J, R (on the application of) v The Chief Constable of Devon & Cornwall

Disclosure of adverse information in an enhanced criminal record certificate requires two separate judgments: whether the information might be relevant and whether it ought to be included. The latter requires a fact-sensitive proportionality assessment under Article 8, balancing protection of vulnerable people against the applicant’s private life. Relevant factors include gravity, reliability, an opportunity to respond, relevance to the role, elapsed time and the impact of disclosure. There is no presumption in favour of disclosure. In borderline cases involving disputed and unproved allegations, representations will usually be appropriate. Cumulative suspicion of occasional heavy-handedness, unsupported by established wrongdoing, may be insufficient to justify disclosure.

The claimant, a registered nurse, challenged the inclusion of information about disputed allegations concerning her treatment of elderly residents in the “other relevant information” section of enhanced criminal record certificates. The defendant reviewed the decision and amended the wording to include both the allegations and the claimant’s account, but maintained that disclosure was proportionate.

The claimant sought judicial review, arguing that the information was unreliable, disproportionate and disclosed without a prior opportunity to make representations. The central issues were the applicable Article 8 proportionality assessment, the significance of the claimant’s representations, and whether the two sets of allegations justified disclosure when considered cumulatively.

1. Applicable statutory and human-rights framework. Under Police Act 1997, section 113B(4), the chief officer must consider both whether information might be relevant and whether it ought to be included. The latter question engages Article 8 and requires a proportionality assessment. There is no presumption that disclosure should occur unless there is a good reason to withhold it.
2. Factors and judicial assessment. The court applied the approach in R (L) v Commissioner of Police of the Metropolis [2010] 1 AC 410. Relevant considerations included the gravity and reliability of the information, whether the applicant had an opportunity to rebut it, its relevance to the proposed employment, the time elapsed and the impact on employment and private life. The ultimate proportionality decision was for the court, although appropriate weight had to be given to the decision-maker’s expertise and institutional position, applying Huang v Secretary of State for the Home Department [2007] 2 AC 167.
3. Opportunity to respond. The initial disclosure decision was borderline. Because previously non-disclosable material was revived by new, disputed evidence, fairness required an opportunity for the claimant to make representations before disclosure. The guidance in R (C) v Chief Constable of Greater Manchester Police [2011] EWCA Civ 175 and R (B) v Chief Constable of Derbyshire Constabulary [2011] EWHC 2362 (Admin) supported that conclusion, while recognising that the question remained fact-specific.
4. Application to the allegations. The 2007 incident was treated at the time as a poor manual-handling incident, followed by training, rather than deliberate assault. The 2011 allegations were unproved, disputed and affected by serious reliability concerns. Taken separately or cumulatively, they established no sufficiently weighty risk to outweigh the claimant’s Article 8 rights. The fact that the amended disclosure included her account did not cure the harm caused by disclosure itself.
5. Disposition. The claimant was entitled to a declaration that the disclosure breached Article 8. The disclosure decisions, including the decision recorded in the letter of 24 April 2012, were quashed. Any question of just satisfaction was left to written submissions.

First-instance judicial review proceedings in the Administrative Court. Permission was granted by Collins J on 31 August 2012. The claim was determined by Foskett J, who granted declaratory relief and quashed the challenged disclosure decisions.