B, R (on the application of) v Derbyshire Constabulary

In deciding whether information should be included in an enhanced criminal record certificate, the chief officer must separately consider whether it might be relevant and whether it ought to be included under section 113B(4) of the Police Act 1997. The second question engages Article 8 and requires a fact-specific proportionality assessment. Disclosure requires a pressing need, with neither public protection nor private life receiving automatic priority.

Procedural fairness will typically require the applicant to receive the gist of the proposed disclosure and an opportunity to make written representations before the certificate is issued. Full document disclosure and an oral hearing are exceptional. Judicial review involves intense proportionality scrutiny, rather than merely Wednesbury review, but the court must not substitute its own decision for that of the chief officer.

The claimant, a consultant employed by a Mental Health Trust, challenged decisions concerning an enhanced criminal record certificate issued under section 113B of the Police Act 1997. The certificate disclosed allegations involving violence, alcohol, weapons and firearms storage, although the Crown Prosecution Service advised that there was no realistic prospect of conviction.

The claimant argued that the procedure and disclosure were incompatible with Articles 6 and 8, that the decision was irrational and disproportionate, and that inadequate reasons had been given. The court considered the applicable procedural safeguards, the intensity of review, and whether the proposed revised certificate should contain the disputed information.

1. Article 6. Article 6 did not apply to the chief officer’s non-disciplinary decision-making process. The relevant civil right was the right to practise a profession, but the certificate decision lacked the necessary substantial influence or effect on a later determination of that right. Any Article 8 breach could instead be addressed through judicial review, which itself would attract Article 6 protection.
2. Article 8 and section 113B(4). The two statutory questions were distinct: whether the information might be relevant, and whether it ought to be included. The latter required attention to private life and a fact-specific proportionality assessment. Disclosure was permissible only where there was a pressing need. Relevant considerations could include gravity, reliability, opportunity to rebut, relevance to the employment, lapse of time and impact on the applicant.
3. Procedural safeguards. Article 8 generally required an applicant to be given an opportunity to make representations before an enhanced certificate was issued. Ordinarily this could be done by sending a draft certificate stating the gist of the allegations and inviting written comments. Full disclosure of documents and an oral hearing were not the norm and required particular justification. The claimant should have been consulted before the original certificate was issued, but the later offer of written representations was adequate for any further certificate.
4. Review and outcome. The court applied the more intense proportionality review described in [2001] UKHL 26, while recognising that its function was review, not merits determination. The chief officer was entitled to disclose the material, given the claimant’s employment, the allegations, alcohol concerns and firearms matters. The reasons, read as a whole, adequately addressed relevance, reliability and proportionality. The claim was refused. Costs followed the event and permission to appeal was refused.

First-instance judicial review proceedings. The application was refused by Lord Justice Munby, with Mr Justice Beatson agreeing.