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

When deciding whether information should be disclosed in an enhanced criminal records certificate, a chief officer must assess relevance, credibility, necessity and proportionality compatibly with Article 8 ECHR. Protection of children or vulnerable adults does not automatically take precedence over the applicant’s private-life rights, even where Article 3 risks are alleged. The decision-maker must consider whether allegations are more likely than not to be true and must balance their reliability, seriousness, currency and relevance against the impact of disclosure. In a Human Rights Act claim, the court must determine proportionality itself and assess the facts at the hearing. Disclosure was unlawful where the decision-maker applied too low a credibility threshold, failed to consider significant contrary evidence, and gave insufficient weight to the claimant’s professional and personal interests.

The claimant, an experienced registered nurse, challenged the disclosure of allegations of neglect and ill-treatment in an enhanced criminal records certificate issued for proposed nursing employment. She had been acquitted after the prosecution offered no evidence. Her employer, the Independent Safeguarding Authority, the Crown Prosecution Service and the Nursing and Midwifery Council had each taken action or reached conclusions favourable to her.

The claim alleged breach of Article 8 ECHR and unlawfulness under sections 6 and 8 of the Human Rights Act 1998. The central questions were whether the police had applied the correct statutory and Convention tests, whether Article 3 altered the proportionality exercise, and whether disclosure was proportionate on the evidence available at the hearing.

1. Decision quashed. The disclosure in the enhanced criminal records certificate was unlawful and was quashed. The defendant had applied the wrong legal tests and used a flawed decision-making procedure.
2. Under section 113B(4) of the Police Act 1997, the chief officer had to decide whether the information was reasonably believed to be relevant and whether it ought to be included. Those questions had to be answered compatibly with Article 8. The credibility guidance required consideration of the source’s credibility, circumstances suggesting that the information might be untrue, whether it was so lacking in substance that it was unlikely to be true, and whether reasonable steps had been taken to establish whether the allegations were more likely than not to be true.
3. The decision-maker applied only the lowest credibility threshold. She failed adequately to consider the claimant’s defence, hostility and possible racism by the accusers, the employer’s investigation, contradictory records and evidence from a bank nurse. She also failed to consider credibility and reliability during the Article 8(2) balancing exercise.
4. The legitimate aim of protecting the rights and freedoms of others included protection against Article 3 ill-treatment. However, the alleged engagement of Article 3 did not remove the requirement to justify disclosure under Article 8(2). Article 3 generally left the State a discretion as to the means by which its positive obligations were discharged.
5. In determining the Human Rights Act claim, the court was required to decide whether disclosure was proportionate. It was not confined to reviewing the material available to the original decision-maker. It had to assess the relevant facts at the hearing, while giving appropriate weight to the decision-maker’s expertise.
6. Disclosure pursued a legitimate aim, but it was necessary only if supported by a pressing social need and proportionate to that aim. Relevant considerations included the gravity, reliability, currency and relevance of the information, the opportunity to rebut it, and the impact of disclosure on the applicant.
7. On the evidence, the allegations were more likely than not to be exaggerated or false. The harm to the claimant’s professional life and reputation outweighed the risk identified by the police. A fair balance therefore required non-disclosure, and disclosure breached Article 8 and section 6(1) of the Human Rights Act 1998.