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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 989
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(Calvert-Smith J) (CO/1700/2005)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE LONGMORE
| The Queen of the Application of Dr D
|- and -
|The Secretary of State for Health
Mr Adrian Lynch QC (instructed by Office of the Solicitors) for the Secretary of State for Health
Hearing dates : 12 June 2006
Crown Copyright ©
ALERT LETTERS AND CIRCULAR 2002/011
"1. An alert letter is the way in which all NHS bodies are made aware of a doctor or other registered health professional whose performance or conduct could place patients or staff at serious risk. They cover situations where doctors or any other health professionals who pose a hazard to patients or staff may move from their present NHS employer to work elsewhere in a health or social care setting in any capacity, whether or not requiring registration, before their regulatory body has had the chance to consider interim suspension or other measures. Even where such measures are in place, alert letters are intended to reduce the risk of inappropriate employment in any capacity.
2. It is also a way in which all NHS bodies are made aware of a doctor or other health professional who may reasonably be considered to pose a serious potential or actual risk to patient care or staff safety because their performance or conduct seriously compromises the effective functioning of a clinical team or local primary care services (see paragraph 8).
3. Alert letters are not intended to be issued in circumstances where an individual practitioner's performance or conduct is being considered by their NHS employer. For doctors, the policy is that the advice and support of the National Clinical Assessment Authority (NCAA) should be sought by employing bodies in cases where the performance or conduct of a hospital doctor or general practitioner is giving serious cause for concern. A doctor undergoing assessment by the NCAA must give a binding undertaking not to practise in the NHS employment until the NCAA assessment is complete. An alert letter is intended to cover situations where a doctor moves on, or could move on before the assessment process is completed.
NOTE: Alert letters are solely for use in cases where an individual is considered to be a serious potential or actual risk to patients or staff. They should not be used for any other reason.
4. When an employer considers that their employee or former employee who is a health professional could place patients or staff at serious risk, they should make a request to the Regional Director of Public Health (RDPH) for the issue of an alert letter. In the case of health professionals other than doctors, the RDPH will seek advice from senior professional colleagues with responsibility for that profession (eg for nurses, the Head of Nursing at the relevant Directorate of Health and Social Care (DHSC), or for midwives, the local Supervisor of Midwives).
5. However, it will be for the RDPH to decide whether the criteria for issuing an alert letter have been met.
6. In all cases where an alert letter is issued, referral should be made to the individual's regulatory body (eg the General Medical Council) as a matter of urgency, by the initiating organisation. However, there might be very rare occasions when an alert letter may need to be issued as a matter of urgency but immediate referral may not be appropriate. This may be, for example, when investigations are ongoing to gather sufficient evidence to substantiate a referral to the regulatory body. In such cases, referral must be made at the earliest appropriate opportunity, or the alert letter withdrawn immediately it becomes clear that referral is not warranted. Consideration should also be given to the power of some regulatory bodies to place interim suspension or conditions on an individual's registration in circumstances when urgent action is required. The National Clinical Assessment Authority (NCAA) should also be notified in the case of doctors.
7. In summary, the alert letter is a measure to reduce the risk of an unsafe or poorly performing health professional practising whether in that or any other care capacity until the appropriate regulatory body has had the chance to consider what action is appropriate. In the case of doctors, an alert letter is intended to cover situations where the individual moves on before the NCAA assessment process is completed. It can also reduce the risk of individuals becoming inappropriately employed in posts not requiring registration, whether or not the regulatory body had taken action. There may be exceptional cases where the RDPH may decide that the individual remains a potential danger to patients and/or staff and therefore considers that the alert letter should remain in force. In this type of case, the RDPH may wish to consider consulting the Department's Solicitors branch."
"12. Alert letters are purely factual and ensure that prospective employers are put in contact with previous employers and NHS organisations whose names might not be included on application forms. They can be issued in cases where an individual had left a job and a disciplinary issue has not been resolved. After issuing an alert letter in these circumstances, employers are expected to complete all investigations, consider the evidence and reach a judgment as to whether or not the concerns are valid.
18. Only RDsPH may issue alert letters. This is to reduce the number of people that can issue alert letters in order to ensure consistency of approach throughout the country.
21. NHS Trusts will ask the RDPH to consider issuing an alert letter in the case of any of their employees. The request should be made by a Director of the NHS Trust.
26. The RDPH considers the representations from the organisation and decides whether or not to issue an alert letter after consultation with senior professional colleagues with responsibility for that profession (eg for nurses, the Head of Nursing in the relevant DHSC or for midwives, the local Supervisor of Midwives).
27. The RDPH advises the requesting organisation whether or not the alert letter will be issued and the reasons for this. If an alert letter is issued the requesting organisation must also refer the case to the regulatory body as a matter of urgency. It is recognised that there may be exceptional circumstances when immediate referral might not be appropriate, for example when investigations are ongoing to gather sufficient evidence to substantiate a referral to the regulatory body. In such cases referral must be made at the earliest appropriate opportunity or the alert letter withdrawn immediately it becomes clear that referral is not warranted.
28. The alert letter will be issued by the RDPH to all NHS bodies in the region. It will ask them to contact a named officer at the originating organisation for a reference if the subject of the alert letter contacts them with a view to obtaining employment and in addition will ask Health Authorities to distribute the letter to independent health care providers in their locality. The RDPH will also send the alert letter to other RDsPH, national independent health care providers and those organisations set out in paragraphs 43-45. A model alert letter is detailed in the Annex 2. Alert letters are strictly confidential and should only be shared in an NHS body on a 'need to know' basis.
29. Once an alert letter is issued the individual concerned should be notified by the initiating organisation within 7 days (in writing to their last known home address and, where appropriate, their registered address) that the RDPH has issued an alert letter. They should be given a summary of the reasons for this action and given 21 days from the date of notification in which, if they wish to challenge the decision, to send representations in writing to the initiating organisation, who will then pass them unaltered to the RDPH for consideration.
30. Following receipt of any representations, if the RDPH decides that that the individual does not in fact pose a serious potential or actual risk to patients or staff, then the alert letter must be formally cancelled. The RDPH's decision to cancel or not must be notified to the initiating organisation within 7 working days of receipt of the representations by the RDPH. The individual must be notified of the RDPH's decision by the initiating organisation.
NOTE: Alert letters are solely for use in cases where an individual is considered to be a serious potential or actual risk to patients or staff. They should not be used for any other reason.
Monitoring the situation and withdrawal of alert letters
31. So far as is reasonably practicable, the organisation that triggers the alert letter system must ensure that it monitors the progress of any proceedings by the police, regulatory body, NCAA or Occupational Health Service and of any disciplinary proceedings, so that, should the individual be shown not to pose a risk to patients or staff, the RDPH can be notified and can consider if the alert letter should be withdrawn. Where practicable, the initiating organisation will also wish to keep track of any civil case (eg, where a patient sues a practitioner through the courts). While such a process is underway, the initiating organisation should keep the RDPH informed on a monthly basis. Once the process is completed and a decision reached, there should be no need to continue to monitor or review the existence of the alert letter. The RDPH will need to satisfy him/herself on an annual basis that existing alert letters are still relevant.
32. As part of the monitoring process, the RDPH (where appropriate as a result of representations from the initiating organisation) must ensure that the alert letter is rescinded should the concern for the safety of patients and/or staff be removed. Each case must be considered on its merits and alert letters should not remain in force any longer than necessary in terms of protecting patients or staff. The individual concerned must also be advised by the initiating organisation when the letter has been withdrawn. It must be made clear on the face of the informing letter that the decision was made by the RDPH.
33. The RDPH should maintain and keep up to date a list of all alert letters he or she has issued and where applicable the date on which they were rescinded.
34. The RDPH should retain all details relating to the alert letter for five years after it has been rescinded. The existence of a rescinded letter would form an important piece of evidence should the same individual again be considered to pose a serious potential or actual risk to patients or staff at a later date.
35. There may be occasions where an NHS employer wishes to appoint an individual who is the subject of an alert letter (after making contact with the named contact on the alert letter) or a Primary Care Trust wishes to employ or include the individual on the Medical or Supplementary list. If an NHS employer proposes to employ or include on its list an individual who is subject to an alert letter, careful thought must be given to appropriate safeguards. Any decision, one way or the other, by the prospective employer must be justified, and if in doubt, legal advice should be sought from the prospective employer's solicitors. Where the RDsPH are made aware of such a decision or proposed decision, they should consider consulting the Department's Solicitors.
Statutory regulatory bodies
36. Where an alert letter is issued, the case must be referred to the regulatory body as a matter of urgency, unless there are exceptional circumstances (see paragraph 19).
37. If the regulatory body concludes its consideration of the case in terms that allow the individual to continue in practice, either with or without conditions, the RDPH and initiating organisation should review the need to continue the alert letter. It does not automatically follow that the alert letter should be withdrawn – there may be other reasons for continuing it. If it is decided to continue with the alert letter, both the RDPH and the initiating organisation must be prepared and able to defend this decision against legal challenge."
"2. In February 1991 Dr D came to this country to work. He was initially granted limited registration as a doctor. In the same month he started work as a Senior House Officer.
3. On 1st and 4th March 1991 two women patients (W & H) alleged that Dr D had indecently assaulted them in the course of treatment. Dr D denied the allegations. In April a disciplinary hearing resulted in a final warning for Dr D and a recommendation that he have a chaperone present when examining women patients. Later the same month one of the two patients (W) who had made the original complaints went to the police. Dr D was interviewed and bailed in respect of both complaints. In September 1991 another patient (P) alleged that Dr D had indecently assaulted her, on two different occasions. Dr D was charged with 4 offences of indecent assault in respect of patients W, H & P. In November 1991 following the publicity surrounding the charges a fourth woman patient (B) made an allegation of indecent assault. This assault was also said to have taken place in September 1991. Dr D was interviewed and charged in respect of that allegation.
4. At some time between charge and trial Dr D surrendered his registration as a doctor.
5. In October 1992 Dr D was tried at the Crown Court and acquitted on all five counts of indecent assault by a jury.
6. In December 1992 Dr D applied to be registered with the General Medical Council (GMC). An investigation was carried out by the GMC. In July 1994 Dr D was granted limited registration for 6 months under the sponsorship of a consultant and admonished for having failed to accede to the advice of the disciplinary hearing of April 1991 to have a chaperone present when examining women patients. Dr D resumed work within the National Health Service (NHS)."
"The Chairman [sc. of the Overseas Committee of the GMC] has asked me to explain that the investigations carried out have been thorough and that the information available to her included statements from five female patients who considered that your examination of them had been improper and inappropriate… The Chairman also had before her information relating to your appearance at Liverpool Crown Court on charges of indecent assault and your subsequent acquittal of any criminal charge, including a transcript of His Honour Judge Lynch's summing up…
Having considered all the information available to her the Chairman has concluded that, in her opinion, the standard of your professional behaviour fell short of that expected of a doctor practising in the United Kingdom. In particular, she noted that following allegations made by two of the patients which resulted in a disciplinary hearing in April, 1991 you were advised to take care to avoid similar incidents and to have a nurse chaperone in attendance when examining female patients but that you failed thereafter to follow that advice. The Chairman was also concerned to note that it appeared from some of the patients' statements that you failed to explain why you considered it necessary to undertake breast and/or vaginal examinations and that you did not seek the patients' consent before carrying out such examinations. She deplored this failure to adhere to adequate standards in respect of communication with patients.
After careful consideration, the Chairman has advised that it will not be necessary to refer to a Committee of the Council for consideration the question whether, in the light of your behaviour, any question arises as to your character for the purposes of registration under the Medical Act 1983. The Chairman has however asked me to stress that if the Council were to receive further information of similar conduct on your part you should not assume that you will again be treated so leniently."
"7. In 1997 he obtained full registration from the GMC. In 1999 he was working in a hospital within the North West Region of the NHS.
8. In July 1999 two further allegations of indecent assault were made by two women patients on different occasions. Dr D was suspended and his contract was not renewed when it expired. An AL was issued about which no complaint was made. In December 1999 the Crown Prosecution Service (CPS) advised the police that there was insufficient evidence to afford a realistic prospect of conviction and Dr D was informed that he would not be prosecuted in respect of the latest allegations. The hospital trust had referred the case to the GMC who then proceeded to consider it in July 2002. At the close of the prosecution case the Professional Conduct Committee ruled that there was no case to answer in respect of one of the complaints and recused itself from continuing to hear the second complaint. In March 2003 solicitors acting for the GMC advised that they did not wish to proceed with the second complaint and the Notice of Inquiry was cancelled. The AL was not cancelled and remained in force. Dr D did not know this.
9. In October 2004 Dr D became aware of the existence of the AL and took steps to have it cancelled. The Medical Director of the relevant NHS Trust was not happy and on 1st November 2004 he wrote to the North West Regional Director for Public Heath (RDPH), Professor Ashton as follows:
'Following two serious complaints of assault against the above doctor, I requested you to issue an alert notice in 1999. Dr D was employed here as a locum SHO in Accident & Emergency. Both incidents, separated by four weeks, involved psychologically vulnerable young women. We terminated our contract, informed the GMC and handed investigations to the police, who later informed me that similar accusations had been brought against Dr D in a previous employment but had been dropped for lack of reliable evidence.
It has only recently come to my attention that although the police pursued their investigations, the Crown Prosecution Service subsequently decided they had insufficient evidence to secure a conviction and the GMC likewise dropped the case in 2003. Neither the CPS nor the GMC informed this Trust of their decisions.
As an employer with responsibility for the safety of patients, and in particular for those who are especially vulnerable, I feel aggrieved I was not informed of the first case by the GMC. I realise that he had not been found guilty, but a plain statement of the facts that there had been an investigation would have helped to prevent the third accusation. As there still is no accepted proof of guilt, I now find myself in the position of having to ask you to withdraw the alert notice, which I do with reluctance.
The withdrawal of the alert notice will remove the only warning to future employers that this doctor has had (at least) three accusations of the same nature made against him: statistically useful information. I hope you will be able to use my dilemma for further discussions within the Department of Health and that some solution might be found.'
10. (In fact the Director was in error. He had himself informed Professor Ashton by letter on 17th December 1999 that the CPS had decided to not to prosecute Dr D. At that date however the GMC proceedings were of course still live.)
11. On 5th November 2004 the Trust wrote to solicitors for the claimant as follows:
'With reference to your letter dated 15 October 2004, I can confirm that I have today written to Professor Ashton, Director of Public Health at the North West office of the Department of Health, to ask him to withdraw the alert notice issued in 1999. I can also confirm that neither the GMC nor the Crown Prosecution Service had informed this Trust that charges against Dr D had been dropped.'
Dr D was informed, as were all relevant potential future employers of Dr D.
12. However, the matter did not end there. On 9th December 2004 the Medical Director wrote to Professor Ashton:
'Further to my letter to you dated 1st November 2004, concerning the above doctor, I still have serious misgiving about the withdrawal of the alert letter. I realise that the Crown Prosecution Service and the General Medical Council have decided not to proceed with any action against him for the lack of reliable evidence.
I acknowledge that paragraph 7 of HSC2002/011 and paragraph 1 of annex 1 to that circular suggest that an alert letter should normally be withdrawn when the regulatory body/police have determined to take no further action. However, paragraphs 7 and 32 within the annex appear to allow for alert letters to be retained in appropriate cases following such determination. I now believe this is one such case.
If a man who wishes to perpetrate sexual assaults on young women is put into a position where he can select those whose clinical condition automatically makes them unreliable witnesses, he will never be successfully prosecuted. Potential future employers checking with the GMC will see no indication of the previous history. I understand that the issuing of an alert letter is a neutral act and it could give a potential employer the opportunity of knowing that concerns have been raised as well as the fact that evidence was considered weak. They would then be in a position to make up their own minds whether he might be suitable for a particular post. On these grounds I would ask you to reinstate the alert notice at the earliest opportunity.'
13. On 20th December Professor Ashton issued an AL to the same recipients of the earlier letter cancelling the previous AL. It reads in part:
'The above named person was employed as a locum SHO in A&E medicine at …Trust.
Should the above named person apply to you for a permanent position or locum work or work in any capacity you are advised to contact (the medical director at the trust).'
14. A telephone number was supplied for potential enquirers.
15. On 22nd December Professor Ashton wrote to the medical director:
'I would like to thank you for your letter detailing your continued concerns about Dr D following the cancellation of the Alert Letter on 5 November 2004.
Due to the unusual circumstances of this case I have sought legal advice prior to making my decision. As a result of this advice I have decided to again issue the Alert Letter for this Doctor.
I would like to take this opportunity to remind you of the obligations which the issuing of the Alert Letter places upon you. You should:
1. Inform Dr D of the decision to issue the Alert Letter.
2. Ensure that Dr D gets a copy of the Alert Letter. In the absence of a known current address for the person concerned, you should write under confidential cover to the person's address as registered with their regulatory body.
3. Discuss the significance of the Alert Letter with Dr D and provide a summary of the reasons for this action.
4. Advise Dr D that he now has the right to appeal against the decision to issue this alert letter. Please explain this process to him and the timescales involved. I would advise you to state an actual date for the deadline to avoid any misunderstandings (rather than '21 days').
5. Forward any appeal received to this office unaltered as soon as possible, together with any comments you wish to make.
6. Contact my office immediately in writing if you form the view that the Alert Letter needs to be cancelled.'
16. On 12th January 2005 Dr D was informed of the decision by letter from the Medical Director.
'I write to notify you that the Regional Director of Public Health, North West Public Health Group, had decided to again issue an Alert Letter with regard to yourself (copy attached). If you wish to discuss the significance of the Alert Letter or the reasons for this action, please contact me at the above address.
You have the right to appeal against the decision to issue this alert letter. If you wish to do so, you should provide written representation setting out why you are challenging the decision to me before 4th February 2005. I will then forward your correspondence to the Regional Director of Public Health, Professor John Ashton.'
17. On 13th January Dr D's solicitors wrote to Professor Ashton and to the Medical Director, their client having only been notified that day of the new AL. They asked, reasonably enough, for reasons in writing for the new decision before submitting their representations.
18. On 14th January 2005 the Trust sent a document entitled "Summary of Concerns" and asked for representations by 14th February 2005. This read as follows:
- The Crown Prosecution Service and the General Medical Council have made decisions not to proceed with any action against Dr D.
- Paragraph 7 of HSC2002/0111 and paragraph 1 of annex 1 to the circular suggest that an alert letter should normally be withdrawn when the regulatory body/police have determined to take no further action.
- However, paragraph 7 within the annex appears to allow for alert letters to be retained in appropriate cases following such determination. This may be one such case.
- It is understood that the allegations against this doctor were of a criminal nature and related to sexual offences against female patients. The allegations appear to have related to vulnerable patients who where mentally ill or incapacitated. It is understood that, subsequently, a view was taken that such patients were not fit to give evidence within the context of any criminal law prosecution. However, in view of the predatory (sic) nature of the allegations against the doctor this may be one of the exceptional cases falling within paragraph 7 to the annex where the Regional Director for Public Health might conclude that the doctor may be a potential danger to other patients to the extent that an alert letter should remain in force notwithstanding that the doctor had been convicted of no offence.
- Potential future employees (sic) checking the GMC status will have no indication of these concerns which exist as a result of previous history.
- The issuing of an alert letter is a neutral act and it gives a potential employer the opportunity of understanding that concerns have been raised even though there has been no formal action taken by the GMC or CPS.
- Employers would then be in a position to determine whether Dr D might be suitable for the particular post for which he is being considered.
- On the basis of the above, Professor J Ashton was requested to issue an alert letter by the Medical Director.
19. On 3rd February Dr D's solicitors put in detailed reasons, with enclosures principally concerned with the 1999 allegations, in an attempt to persuade the Regional Director to cancel the AL."
This letter of 3 February 2005 from the solicitors in fact described the 1999 allegations in great detail, and also the course of the proceedings before the Professional Conduct Committee of the GMC which related to those allegations. It included extensive submissions about the history of the ALs, attached a series of primary documents including statements from the 1999 complainants, and made a series of detailed and substantial points to support the argument that the issue of the second AL on the same facts as the first was "unreasonable, irrational, disproportionate, and [violated] our client's human rights".
"On 15th February 2005, the agreed date between the parties for time to run for the purposes of issuing proceedings for Judicial Review, Professor Ashton replied as follows:
'Thank you for forwarding the appeal submitted by Hempsons on behalf of Dr D [sc. the 3 February letter]. In line with the guidance HSC 2002/001, I have considered the appeal submitted by yourselves on behalf of Dr D and have decided to maintain the Alert Letter. This decision was given to the Trust yesterday with a further letter sent today clarifying in more detail, the reasons for this decision. In line with aforementioned guidance, the NHS Trust, as the initiating organisation, should also formally notify you of this decision.
In making this decision I have considered all the evidence available to me which includes five allegations made against Dr D by four patients… in 1991. These allegations appear to be of a similar nature to those made by the two patients at the Trust some years later.
If it is the case that Dr D has faced 7 allegations from 6 wholly unrelated patients there would be a significant risk of liability on the part of the Health Service if no Alert were in place. I also fully appreciate the seriousness for Dr D of having an Alert Letter in place. I therefore concluded that the Alert Letter should remain in place but that further investigations will now take place to ensure that all the facts are fully established.
There is to be a fixed time frame for these investigations to take place of approximately three months, with a view to producing a final decision for Dr D on the 23rd May 2005. In any case, every effort will be made to ensure that the matter is dealt with in good time and if it becomes apparent from the information submitted that the Alert Letter should be withdrawn before this date I will do so immediately.
Please accept this letter as a formal invitation for Dr D to fully participate in the investigation and as such I invite Dr D to submit any comments he wishes to make at this time in relation to the allegations made whilst working at… or at the Trust. I would be grateful if this information could be forwarded to this office by Monday 14th March.
In the meantime I have stressed the importance to the Trust (as the contact point stipulated in the current Alert Letter), that it is to be made clear to any potential employer who contacts them that Dr D had not been found guilty of any misconduct whether by criminal courts or the GMC.
If you feel there is any further information that would be pertinent to this investigation I would ask that you include this in your submission.
Should you wish to discuss anything mentioned in this letter, please contact Dr Gary Cook, Deputy Regional Director of Public Health in the first instance. His contact details are at the top of this letter.'
20. There followed further correspondence in which Dr D's solicitors put in further representations concerning the 1991 matters. The opportunity to take part in a further investigation was not accepted. The representations were unsuccessful. The Claim in these proceedings was issued on 19th March 2005."
A HISTORY OF ERRORS
THE QUESTION IN THE CASE
THE APPELLANT'S GENERAL CASE
"In determining what should be done the overriding priority must remain to protect the public, particularly children and other vulnerable people."
As I have said that was a case concerning convictions and not mere suspicions. But in R(X) v Chief Constable West Midlands  1 WLR 65, discussing s.115 of the Police Act 1997, Lord Woolf CJ observed (paragraph 37):
"This [sc. disclosure of relevant information absent good reason to the contrary] 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."
THE SEARCH FOR PRINCIPLE
"Each case must be judged on its own facts. However, in doing this, it must be remembered that the decision to which the police have to come as to whether or not to disclose the identity of paedophiles to members of the public, is a highly sensitive one. Disclosure should only be made when there is a pressing need for that disclosure. Before reaching their decision as to whether to disclose the police require as much information as can reasonably practicably be obtained in the circumstances."
The ECHR had not by that time been incorporated into domestic law although, as the court noted (428G), the parties were agreed that "the actions of the [police] had to be judged against the background of the requirements of article 8". And the expression "pressing need" reflects language often deployed in the Strasbourg court. However it is plain that the court's conclusion which I have cited states the common law of England. In Re V, Re L  1 FLR 267 Butler-Sloss LJ as she then was stated (273H):
"Although the facts in the [AB] case are entirely different from those in the present appeals, the caution urged by the Master of the Rolls that 'disclosure should only be made when there is a pressing need' is of general application…"
"In my view, the guiding principles for the exercise of the power to disclose in the present case are those enunciated in [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. That is because the consequences of disclosure of such information for the subject of the allegations can be very damaging indeed."
Dyson J proceeded to identify three specific factors which in his view would have to be considered by a public body (he referred to police and the local authority) contemplating disclosure to a third party of "allegations of child sex abuse" – but, no doubt, they are not specific to that kind of case:
"(i) Its [viz. the discloser's] own belief as to the truth of the allegation. The greater the conviction that the allegation is true, the more pressing the need for disclosure…
(ii) The interest of the third party in obtaining the information. The more intense the legitimacy of the interest in the third party in having the information, the more pressing the need to disclose is likely to be…
(iii) The degree of risk posed by the person if disclosure is not made…"
I would not, with respect, formulate the first of these considerations quite as Dyson J did. The strength of the discloser's subjective belief in the allegation is really neither here nor there. He may believe on little evidence, or disbelieve on much. But I would certainly accept that the objective force of the evidence which supports the allegation is an important aspect. The third consideration is as a matter of logic difficult to apply without forming a view as to how likely it is that the allegations are true; but in some cases, including it may be this one, that will be a problematic exercise.
THE TEST IN DOMESTIC LAW
IS THE "PRESSING NEED" TEST MET HERE?
Lord Justice Longmore:
Lord Justice Ward: