequences of disclosure.

4. Representations and compatibility. The approach in R (X) v Chief Constable of the West Midlands Police [2004] EWCA Civ 1068, which favoured disclosure unless there was a good reason to withhold it, struck the balance too far against the applicant. There should be no presumption favouring disclosure. In doubtful or borderline cases, particularly where allegations are untested, relevance is uncertain, or the information is historical or vague, the chief officer should ordinarily invite representations before making the final decision. Giving full weight to “ought to be included” made section 115(7) compatible with article 8 under section 3(1) of the Human Rights Act 1998. No declaration under section 4 was appropriate.

5. Application and separate reasoning. Although insufficient weight had initially been given to the appellant’s private life, the disclosed facts were true and bore directly on her suitability to supervise children. The safeguarding risk outweighed the serious prejudicial effects, so the decision was not quashed. Lord Scott considered that an applicant who requested a certificate authorised reasonable disclosure of relevant information and endorsed the priority accorded to safeguarding in R (X). That view did not command the majority.

1. United Kingdom Supreme Court: In R (on the application of L) v Commissioner of Police of the Metropolis [2009] UKSC 3, the court unanimously dismissed the appeal, while correcting the legal approach applied below.
2. Court of Appeal: The court dismissed the appellant’s appeal from Munby J: [2007] EWCA Civ 168; [2008] 1 WLR 681.
3. High Court, Administrative Court: Munby J dismissed the application for judicial review: [2006] EWHC 482 (Admin).