Nakash, R (on the Application of) v Metropolitan Police Service & Anor

Where police-held material is requested by a professional regulator, relevance alone does not determine whether disclosure is lawful. The police, as primary decision-maker, must assess the competing interests under Article 8, including the material’s relevance, confidentiality, the extent of the interference and the circumstances in which it was obtained.

Material obtained unlawfully is not thereby immune from disclosure. Where it is materially relevant to a regulator’s broader fitness-to-practise investigation, disclosure to the regulator may remain proportionate, even if the material would not have been admissible in criminal proceedings. The regulator, rather than the judicial review court, ordinarily determines what investigative significance the material has.

The claimant, a doctor, sought judicial review of the Metropolitan Police Service’s decision to disclose a police interview and a one-page extract from private Skype correspondence to the General Medical Council under Medical Act 1983, section 35A.

The material had been obtained during an investigation that included unlawful arrest, search and seizure, and improper interview practices. The claimant had been acquitted of criminal charges, and the material had not been used at trial. The central issues were whether the material was relevant to the GMC’s fitness-to-practise investigation and whether disclosure was justified under Article 8.

1. Judicial review claim dismissed. The MPS was entitled to disclose both documents to the GMC pursuant to its request under section 35A of the Medical Act 1983.
2. Section 35A confers a broad disclosure power serving an important regulatory purpose. Its exercise remains subject to Article 8. Under Woolgar v Chief Constable of Sussex Police and UKCC [2000] 1 WLR 25 (CA), the police are the primary decision-maker, but must balance the public interest in effective professional regulation against the individual’s privacy and confidentiality.
3. The MPS had failed to demonstrate that it had carried out the required careful balancing exercise. The court therefore performed that assessment afresh, considering relevance, confidentiality, the extent of the interference, the circumstances of acquisition and the legitimate aim under Article 8(2).
4. The Skype extract was relevant even though it was not directly probative of the alleged criminal conduct. The GMC’s inquiry was broader than the criminal investigation and could properly examine the circumstances surrounding the allegation, professional behaviour and boundaries with vulnerable patients. Its unlawful seizure did not outweigh the public interest in disclosure.
5. The police interview was also relevant. It contained the claimant’s contemporaneous account, including matters concerning the chaperone, professional duties and his conduct towards patients. The interview was to be considered as a whole. Although obtained in troubling circumstances, it had not been inaccurately transcribed, the claimant had been cautioned and advised of his rights, and there was no evidence that his will had been overborne.
6. The fact that the material was inadmissible or unused in the criminal proceedings did not prevent disclosure to the GMC. Disclosure for the confidential purpose of investigating fitness to practise was a proportionate response to the protection of public health and safety and the rights and freedoms of others.

The claim was commenced on 16 January 2014. Permission to apply for judicial review was granted on the papers by Hamblen J. The High Court (Administrative Court) dismissed the claim.