In this decision on 29 October 2009, the Supreme Court has provided welcome clarification of the law relating to the disclosure of information by the police in realtion to persons employed in sensitive positions by means of Enhanced Criminal Records Certificates (‘ECRCs’)

In dismissing the claimant’s appeal from the Court of Appeal ([2007] EWCA Civ 168)  the Supreme Court held that the police should not disclose allegations against applicants for employment in sensitive positions, such as those involving the care of children or vulnerable adults, unless in the particular case the risk disclosed by the information justifies the potential impact of disclosure on the applicant.

The contrary approach, taken by the Court of Appeal’s R (X) v Chief Constable of the West Midlands Police ([2005] 1 WLR 65; [2004] EWCA Civ 1068) was always questionable (although permission to appeal was refused by the House of Lords at the time). 

The decision was made during testing times, under the shadow of the murders of Holly Wells and Jessica Chapman. But, in its insistence that the police must disclose information which ‘might be relevant’ unless there was some ‘untoward circumstance’ which amounted to a ‘good reason’ not to disclose the information, the judgment appeared to disregard the language of the Police Act 1997, let alone Article 8 of the European Convention on Human Rights.

The Supreme Court has now put the matter right. It considered the regime governing the issue of ECRCs under section 115 (now section 113B) of the Police Act 1997. ECRCs are now a necessary requirement of applications for certain jobs – including social work, teaching and childcare – and are designed to protect vulnerable individuals from potential risk by alerting the employer to information which might affect the suitability of the applicant for the role in question. Accordingly, the statute requires an ECRC to include details of convictions, including spent convictions, and cautions. It also requires an ECRC to include any other information which, in the opinion of a Chief Constable, (a) might be relevant and (b) ought to be included in the ECRC. This could include mere suspicions of criminal, or non-criminal, activity which have never been tested in court (or at all).

As Lord Neuberger pointed out, the express requirement that the information ‘ought to be included’ in addition to the requirement that it ‘might be relevant’ strongly suggested that the approach of the Court of Appeal was wrong as a matter of standard statutory interpretation. Why should that second requirement be given such little weight? 

But the effect of Article 8 – which requires public authorities to respect an individual’s private life unless any interference is proportionate to a legitimate aim – was the main reason relied on by the Supreme Court. The Court had little difficulty in deciding that the issue of an ECRC will almost always involve an interference with Article 8 rights. 

The majority (Lord Scott dissenting on this point) gave short shrift to the argument that an applicant could not rely on Article 8 because, by making the application for an ECRC, she was somehow consenting to the disclosure of any information which might be relevant. She had no real choice in the matter and, anyway, could not be taken to have agreed to the disclosure of information which should not properly be disclosed.

The judgment reinforces the increasingly wide scope of Article 8. While the Court did not suggest that Article 8 protects a person’s employment in itself, it was held that the exclusion of a person from employment in a chosen field might well affect his or her ‘private life’ because of its impact on the ability to develop relationships with others and make a living, and its potential detrimental effect on reputation. Further, the revelation of personal information, even criminal convictions, can interfere with Article 8 when such information is systematically stored by public authorities.

The real question, then, is whether in any particular case the interference can be justified as being proportionate to a legitimate aim. This involves striking a balance between the rights of vulnerable individuals not to be subjected to harm and the rights of applicants for employment to respect for their private life. 

A majority of the Supreme Court (Lord Scott again dissenting) held that the Court of Appeal’s formulation in the X case did not strike the necessary balance or, perhaps more accurately, did not allow the necessary balance to be struck in each individual case. As Lord Neuberger pointed out, sometimes Parliament chooses to strike the balance itself: in such case, difficult issues over ‘deference’, interpretation and declarations of incompatibility might arise. In the present context, for example, Parliament decided that convictions and cautions should always be disclosed in an ECRC: the Supreme Court was satisfied that this was proportionate. However, Parliament did not itself reach any such conclusion in respect of other information: on the contrary, section 115 specifically required Chief Constables to consider whether potentially relevant material ‘ought to be included’. Giving this requirement its proper weight was all that was needed to comply with Article 8. There was no presumption in favour of disclosure. The police would need to consider the facts of each case including the gravity and reliability of the allegations, the period which has elapsed since the alleged acts, and the impact on the applicant (and, possibly, others) of disclosing the information. Whether or not the applicant has had the opportunity to comment on the material might also be relevant: if he or she has not had such an opportunity previously and/or if the case for disclosure is a borderline one, it is likely that the police would need to offer the applicant the opportunity to make representations before making a decision. 

In reality, it will probably be a rare case where an employer takes the risk of recruiting an applicant with any adverse allegations on their ECRC, however distant or unsubstantiated. So, in limiting the circumstances in which such allegations should be included, this important judgment is likely to assist those whose might otherwise have found their opportunities for employment in their chosen field scuppered by the disclosure of allegations of dubious reliability, weight or significance. No doubt there will be those who say it fails adequately to protect the vulnerable, but the approach set out by the Supreme Court ought to allow the appropriate balance to be struck in each individual case.

Indeed, none of this availed the appellant in the particular case. She applied to be a ‘midday assistant’ at a school, tasked with caring for schoolchildren. Previously, her own child had been placed on the child protection register due to concerns about neglect and possible exposure to illicit drugs; he was only removed from the register when he was taken into custody following a conviction for robbery. The Supreme Court held that such information had been properly disclosed for inclusion in the ECRC. It was then for the employer to decide what to do with it: in this case, it was ‘not at all surprising that her employment should be terminated’.

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