A, R (on the application of) v Kent Constabulary

An enhanced criminal record certificate may disclose unsubstantiated allegations, but disclosure requires a proportionate balance between protecting vulnerable people and the applicant’s Article 8 privacy rights. Relevance, credibility, gravity, currency, the opportunity to rebut, job relevance and the impact on employment must be assessed. Reliability is a factor in the balance, not an automatic threshold. The court conducts high-intensity objective review, but does not ordinarily determine whether allegations are true or substitute its view on policy and discretion. Where the primary decision-maker has no continuing duty, a reviewing court should generally assess proportionality using material available when the decision was made. Later material should ordinarily lead to a fresh application or reconsideration. In this case, serious reliability concerns and the applicant’s good record made disclosure disproportionate.

A, an experienced nurse, challenged the disclosure of allegations of neglect and ill-treatment in an enhanced criminal record certificate. The allegations had led to dismissal, but the dismissal was overturned; the prosecution offered no evidence, the criminal charges ended in acquittal, and the Independent Safeguarding Authority did not bar A.

Lang J quashed the Chief Constable’s decision, declared the disclosure unlawful under Article 8, and ordered damages to be assessed: [2013] EWHC 424 (Admin). The Chief Constable appealed, alleging an impermissible merits review, reliance on post-decision evidence, and errors in the assessment of reliability and the decisions of other bodies.

1. Review and decision-making. The court must determine objectively whether disclosure is a proportionate interference with Article 8 rights. This requires high-intensity review, going beyond traditional judicial review, but it remains review rather than a general merits determination. Appropriate weight must be given to the primary decision-maker’s expertise and judgment: [2001] 2 AC 532; [2007] UKHL 11; [2011] UKSC 46.
2. The statutory guidance required proper consideration of credibility, reliability and specific circumstances which might make allegations unlikely to be true. The delegate applied too low a threshold and failed adequately to assess material including A’s defence, hostility and the internal investigation. The decision-making process was therefore flawed. Procedural defects or failure to use a formulaic structure do not, however, by themselves establish incompatibility where the interference is substantively proportionate: [2006] UKHL 15; [2007] UKHL 19.
3. The court’s task was to assess whether the allegations were reliable enough to justify disclosure, not to decide their truth or falsity. Judicial review is generally unsuitable for resolving disputed facts through live evidence, although fact-finding may be necessary in jurisdictional or other appropriate cases.
4. Where the primary decision-maker is not subject to a continuing duty, the reviewing court should generally assess proportionality on the material available when the decision was made. It should not ordinarily consider later material which the decision-maker has not assessed. The proper course is usually remission or a fresh application, subject to exceptional flexibility. The judge therefore erred in relying on the later NMC decision.
5. This court could nevertheless decide proportionality itself. The allegations were relevant and the CPS decision, acquittal and ISA decision were not conclusive. They were significant, however, particularly because the prosecution had ceased after principal evidence was undermined. The care-home investigation, records, contradictory evidence and A’s good nursing record created serious reliability concerns. Without relying on the later NMC decision, disclosure in the terms used was disproportionate and unlawful. Paragraph 3 of the order was not set aside; the appeal was dismissed.

• Court of Appeal (Civil Division): The appeal against the order below was dismissed. The declaration that the disclosure unlawfully interfered with A’s Article 8 rights was left standing.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Lang J quashed the disclosure decision, declared it unlawful and ordered damages to be assessed: [2013] EWHC 424 (Admin) .