C, R (on the application of) v Secretary of State for the Home Department & Anr

When sensitive, disputed or historic information is considered for inclusion in an enhanced criminal record certificate, procedural fairness is fact-specific. Where there is doubt about relevance, substantiation, continuing truth or the applicant’s opportunity to answer, the applicant should normally be invited to comment before disclosure. The opportunity need not involve an oral hearing. A procedural defect normally leads to quashing and reconsideration by the primary decision-maker. The court should not ordinarily make a hypothetical declaration or broad injunction governing future decisions where the material may change. A pre-action letter should identify the representations the applicant would have made.

C sought employment as a welding lecturer and was required to obtain an enhanced criminal record certificate. The Chief Constable disclosed details of a historic sexual allegation, which had been denied, withdrawn and later renewed, and which prevented the proposed employment.

Langstaff J quashed the disclosure decision for procedural defects and breach of Article 8, and also granted a declaration and injunction prohibiting future disclosure. The Chief Constable appealed, challenging both the finding that C should have been given an opportunity to make representations and the additional relief. The central issues were whether the decision should be remitted for reconsideration and whether the court could determine the legality of future disclosure in advance.

The Court of Appeal allowed the appeal in part. Toulson LJ gave the principal judgment, with which Wilson LJ and Neuberger MR agreed.

1. Procedural fairness. The earlier guidance in R (X) v Chief Constable of the West Midlands Police had been disapproved by the Supreme Court in R (L) v Commissioner of Police of the Metropolis. The decision had therefore been made under guidance which no longer represented the law.
2. Under the guidance in R (L), whether an applicant should be invited to make representations before disclosure is a fact-specific question. Relevant considerations include doubt about the information’s relevance or substantiation, whether it remains true, whether the applicant has had a fair opportunity to answer, the historical nature of the information, the proposed employment and the risk of disproportionate harm. On the facts, the age of the allegation, its withdrawal and renewal, C’s denial and the nature of the proposed post meant that fairness required an opportunity to comment. It could not be said that nothing C might say could rationally influence the decision.
3. The opportunity need not involve an oral hearing. In an appropriate case, a letter enclosing a draft certificate and inviting written comments may suffice. Any request for face-to-face contact must be assessed on its merits.
4. The ordinary remedy for a procedurally flawed public-law decision is to quash it and leave the primary decision-maker to reconsider. The Chief Constable was the primary decision-maker, and a fresh decision might be based on different material. The judge therefore erred in granting a hypothetical declaration and a broad injunction governing future applications.
5. The court also gave practical guidance on the pre-action protocol: where failure to invite representations is challenged, the proposed representations should ordinarily be set out in correspondence and considered unless wholly meritless.

The quashing of the decision was upheld. The declaration and injunction were set aside, while the confidentiality order continued to apply.

1. Court of Appeal (Civil Division): on 19 January 2011, the appeal was allowed in part. The quashing of the decision was upheld, but the declaration and injunction were set aside.
2. High Court of Justice, Queen’s Bench Division, Administrative Court: Langstaff J, on 24 May 2010, quashed the disclosure decision and granted declaratory and injunctive relief.