R (L) v Commissioner of Police of the Metropolis

This appeal considered the proper interpretation and operation of section 115(7) of the Police Act 1997 in relation to enhanced criminal record certificates (ECRCs) and whether the existing practice of disclosure is compatible with article 8 of the European Convention on Human Rights (right to respect for private life). The court held that decisions under section 115(7) engage article 8 because information stored in police files and released in ECRCs can materially affect an applicant's private and professional life. The court concluded that section 115(7) is capable of being applied in a convention‑compatible way by giving full effect to the statutory requirement that the chief officer decide not only whether information "might be relevant" but also whether it "ought to be included" in the certificate, and by ensuring a proportionate balancing of the applicant's article 8 interests against the social need to protect children and vulnerable adults.

On the facts the Supreme Court found the disclosed material was true, relevant and directly connected with the applicant's suitability to supervise children, and that the risk to the children outweighed the prejudicial effects on the applicant's private life. The appeal was dismissed.

The applicant (L) sought judicial review of the Metropolitan Police's disclosure on her enhanced criminal record certificate of material arising from local child protection records concerning her son and her alleged failure to supervise him. The ECRC contained a narrative of the child protection concerns and the fact that the son had later been convicted of robbery. The applicant had applied for work as a casual midday assistant in a school; the application for an ECRC was countersigned by the registered body (the agency).

The issues before the Supreme Court were:

• whether decisions under section 115(7) Police Act 1997 fall within the scope of article 8(1) (whether article 8 is engaged);
• if engaged, whether the statutory provision and the then prevailing approach to disclosure (in particular the Court of Appeal's approach in R (X) v Chief Constable of West Midlands Police [2004] EWCA Civ 1068 / [2005] 1 WLR 65) were compatible with article 8; and
• whether the decision in the applicant's case to disclose the information should be quashed.

The court analysed the statutory scheme (sections 112–115 and related definitions) and the practical operation of local police guidance (MP9), concluding (i) article 8 is engaged because ECRCs record information stored by the police that can have lasting and serious effects on private life and employment; (ii) the statutory wording of section 115(7) requires two distinct judgements by the chief officer — that the information might be relevant and that it ought to be included — and the latter must be given full weight and interpreted compatibly with article 8; (iii) the Court of Appeal's emphasis that information should be disclosed whenever it "might be relevant" had tilted the balance too far in favour of disclosure and needed correction in practice; and (iv) in borderline or doubtful cases the chief officer should offer the applicant an opportunity to make representations before disclosure so that proportionality can be properly assessed. The court declined to issue a declaration of incompatibility because the subsection can be applied compatibly by the approach described.

The appeal was dismissed on the facts: the Supreme Court accepted that the disclosed material was true and directly relevant to the applicant's prospective duties supervising children, and held that the risk to children outweighed the prejudice to the applicant.

Appeal dismissed. The Supreme Court held that decisions under section 115(7) Police Act 1997 engage article 8 and must be exercised proportionately: the chief officer must consider both whether information "might be relevant" and whether it "ought to be included"; the latter requirement must be given full weight so that the applicant's article 8 interests are properly balanced against the need to protect children and vulnerable adults. In borderline cases applicants should be given an opportunity to make representations. On the facts the disclosure was justified and the decision was not quashed.

First instance: Judicial review by Munby J dismissed ([2006] EWHC 482 (Admin)). Court of Appeal (Longmore, Smith and Moore‑Bick LJJ) dismissed the appeal (reported [2008] 1 WLR 681; appeal to the Supreme Court from [2007] EWCA Civ 168). The Supreme Court ([2009] UKSC 3) dismissed the appeal.