United Kingdom Supreme Court

"In my view, the guiding principles for the exercise of the power to disclose in the present case are those enunciated in R v Chief Constable of the North Wales Police, Ex p AB. Each of the respondent authorities had to consider the case on its own facts. A blanket approach was impermissible. Having regard to the sensitivity of the issues raised by the allegations of sexual impropriety made against LM, disclosure should only be made if there is a 'pressing need'. Disclosure should be the exception, and not the rule."

37. In para 84 Wall J said that, while section 115(7) defined the parameters of the Chief Constable's discretion, it did not exclude the operation of the common law principles as to its exercise. In para 85 he said that, as all parties in those proceedings accepted, the discretion must also be exercised in compliance with article 8(2) of the Convention and that it seemed to him to be only a very short step to an acceptance that the common law principles set out in Ex p AB as accepted by Dyson J in Ex p LM also applied. In para 89 he said:

"The disclosure of information which (as here) has not been the subject of judicial adjudication, which is highly contentious and which, if disclosed is likely to render the claimant permanently unemployable in his chosen profession plainly requires what the European court described as 'a pressing need' to made disclosure appropriate."

In para 90, however, he accepted that the need to protect children and vulnerable adults from abuse by those employed to care for them is a pressing social need and in para 91, having noted that it was at least highly arguable that the effect of section 115(7) was to displace the common law presumption against disclosure, he said that he proposed to approach the question on the basis that there was no presumption against disclosure and that the circumstances identified in section 115(7) did identify a pressing need:

"As will become apparent, however, this does not mean that disclosure of additional, non-conviction information under section 115 is automatic, or that it is not surrounded by the stringent conditions of natural justice and procedural fairness."

He held that there had been no proper assessment of the effect on the claimant of disclosure being given, and that the information ought not to have been disclosed.

38. Wall J's decision was reversed in the Court of Appeal: [2005] 1 WLR 65. In para 36 Lord Woolf CJ said that the position was more in favour of disclosure than Wall J had indicated:

"Having regard to the language of section 115, the Chief Constable was under a duty to disclose if the information might be relevant, unless there was some good reason for not making such a disclosure."

In para 37, as I noted in para 2 above, he then added these words:

"This was obviously required by Parliament because it was important (for the protection of children and vulnerable adults) that the information should be disclosed even if it only might be true. If it might be true, the person who was proposing to employ the claimant should be entitled to take it into account before the decision was made as to whether or not to employ the claimant. This was the policy of the legislation in order to serve a pressing social need. In my judgment it imposes too heavy an obligation on the Chief Constable to require him to give an opportunity for a person to make representations prior to the Chief Constable performing his statutory duty of disclosure."

In para 41 he considered the effect of article 8(2), on the assumption that article 8 had a role to play in the decision of the Chief Constable:

"...on that assumption, how can the Chief Constable's decision to disclose be challenged under article 8. As already indicated, the Chief Constable starts off with the advantage that his statutory role is not in conflict with article 8, because the statute meets the requirements of article 8(2). It follows also, that as long as the Chief Constable was entitled to form the opinion that the information disclosed might be relevant, then absent any untoward circumstance which is not present here, it is difficult to see that there can be any reason why the information that 'might be relevant', ought not to be included in the certificate. I accept that it is possible that there could be cases where the information should not be included in the certificate because it is disproportionate to do so; the information might be as to some trifling matter; it may be that the evidence made it so unlikely that the information was correct, that it again would be disproportionate to disclose it. These were not, in my judgment, the situations on the facts before the Chief Constable."

It is plain that the effect of this approach is to encourage disclosure of any information that might be relevant, and to give priority to the social need that favours disclosure over respect for the private life of the applicant and of any third party who may be affected by the disclosure. It was also a significant departure from the way the White Paper envisaged the scheme would be operated: see para 5, above.

Discussion

39. Section 115(7) requires the Chief Constable to form an opinion as to whether any information -

"(a) might be relevant for the purpose described in the statement under subsection (2), and

(b) ought to be included in the certificate."

The question whether the information is relevant will depend on the facts of the case. As Richards LJ said in R (Pinnington) v Chief Constable of Thames Valley Police [2008] EWHC 1870 (Admin), para 47, by the terms of the statute it is for the chief constable or his delegate to form an opinion on that issue. In forming his opinion on relevance, the officer must ask himself whether the information might be true, and if it might be true he must consider the degree of connection between the information and the purpose described. It has not been suggested that DCI Gibson and Det.Supt. Morris, who undertook their task with commendable care, were not entitled to conclude that the information that was disclosed on the appellant's ECRC might be relevant for the purpose disclosed in the statement that the employment agency provided under section 115(2).

40. The question whether the information might be relevant is not, however, the end of the matter. An opinion must also be formed as to whether it "ought" to be included in the certificate. It is here, as the guidance that is available to the police correctly recognises, that attention must be given to the impact that disclosure may have on the private lives of the applicant and of any third party who is referred to in the information. For the reasons I have already given (see paras 22-29), I consider that the decisions which the chief officer of police is required to take by section 115(7) of the 1997 Act will fall within the scope of article 8(1) in every case. So in every case he must consider whether there is likely to be an interference with the applicant's private life, and if so whether that interference can be justified.

41. This raises the question whether in R (X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65, paras 36 and 37 and especially in para 41, Lord Woolf CJ struck the balance in the right place. Before he addressed himself to this issue, however, Lord Woolf noted in para 20 of the judgment that it had not been suggested in that case that the legislation itself contravenes article 8:

"No doubt this is because disclosure of the information contained in the certificate would be 'in accordance with the law' and 'necessary in a democratic society', in the interests of public safety and for the prevention of crime and for the protection of the rights and freedoms of others. This country must, through its legislature, be entitled to enable information to be available to prospective employers, where the nature of the employment means that particular care should be taken to ensure that those who are working with the appropriate categories of persons can be relied on to do so, without those in their care coming to harm if they are under the age of 18 or vulnerable adults."

I would respectfully endorse those remarks. Here too it was not suggested by Mr Cragg that the legislation itself contravened article 8, so long as it was interpreted and applied in a way that was proportionate.

42. So the issue is essentially one of proportionality. On the one hand there is a pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the applicant's right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place. As the many additions that have been made to the list of matters in section 115(5) show, the use that is being made of the requirement to obtain an ECRC has increased substantially since the scheme was first devised. The number of disclosures of information by means of ECRCs has exceeded 200,000 for each of the last two years (215,640 for 2007/2008; 274,877 for 2008/2009). Not far short of ten per cent of these disclosures have had section 115(7) information on them (17,560 for 2007/2008; 21,045 for 2008/2009). Increasing use of this procedure, and the effects of the release of sensitive information of this kind on the applicants' opportunities for employment or engaging in unpaid work in the community and their ability to establish and develop relations with others, is a cause of very real public concern as the written intervention submitted by Liberty indicates.

43. As Liberty also point out, it is no answer to these concerns that the ECRC is issued on the application of the persons concerned. It is true that they can choose not to apply for a position of the kind that requires such a certificate. But they have, in reality no free choice in the matter if an employer in their chosen profession insists, as he is entitled to, on an ECRC. The answer to the question whether there is any relevant information is likely to determine the outcome of their job application. If relevant information is disclosed they may as a result be cut off from work for which they have considerable training and experience. In some cases they could be excluded permanently from the only work which is likely to be available to them. They consent to the application, but only on the basis that their right to private life is respected.

44. In my opinion the effect of the approach that was taken to this issue in R (X) v Chief Constable of the West Midlands Police has been to tilt the balance against the applicant too far. It has encouraged the idea that priority must be given to the social need to protect the vulnerable as against the right to respect for private life of the applicant. This is clearly shown by the way the rating table in MP9 is constructed and by Det.Supt. Morris's minute of 2 December 2004. The words "ought to be included" in section 115(7)(b) require to be given much greater attention. They must be read and given effect in a way that is compatible with the applicant's Convention right and that of any third party who may be affected by the disclosure: Human Rights Act 1998 Act, section 3(1). But in my opinion there is no need for those words to be read down or for words to be added in that are not there. All that is needed is to give those words their full weight, so that proper consideration is given to the applicant's right to respect for her private life.

45. The correct approach, as in other cases where competing Convention rights are in issue, is that neither consideration has precedence over the other: Campbell v MGN Ltd [2004 ] UKHL 22, [2004] 2 AC 457, para 12, per Lord Nicholls of Birkenhead. The rating table in MP9 should be restructured so that the precedence that is given to the risk that failure to disclose would cause to the vulnerable group is removed. It should indicate that careful consideration is required in all cases where the disruption to the private life of anyone is judged to be as great, or more so, as the risk of non-disclosure to the vulnerable group. The advice that, where careful consideration is required, the rationale for disclosure should make it very clear why the human rights infringement outweighs the risk posed to the vulnerable group also needs to be reworded. It should no longer be assumed that the presumption is for disclosure unless there is a good reason for not doing so.

46. In cases of doubt, especially where it is unclear whether the position for which the applicant is applying really does require the disclosure of sensitive information, where there is room for doubt as to whether an allegation of a sensitive kind could be substantiated or where the information may indicate a state of affairs that is out of date or no longer true, chief constables should offer the applicant an opportunity of making representations before the information is released. In R (X) v Chief Constable of the West Midlands Police Lord Woolf CJ rejected Wall J's suggestion that this should be done on the ground that this would impose too heavy an obligation on the Chief Constable [2005] 1 WLR 65, para 37. Here too I think, with respect, that he got the balance wrong. But it will not be necessary for this procedure to be undertaken in every case. It should only be resorted to where there is room for doubt as to whether there should be disclosure of information that is considered to be relevant. The risks in such cases of causing disproportionate harm to the applicant outweigh the inconvenience to the chief constable.

Conclusion

47. In my opinion it is possible for section 115(7) to be read and given effect in the way that I have indicated so that decisions are taken which are compatible with the applicant's article 8 right. It must follow that it would not be appropriate for a declaration to be made under section 4 of the Human Rights Act 1998 that the subsection is incompatible.

48. I would also decline the appellant's request that the decision that was made in her case should be quashed. There is no doubt that the information that was disclosed about her was relevant for the purpose for which the ECRC was being required. As for the question whether it ought to have been disclosed, insufficient weight was given to the appellant's right to respect for her private life. But there is no doubt that the facts that were narrated were true. It was also information that bore directly on the question whether she was a person who could safely be entrusted with the job of supervising children in a school canteen or in the playground. It was for the employer to decide what to make of this information, but it is not at all surprising that the decision was that her employment should be terminated. The consequences that disclosure will have for her private life are regrettable. But I can see no escape from the conclusion that the risk to the children must, in her case, be held to outweigh the prejudicial effects that disclosure will give rise to. I would dismiss the appeal.

49. I have had the advantage of reading in draft the judgment of Lord Hope. For the reasons that he gives I would dismiss this appeal.

50. The appellant, L, is a lady who wanted to obtain employment in a school as a "casual midday assistant". The duties associated with this position involved supervising the schoolchildren during the lunchtime break both in the school canteen and in the school playground. The appellant hoped to obtain this employment via an agency, Client Services Education ("CSE"), whose business was to provide staff to schools.

51. For the purposes of furthering the prospects of her success in obtaining the desired employment she made an application for an enhanced criminal record certificate pursuant to section 115 of the Police Act 1997 (as amended). My noble and learned friend, Lord Hope, whose opinion on this appeal I have had the advantage of reading in draft, has explained in para 1 and paras 4 to 11 of his opinion the background to and the purpose of section 115 and has set out the terms of the section. I gratefully adopt what he has said and it suffices for present purposes for me to say that whereas a criminal record certificate gives details of any recorded convictions of the individual to whom the certificate relates, an "enhanced" criminal record certificate (an "ECRC") gives, in addition, any information which in the opinion of the chief officer of the relevant police force "might be relevant" for the purpose described in the application for the certificate and "ought to be included" in the certificate (see section 115(7)). The chief officer is not expected to embark upon an investigatory inquiry regarding the individual in question but simply to consult the records maintained by the police. It is clear that additional information disclosed under subsection (7) in an ECRC may be information that does not involve any criminal behaviour on the part of the individual in question. It may, for example, as in the present case, relate to the relationship of the individual with some other person who does have a criminal record.

52. In the previous paragraph I said that the appellant had made an application for an ECRC. In para 7 of the Statement of Facts and Issues, prepared for the purposes of this appeal and signed by the respective counsel for the appellant and the respondent, the Secretary of State, it is stated that the application was made by CSE. Lord Hope, in para 14 of his opinion, has repeated that it was CSE that applied for the ECRC. However, subsections (1) and (2) of section 115 seem to me to make it clear that an application for an ECRC must be made by the individual in question. Subsection (1) says that -

"The Secretary of State shall issue an enhanced criminal record certificate to any individual who -

(a) makes an application under this section in the prescribed form countersigned by a registered person ..."

The "registered person" in the present case was CSE. Subsection (2) says that the application -

". must be accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question asked -

(a) in the course of considering the applicant's suitability for a position (whether paid or unpaid) within subsections (3) or (4) ." (emphasis added)

Subsection (3) refers to a position which

". involves regularly . supervising or being in sole charge of persons under 18".

53. Subsection (3) clearly covers the position for which the appellant was hoping to be employed and it is she who must have been the "applicant" whose "suitability" was under consideration. The statutory obligation imposed on the Secretary of State by subsection (1) is an obligation to issue the ECRC to the individual who makes the application. Subsection (8) imposes a statutory obligation on the Secretary of State to send a copy of the ECRC to the registered person, CSE in the present case.

54. I think, therefore, that it must be wrong to say that the application for the ECRC had been made by CSE. It must have been made by the appellant. It may be that not very much turns on this point for, as Lord Hope has pointed out, also in para 14, "The appellant signed the application to indicate her consent."

55. The ECRC issued in response to the application recorded that the appellant had no criminal convictions but under the heading "other relevant information disclosed at the chief police officer's discretion" the Secretary of State included the details regarding the appellant's 13 year old son that are recited by Lord Hope in para 15 of his opinion. It is plain that it was the chief police officer's opinion that these details were relevant to the employment of the appellant as a "casual midday assistant" at a school and that they "ought to be included" in the certificate.

56. The appellant has challenged the chief police officer's decision to include the details in question in the certificate. The decision, it is submitted, violates her rights under article 8 of the European Convention on Human Rights. Article 8 entitles everyone to the right to respect for his or her private life. The ECRC, issued in response to the appellant's application, undoubtedly contained details about her private life but these were details that, in my opinion, had a clear relevance to the suitability of the appellant to be employed in a capacity that involved the supervision of schoolchildren, whether in the school canteen or in the school playground. The only remaining question, in my opinion, is whether the decision of the chief police officer that the details "ought to be included in the certificate" is vulnerable to an article 8 attack.

57. It would be easy to understand a complaint by the appellant of an article 8 breach of her right to respect for her private life if details with no arguable relevance to the employment position in question had been gratuitously included in the ECRC. But that is not the case here. Nor is it suggested that the compilation and retention by the police of the details in question constituted a breach of her article 8 rights. If the compilation and retention by the police of the details was unexceptionable and if it cannot be suggested that the details were irrelevant to the suitability of the appellant for the employment position for which she had applied, I find it difficult to see on what basis her attack on the inclusion of the details in the certificate could succeed. She does not say that they are untrue nor that they are irrelevant. She simply says, as I understand it, that the decision to include them in the certificate showed a lack of the respect for her private life to which she is entitled under article 8.

58. It is at this point, as it seems to me, that it becomes necessary to remember that it was she who applied for the certificate. I do not doubt that the need for the certificate would have been impressed on her by CSE and that she would have realised that unless she agreed to make the application her chances of obtaining the employment position she desired would be reduced. She may or may not have had in mind the full implications of subsection (7) of section 115 and it would probably not have occurred to her that the history of her delinquent 13 year old son and her failure to have controlled his delinquency would be known to the police and might be considered relevant information. But it cannot, in my opinion, possibly be said that the police response showed a lack of respect for her private life. It was she who, in making the application for an ECRC, invited the exercise by the chief police officer of the statutory duty imposed by section 115(7).

59. In para 43 of his opinion Lord Hope has commented that those in respect of whom an ECRC are sought "consent to the application but only on the basis that their right to private life is respected". This proposition seems to me, with the greatest respect, to be an impossible one. The "any information" to which subsection (7) refers is almost bound to be information about private life. An application for subsection (7) information cannot be on the basis that no private information on the police files about the individual in question will be included in the certificate. If an application were ever made on that express basis it would rightly be rejected by the Secretary of State. If the private information is relevant and the decision that it ought to be included in the ECRC is a reasonable one, having regard to the reason why the certificate is being sought, there is, in my opinion, no objection to its inclusion that the applicant for the certificate can make. A decision reasonably reached that relevant information should be included in an ECRC cannot, in my opinion, be attacked by the applicant for the ECRC on the ground that the decision showed an article 8 lack of respect for his or her private life.

60. It follows from what I have said that I would, for my part, endorse the approach taken by Lord Woolf CJ in R (X) v Chief Constable of the West Midlands Police [2005] 1WLR 65, referred to by Lord Hope in paragraphs 41 and 44 of his opinion. I agree that the approach accords priority to the social need to protect the vulnerable as against any article 8 rights the applicant for a section 115(7) ECRC may otherwise be entitled to. The applicant, by making the application, authorises the issue of the certificate in accordance with the criteria prescribed by paragraphs (a) and (b) of the subsection. If the decision of the chief police officer to include in the certificate the "additional information" is a decision which cannot be challenged as being unreasonable, having regard to the purpose described in the application (see section 115(7)), an article 8 challenge to the decision is not, in my opinion, open to the applicant.

61. I would, therefore, dismiss this appeal.

62. I have had the advantage of reading in draft the opinions of Lord Hope and Lord Neuberger. I agree with both of them and there is really very little that it might be helpful to add. Instinctively though one rails against a nanny state, there are occasions when nannying is justified and section 115 (7) of the Police Act 1997 seems to me just such a case. As already comprehensively explained by my Lords, it provides a mechanism whereby those considering the employment of someone applying to work with children may be the better informed as to that person's suitability for the post - more particularly as to whether there is anything known to the police about the person such as should give the prospective employer, at the very least, pause for thought.

63. That said, there can be no doubting the impact an enhanced criminal record certificate ("ECRC") containing any adverse information is likely to have on the person's prospects of obtaining the desired employment and it therefore seems to me imperative in every case to ensure that the public interest in safeguarding children really does justify the relevant disclosure. In short, I wholeheartedly concur with my Lords in concluding that the balance struck by the Court of Appeal in R (X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65 needs to be re-struck less unfavourably to the prospective employee. This is to be achieved in the first place by the chief officer of police giving no less weight to the section 115(7) (b) requirement that in his opinion the information ought to be included in the certificate than to the section 115(7)(a) requirement that he thinks it might be relevant (rather than presuming that any potentially relevant information should ordinarily be disclosed); and secondly by requiring the chief officer in any borderline case, before issuing the certificate, to give the prospective employee an opportunity to state why the information which the officer proposes disclosing ought not in fact to be disclosed.

64. Lord Scott takes issue with Lord Hope's statement at para 43 of his opinion that applicants for ECRCs consent to the disclosure of relevant information about them "but only on the basis that their right to private life is respected". Assuming, as I do, that all that Lord Hope means by this is that applicants are consenting to the disclosure of relevant information to the extent that this is proportionate to the damage this will cause to their interests in privacy but no more, it seems to me plainly right. As Lord Neuberger puts it at para 73 of his opinion, were it otherwise, legislation could all too easily be devised so as to circumvent Convention rights.

65. The above criticisms of the existing approach to disclosure under section 115(7) notwithstanding, in common with all of my Lords I regard the position in the present case to be clear. The Commissioner's decision to make the disputed disclosure here cannot in my opinion be criticised. The appeal must accordingly be dismissed.

66. Lord Hope has clearly set out the legislative provisions and history, the factual and procedural background and the appellant's contentions in paragraphs 4 to 21 of his judgment, and I gratefully adopt what he there says.

67. The appellant's contentions raise two principal issues. The first is whether the appellant's complaint about the operation of section 115 of the Police Act 1997, as summarised by Lord Hope in paragraph 21, is one which properly falls within the reach of article 8 of the Convention, i.e. whether article 8 is engaged. The second issue, which only arises if the Article is engaged, is whether the operation of the section in a case such as the present infringes article 8. There is also a separate contention that the decision in this particular case should be quashed.

68. As to the first issue, I am firmly of the view that article 8 is engaged in this case. An enhanced criminal record certificate (an "ECRC") which contains particulars of any convictions (potentially including spent convictions) or cautions (under section 115(6)(a)(i) and 113(5) of the 1997 Act), or any other information "which might be relevant" and which "ought to be included in the certificate" (under section 115(6)(a)(ii) and 115(7) of the 1997 Act), will often have a highly significant effect on the applicant. In the light of the wide ambit of section 115 (extending as it does to social workers and teachers, as well as to those "regularly caring for, training, supervising or being in sole charge of children), an adverse ECRC (i.e. an ECRC within section 115(6)(a), rather than section 115(6)(b)) will often effectively shut off forever all employment opportunities for the applicant in a large number of different fields, for the reasons given, in relation to other legislation, by Baroness Hale of Richmond in R (Wright) and others v Secretary of State for Health [2009] UKHL 3, [2009] 2 WLR 267, para 22.

69. An ECRC must be sought for each job application, but, once an adverse ECRC has been issued in relation to one application, it is, in the absence of special factors, likely to be issued in the same terms in relation to all future applications for posts falling within the ambit of section 115. Even where the ECRC records a conviction (or caution) for a relatively minor, or questionably relevant, offence, a prospective employer may well feel it safer, particularly in the present culture, which, at least in its historical context, can be said to be unusually risk-averse and judgmental, to reject the applicant. The same point applies to an ECRC which only contained material falling within section 115(6)(a)(ii) and (7), even where the "chief officer's opinion" that the material should be included, while rational, was not one which many chief officers would have shared. (Having said that, there will no doubt be cases where the employer will conclude that the information in the adverse ECRC is irrelevant or has been satisfactorily explained or disposed of by the applicant, but such cases would, I suspect, be comparatively rare.)

70. The view that this feature of the 1997 Act means that Article 8 is engaged derives support from Sidabras v Lithuania (2004) 42 EHRR 104, para 48. An applicant's exclusion from a large sector of the job market (especially, it seems to me, a socially important and vocationally driven sector) will frequently have a significant effect on her private life, in terms of career satisfaction, development of personal relationships and ability to earn a living. No reason has been advanced for thinking that this does not apply to the appellant in the present case, and accordingly, unless there is any other reason for holding otherwise, it appears to me that article 8 is engaged here.

71. Quite apart from this reason, while it may be said to be a little artificial to treat it as a separate reason, I consider that article 8 will, at least frequently, be engaged by an adverse ECRC, because it will involve the release of information about the applicant, which is stored on public records. Even where the information released in the ECRC is already in the public domain (as will be the case with almost all convictions), it seems to me that re-publication of the information can often engage article 8: see, in the domestic context, R v Chief Constable of the North Wales Police ex p AB [1999] QB 396, 416 and 429 (per Buxton J in the Divisional Court and Lord Woolf MR in the Court of Appeal, respectively), and, in Strasbourg, Segerstedt-Wiberg v Sweden Application No 62332/00, 6 June 2006, para 72, and Cemalettin Canli v Turkey, Application No 22427/04, 18 November 2008, para 33. Where the information, or a substantial part of the information, released in the ECRC is not in the public domain, as will very often be the position in relation to information falling within section 115(6)(a)(ii) and (7), the case for Article 8 engagement, as I see it, is self-evidently even stronger - see Leander v Sweden (1987) 9 EHRR 433, para 48, and Rotaru v Romania, Application no 28341/95, 8 BHRC 449 4 May 2000, para 43.

72. In the present case, as Lord Hope has explained in para 28, the information contained in the ECRC pursuant to section 115(6)(a)(ii) and (7), in so far as it related to the appellant (as opposed to her son), was not publicly available and was not even based on events which had taken place in public. Accordingly, for this reason as well, it appears to me that, subject to any other argument raised to the contrary, article 8 is engaged in this case.

73. Counsel for the Commissioner of Police argued that, despite this reasoning, article 8 was not engaged, because, under section 115(1)(a), an ECRC is issued only on the application of the applicant. The argument amounts to this, that a person cannot complain that disclosure of information about her infringes her article 8 rights where she has consented to the disclosure, and a fortiori where she has applied for the disclosure, as happened in this case, pursuant to section 115(1). I have no hesitation in rejecting this argument. Where the legislature imposes on a commonplace action or relationship, such as a job application or selection process, a statutory fetter, whose terms would normally engage a person's Convention right, it cannot avoid the engagement of the right by including in the fetter's procedural provisions a term that the person must agree to those terms. Apart from this proposition being right in principle, it seems to me that, if it were otherwise, there would be an easy procedural device which the legislature could invoke in many cases to by-pass Convention rights.

74. I turn, then, to the second issue, namely, given that applicants' article 8 rights are engaged in this case, do the provisions of section 115(6)(a)(ii) and (7) infringe those rights? This question raises a problem which the courts have not infrequently had to face since the Human Rights Act 1998 came into force. In order to protect the members of a particular group of people, Parliament has enacted legislation, the effect of which is to encroach on the Convention rights of members of another group. When, as in this case, a member of the latter group, who is adversely affected by the legislation, complains that her Convention rights have been infringed, the task of the court is to decide whether the legislation concerned has struck an appropriate balance between the interests of the two groups. When deciding whether the balance is appropriate, it is for the court to form its own judgment, but, in doing so, it should accord proper deference to the fact that the legislation represents the view of by the democratically elected legislature as to where the balance should be struck. In addition, the court is, of course, bound to try, if possible, to construe the legislation in such a way as to achieve compatibility with the Convention: a declaration of incompatibility is very much of a last resort.

75. Part V of the 1997 Act has the unexceptionable aim of protecting vulnerable people (for present purposes children, but also, in certain circumstances, vulnerable adults), from being harmed by those working with them. It does so by requiring relevant information available to the police, about an applicant for a post involving responsibility for such vulnerable people, to be vouchsafed in an ECRC to the prospective employer. It is then for that employer to decide whether the information is relevant, and, if so, whether it justifies refusing to employ the applicant. As already mentioned, however, it seems to me realistic to assume that, in the majority of cases, it is likely that an adverse ECRC, i.e. one falling within section 115(6)(a), will represent something close to a killer blow to the hopes of a person who aspires to any post which falls within the scope of the section. Further, the vouchsafing of the information in an adverse ECRC will of itself normally (and where, as here, it is pursuant to section 115(6)(a)(ii), almost inevitably) impact on the applicant's private life.

76. Given that, in relation to children-related posts, the section is limited to those seeking employment involving "regular.." responsibility for young people, I am prepared to proceed on the basis that there is nothing objectionable in the requirement that an ECRC must contain the information referred to in section 115(6)(a)(i), as expanded by the definition of "relevant matter" in section 113(5), even though it may on occasions be rather harsh on the applicant concerned. As Lord Woolf MR said in R(X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65, para 20, Parliament "must ... be entitled to enable information to be available to prospective employers, where the nature of the employment means that particular care should be taken to ensure that those who are working with the appropriate categories of persons can be relied on to do so .". Whether as a result of a conviction or a caution (which involves the person concerned having admitted committing the offence in question), there can be little doubt that the information in question will be accurate, and will have been sufficiently grave as to amount to a crime.

77. However, section 115(6)(a)(ii), as expanded by section 115(7)(a), requires the inclusion of a different category of material, which raises very different considerations. First, it may frequently extend to allegations of matters which are disputed by the applicant, or even to mere suspicions or hints of matters which are disputed by the applicant. Secondly, the threshold for inclusion in the ECRC is subjective and very low: information must be included in an ECRC if, in the "opinion" of the chief officer, it "might be relevant". So, information would often properly fall within section 115(7)(a) if it was not in fact relevant, or was only very peripherally relevant, to the applicant's suitability for the post in question. It could be information which would unfairly blacken her name, unjustly prejudice her prospects of obtaining the post or any other post for which an ECRC was required (e.g. a spent conviction for dishonesty), or simply embarrass her.

78. In my view, if section 115(7)(a) was the sole criterion for the inclusion of information under section 115(6)(a)(ii), it would be impossible to justify. Although its general purpose, namely protection of vulnerable people from potential harm from those with posts involving responsibility for them, is unexceptionable, there would simply be insufficient, indeed effectively no real, countervailing protection for the article 8 rights of applicants for such posts. Although not on all fours with the facts in R (Wright) and others v Secretary of State for Health [2009] 2 WLR 267, I consider that the thrust of the reasoning in that case supports such a conclusion. There would be too many cases where the inclusion in an ECRC of material falling within section 115(7)(a) would represent an unwarranted invasion of an applicant's article 8 rights for the statutory provisions to survive an incompatibility assault.

79. However, the test for inclusion of material under section 115(6)(a)(ii) is not limited to paragraph (a) of section 115(7). Information cannot be included in an ECRC under section 115(6(a)(ii) unless it also satisfies paragraph (b). Section 115(7) sets out two requirements which are separate in principle, although they may well frequently involve overlapping factors in practice. The way section 115(7) is worded makes it quite clear that information can only be included in an ECRC under section 115(6)(a)(ii) if the chief officer considers both that (a) it "might be relevant" for the purposes of section 115(2), and that (b) it "ought to be included in the certificate". Both requirements must be satisfied, and therefore both requirements must be separately considered by the chief officer.

80. While paragraph (a) of section 115(7) sets a low hurdle for the inclusion of material under section 115(6)(a)(ii), indeed a hurdle which, if it were the sole hurdle, would be too low to satisfy the article 8 rights of applicants, paragraph (b) provides for the requisite balancing exercise that justifies the conclusion that there is no article 8 infringement. In other words, the legislation, through the medium of section 115(7)(b), rightly acknowledges that the relevant public authority, namely the chief officer, must balance the need to protect those vulnerable people whom an ECRC is designed to assist with the article 8 rights of those in respect of whom an ECRC is issued.

81. Having decided that information might be relevant under section 115(7)(a), the chief officer then has to decide under section 115(7)(b) whether it ought to be included, and, in making that decision, there will often be a number of different, sometimes competing, factors to weigh up. 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. 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.

82. In a nutshell, as Lord Hope has said, the issue is essentially one of proportionality. In some, indeed possibly many, cases where the chief officer is minded to include material in an ECRC on the basis that he inclines to the view that it satisfies section 115(7)(b), he would, in my view, be obliged to contact the applicant to seek her views, and take what she says into account, before reaching a final conclusion. Otherwise, in such cases, the applicant's article 8 rights will not have been properly protected. Again, it is impossible to be prescriptive as to when that would be required. However, I would have thought that, where the chief officer is not satisfied that the applicant has had a fair opportunity to answer any allegation involved in the material concerned, where he is doubtful as to its potential relevance to the post for which the applicant has applied, or where the information is historical or vague, it would often, indeed perhaps normally, be wrong to include it in an ECRC without first giving the applicant an opportunity to say why it should not be included.

83. This conclusion is at odds with what was said by Lord Woolf MR in R(X) v Chief Constable of West Midlands Police [2005] 1 WLR 65, para 41. He said that "absent any untoward circumstance it is difficult to see that there can be any reason why the information that 'might be relevant' ought not to be included in the certificate" (although it is only fair to add that he did, correctly, refer to the issue as being one of proportionality). In my view, that approach is wrong, even if one ignores the fact that article 8 is engaged. Section 115(7) contains two tests which have to be satisfied, and there is no reason to think that the second test was intended to be of only marginal relevance and rare application. On the contrary: given the low threshold of the first test and the importance of an ECRC to an applicant, one would expect the second test to be important, and this point receives some support from the para 30 of the White Paper which preceded the 1997 Act (see para 5 of Lord Hope's judgment). The point is heavily reinforced, of course, once the impact of article 8 is taken into account.

84. In R (X) v Chief Constable of West Midlands Police [2005] 1 WLR 65, para 67, Lord Woolf MR, disagreeing with the view to the contrary of Wall J at first instance ([2002] EWHC 61 (Admin), [2004] 1 WLR 1518), said that it would be inappropriate to interpret section 115(7)(b) as imposing a duty on a chief officer to contact applicants where he was proposing to include material under section 115(6)(a)(ii) in an ECRC. Lord Woolf thought that this would involve imposing too heavy a burden on chief officers. I disagree. While far from suggesting that the duty would arise in every case, it seems to me that the imposition of such a duty is a necessary ingredient of the process if it is to be fair and proportionate. The widespread concern about the compulsory registration rules for all those having regular contact with children, as proposed by the Government in September 2009, demonstrates that there is a real risk that, unless child protection procedures are proportionate and contain adequate safeguards, they will not merely fall foul of the Convention, but they will redound to the disadvantage of the very group they are designed to shield, and will undermine public confidence in the laudable exercise of protecting the vulnerable.

85. The procedures currently adopted by chief officers have been described by Lord Hope in paras 30 to 34, and they are plainly, and sensibly, based on the observations of Lord Woolf MR in R (X) v Chief Constable of West Midlands Police [2005] 1 WLR 65. It is apparent that, as one would hope, chief officers and their staff take their responsibilities under Part V of the 1997 Act very seriously. However, it is also clear that the current procedures will need to be adapted to accord considerably greater weight to section 115(7)(b) and considerably greater recognition to the article 8 rights of applicants.

86. For these reasons, which are little more than an echo of those more fully expressed by Lord Hope, with whose judgment I agree, I conclude that sections 115(6)(a)(ii) and 115(7) of the 1997 Act can and should be given an effect which is compatible with the article 8 rights of those who make applications under section 115(1). I also consider that, for the reasons given by Lord Hope in para 48, the decision in this particular case cannot be faulted. Accordingly, I too would dismiss this appeal.