LG v The Independent Monitor

In reviewing disclosure in an enhanced criminal record certificate, the court must make its own assessment of Article 8 proportionality by high-intensity review. It must assess the reliability, gravity, relevance, currency and impact of the information, while recognising that the exercise is evaluative rather than a determination of whether the alleged conduct occurred.

A criminal court’s exclusion of admissions under section 78 of the Police and Criminal Evidence Act 1984 does not determine the proportionality of disclosure under the separate ECRC scheme. A relevant regulator’s decision is an important factor, and an ECRC must present a properly informed and balanced picture. Failure to refer to that decision may make disclosure disproportionate.

The claimant, a community nurse, was acquitted of theft after the trial judge excluded her police interview admissions under section 78 of the Police and Criminal Evidence Act 1984. The Independent Monitor later upheld disclosure in an enhanced criminal record certificate of the allegations, the CCTV evidence, the admissions and the acquittal.

The Nursing and Midwifery Council had separately decided that there was no case to answer in fitness-to-practise proceedings. The certificate did not refer to that decision. The claim for judicial review concerned whether the disclosure was a proportionate interference with the claimant’s Article 8 rights under the Police Act 1997.

1. Proportionality and standard of review. The court had to determine whether inclusion of the information in the ECRC was a proportionate interference with Article 8. This required high-intensity review and the court’s own assessment, rather than Wednesbury review or a margin of discretion. The exercise remained evaluative: the court was not required to decide whether the claimant had in fact stolen the money or to conduct a paper trial.
2. Reliability and the criminal proceedings. Reliability was a factor in the overall balance, not a threshold issue. The CCTV was suspicious and sufficiently reliable, serious and current to justify disclosure in principle. The Recorder’s exclusion of the interview evidence under section 78 was relevant but not determinative. Fairness in the criminal trial and proportionality under the ECRC legislation served different statutory purposes.
3. The NMC decision. The NMC’s finding of no case to answer was relevant but not conclusive. The ECRC scheme and professional regulation pursued distinct objectives. The weight of the NMC decision was reduced because the NMC had not viewed the CCTV or considered the contrasting psychiatric evidence.
4. Complete and balanced disclosure. Following SD v Chief Constable of North Yorkshire [2017] EWCA Civ 1838, the certificate should have included an appropriate reference to the NMC decision. That decision formed part of the material picture which a prospective employer needed in order to make a fair and informed assessment. The certificate was portable and had to stand on its own merits; the fact that the existing employer knew of the NMC decision did not cure the defect.
5. The failure to refer to the NMC decision rendered the disclosure disproportionate. The appropriate remedy was to quash the Independent Monitor’s decision, rather than grant declaratory relief. The ECRC was quashed.

First-instance judicial review proceedings in the Administrative Court. No earlier appellate decision in the same proceedings was stated.