SD, R (On the Application Of) v The Chief Constable of North Yorkshire & Anor, Court of Appeal - Civil Division, November 15, 2017, [2017] EWCA Civ 1838

Resolution Date:November 15, 2017
Issuing Organization:Civil Division
Actores:SD, R (On the Application Of) v The Chief Constable of North Yorkshire & Anor

Neutral Citation Number: [2017] EWCA Civ 1838

Case No: C1/2015/2662/QBACF






[2015] EWHC 2085 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 15/11/2017

Before :





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Between :

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Mr Hugh Southey QC (instructed by Thompsons) for the Appellant

Mr Ian Skelt (instructed by Force Legal Department) for the Respondent

Hearing date: 19 October 2017

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Judgment Approved

Draft 21 November 2017 13:02 Page 17

Lord Justice Beatson :

  1. Overview:

    1. In order to protect vulnerable groups, including children, provision is made by the Police Act 1997, In this judgment, save where otherwise stated, all references to statutory provisions are to this Act. as amended, for the Disclosure and Barring Service (``the DBS'') to issue an enhanced criminal record certificate (``ECRC'') to those applying to work with such groups. The information disclosed in an ECRC is information which the Chief Constable of the relevant police force reasonably believes ``might be relevant'' and ``ought to be included''. It can include allegations about criminal or other behaviour which have not been substantiated, whether in the courts, in regulatory or disciplinary proceedings, or otherwise, as well as details of any recorded convictions.

    2. The appellant, SD, worked in the education sector. Until 31 October 2011, he was employed by a college of further education teaching vocational skills to students aged between 17 and 24. In August 2013 the appellant began new employment as a child workforce technician with Visions Learning Trust. He was asked by his employer to apply for an ECRC and did so. The respondent, the Chief Constable of North Yorkshire Police, invited submissions by the appellant on the disclosure he proposed to make concerning a disputed allegation that the appellant had made comments of a sexual nature while employed by the college of further education. The comments were alleged to have been made while he was supervising an overseas student trip and in the presence of students aged between 17 and 24 and other adults in July 2010. The respondent rejected the submission that no disclosure should be made but modified its terms in the light of the appellant's submissions. The ECRC issued was dated 14 February 2014.

    3. The appellant brought judicial review proceedings, claiming that the disclosure disproportionately interfered with his right under Article 8 of the European Convention on Human Rights (``ECHR'') to respect for his private life. His case was that the inclusion of the allegations, which he strongly denies, in the ECRC did not strike the right balance as they were: (a) not serious in nature, (b) not reliable, (c) four years old, and (d) their inclusion has the potential to severely damage his career and life prospects. His application was rejected by His Honour Judge Behrens, sitting in the Administrative Court in Leeds. This is an appeal against the judge's order dated 16 July 2015. In broad terms, the issue is whether the respondent, the Chief Constable of North Yorkshire Police, erred in the way he balanced the interests of children, a vulnerable group, against the right of the appellant, and whether the judge erred in his approach.

    4. In Parts II and III of this judgment, I summarise the legal framework, as to which there is broad agreement, and set out the disclosure that is challenged. Part IV summarises the background to the disclosure and the history of these proceedings. Part V summarises the judgment below, and Part VI the procedural history of the appeal. Part VII contains my analysis, and my conclusion that the disclosure in the ECRC was a disproportionate interference with SD's Article 8 rights and should be quashed, and the reasons for so concluding. If Lewison LJ and Hildyard J agree, the appeal against the judge's order will be allowed.

  2. The legal Framework:

    1. By section 113B(4) of the Police Act 1997 as amended:

      ``Before issuing an enhanced criminal record certificate, the Secretary of State must request any relevant chief officer to provide any information which -

      (a) the chief officer reasonably believes to be relevant for the purpose described in the statement under sub-section (2), and

      (b) in the chief officer's opinion, ought to be included in the certificate.''

      A chief officer is entitled to delegate this responsibility, and he or she or the delegate is required to issue the certificate to the individual who has applied for it.

    2. Section 117 of the 1997 Act provides for a person who has applied for an ECRC and believes that the information in it is inaccurate to apply to the Secretary of State for a new certificate. Section 117A enables a person who believes that the information provided is not relevant for the purpose authorised by the Act or ought not to be included in the ECRC to apply for a review of the disclosure by the independent monitor (``IM''), an officer appointed by the Secretary of State under section 119B, who is also required to conduct a general review of a sample of ECRCs. Section 119B(9) provides that the chief officer of a police force must provide to the independent monitor such information as the monitor reasonably requires in connection with the exercise of his functions under section 117A.

    3. The effect of disclosing information in an ECRC will often, in practice, severely restrict or end any opportunity for the individual in question to secure employment in an area for which an ECRC is required and for which they have been trained and have considerable experience. The risks of non-disclosure to the rights and interests of the members of vulnerable groups have to be balanced against the right of the individual concerned under Article 8. Where the allegations have not been substantiated and are strongly denied, this balancing exercise is particularly sensitive and difficult: see the decision of the Supreme Court in R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3, [2010] 1 AC 410 and my summary in R(A) v Chief Constable of Kent [2013] EWCA Civ. 1706, (2014) 135 BMLR 22.

    4. In L's case Lord Neuberger gave guidance about the balancing process and examples of the different and sometimes competing factors which have to be weighed up by the decision-maker. At [81], he stated:

      ``Examples of factors which could often be relevant are the gravity of the material involved, the reliability of the information on which it is based, whether the applicant has had a chance to rebut the information, the relevance of the material to the particular job application, the period that has elapsed since the relevant events occurred, and the impact on the applicant of including the material in the ECRC, both in terms of her prospects of obtaining the post in question and more generally.''

      He also stated that:

      ``In many cases, other factors may also come into play, and in other cases, it may be unnecessary or inappropriate to consider one or more of the factors I have mentioned. Thus, the material may be so obviously reliable, relevant and grave as to be disclosable however detrimental the consequential effect on the applicant.''

    5. In July 2012, the Home Office issued guidance under section 113B(4A) to assist chief officers of police making decisions as to the information to be provided in ECRCs. This largely adopted Lord Neuberger's guidance in L's case and the parties in this appeal did not refer to it because they agreed that it sufficed to refer to the jurisprudence, in particular, L and A.

    6. As well as providing guidance as to the way the rights and interests of members of vulnerable groups have to be balanced against the right of the individual concerned under Article 8, A's case deals with the approach to the views of other regulators and the position of material which could not have been available to the decision maker at the time of the decision. I deal with those matters at [53] - [54] below.

  3. The challenged ECRC:

    1. After the appellant's application for an ECRC in August 2013, on 8 November 2013 the respondent informed him that information relating to his time at the college of further education was being considered for inclusion in it. He objected to the proposed disclosure, and the respondent revised the proposed wording in the light of his submissions but maintained his decision to make disclosure. The entry in the ECRC dated 14 February 2014 to which the appellant objects is under the heading ``Other relevant information disclosed at the Chief Police Officer's discretion''. It states:

    ``The information relates to [SD's] alleged unprofessional behaviour during a college trip.

    North Yorkshire Police believe this information to be relevant to an employer's risk and suitability assessment when considering [SD's] application for technician working with children because without this information the registered body may not be able to mitigate and manage any potential risk.

    The information held by police is:

    [SD] underwent a police investigation in November 2011 following an allegation that he had behaved in an unprofessional manner whilst working as a lecturer supervising a college trip in July 2010. [SD] allegedly made inappropriate comments of a sexual nature in the presence of students aged between 17 - 24 and other adults present on the trip. The findings of the investigation revealed no criminal offences committed.

    [SD] made representations regarding the above information. [SD] stated that the complaints were made against him after he had made a complaint against another member of staff. He believed that this member of staff had encouraged others to make allegations about him to discredit him...

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