MS, R (on the application of) v The Independent Monitor of the Home Office & Anor

An Independent Monitor reviewing proposed disclosure in an enhanced criminal record certificate must conduct a genuinely independent review. The review need not begin ab initio, but must engage with material objections concerning the reliability and identification of the underlying allegations. The Monitor may seek further information from the police where reasonably required. Before balancing public protection against the applicant’s Article 8 rights, the Monitor must assess the evidential weight of the allegations with care. The decision must give adequate, meaningful reasons and comply with the statutory guidance. A court reviewing the legality of that process need not conduct its own proportionality assessment where the challenge concerns procedural compliance, enquiries or reasons.

The claimant sought judicial review of the Independent Monitor’s decision upholding the proposed inclusion of old, unsubstantiated allegations of indecency towards female taxi passengers in an enhanced criminal record certificate. The allegations had been reviewed by the Metropolitan Police Service and then by the Monitor under the Police Act 1997. The claimant challenged the Monitor’s treatment of his detailed objections, the adequacy of his reasons and his failure to obtain further evidence concerning identification and reliability. The central issues were the nature of the Monitor’s review function and the extent of the enquiries and reasoning required before information could be disclosed.

1. The claim succeeded. The Monitor’s decision was unlawful because the decision letter did not demonstrate the independent, statutorily compliant review required by sections 117A and 119B of the Police Act 1997.
2. The Monitor was not required to investigate the claimant’s grievances from the beginning. However, he had to engage with the claimant’s detailed objections concerning the credibility, reliability and identification of the material underlying the proposed disclosure. The Monitor could give considerable weight to the police’s first-instance assessment, but that did not permit automatic deference or failure to examine the merits.
3. Under section 119B(9), the Monitor could require the police to provide information reasonably required for his review. Where the police review contained apparent non-sequiturs and the central issue was possible mistaken identification, the Monitor should have considered obtaining or examining relevant primary material, such as witness statements or CCTV, where still available.
4. The reliability of the allegations had to be assessed before their weight could be used in the Article 8 proportionality exercise. There was no fixed reliability threshold or tipping point. Serious allegations of limited reliability might still warrant disclosure, while trivial or very old allegations of limited reliability might not. In every case, however, the decision-maker had to reach a considered conclusion about reliability and record adequate reasons.
5. The court was not required to undertake its own high-intensity proportionality review because the claimant pursued defects in the Monitor’s handling of representations, enquiries and reasons. The decision was nevertheless irrational in the Wednesbury sense because the Monitor appeared to misunderstand the police review, treated disputed identification as established and failed to scrutinise the incriminating material with the necessary forensic care.
6. The matter required a lawful reconsideration. The claimant was entitled to an independent review, proportionate enquiries and clear explanations, although the reconsideration might still result in disclosure.

First-instance judicial review proceedings. The judgment does not state any subsequent appellate decision.