|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> A, R (on the application of) v Kent Constabulary  EWCA Civ 1706 (20 December 2013)
Cite as:  EWCA Civ 1706
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
The Hon. Mrs Justice Lang DBE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BEATSON
LADY JUSTICE GLOSTER
| The Queen on the application of A
|- and -
|The Chief Constable of Kent Constabulary
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ian Wise QC and Gemma Hobcraft (instructed by Royal College of Nursing Legal Services) for the Respondent
Hearing date: 6 November 2013
Crown Copyright ©
Lord Justice Beatson :
I Overview of issues and outcomes
II The legal framework
"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 required to comply as soon as practicable with a request under section 113B. Sub-paragraphs (a) and (b) require an ECRC to contain information which the chief officer "reasonably believes to be relevant" to a post caring for children or vulnerable adults and ought, in the chief officer's opinion to be included in the certificate.
"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."
" will always be a matter of judgment, but the starting point will be to consider whether the information is from a credible source. Chief officers should consider whether there are any specific circumstances that lead them to consider the information is unlikely to be true or whether the information is so without substance that it is unlikely to be true. In particular, allegations should not be included without taking reasonable steps to ascertain whether they are more likely than not to be true."
"If there is a legitimate aim pursued, the next step is to consider whether the disclosure of the information is necessary to pursue that aim including consideration of whether there are any other realistic and practical options to pursue that aim. If disclosure is considered necessary to pursue that aim then the question becomes one of proportionality. In practice, this will involve weighing factors underpinning relevancy, such as seriousness, currency and credibility, against any potential interference with privacy. All decisions must be proportionate. This means that the decision is no more than necessary to achieve the legitimate aim and that it strikes a fair balance between the rights of the applicant and the rights of those the disclosure is intended to protect. It is therefore essential that the reasoning in reaching a decision is fully and accurately recorded in each case."
The last sentence of paragraph 22 is also embodied in principle 7, that "information for inclusion should be provided in a meaningful and consistent manner, with the reasons for disclosure clearly set out."
III The facts
"5. [A] is an experienced registered nurse who qualified in Nigeria and held senior nursing positions. On relocating to the UK in 2006, she worked in various nursing homes in the UK, as a nurse registered with the Nursing and Midwifery Council.
6. In September 2010 [A] was employed by Southern Cross Healthcare as a staff nurse on night duties at C Nursing Home. It was a 32 bed care home, with nursing, for patients over 65 years of age suffering with dementia and physical ailments. They were all vulnerable and needed high levels of care. Some of them displayed challenging behaviour.
7. Allegations were made against [A] by health care assistants (identified by initials) who worked with [her]. Some allegations were made to their employer, Southern Cross, who referred the matter to the police. Further allegations were made to the police. In summary, the allegations were:
a) CH alleged that, between 15th September 2010 and 4th April 2011, [A] forced a patient to drink by pinching her cheeks together and pouring tea into her mouth, which then flowed down the patient's cheeks and neck. [A] denied this allegation.
b) MB alleged that, on 1st March 2011, a patient asked [A] "Why did you hit me?" and [A's] response was to laugh and say "I'm going to beat you in a minute". The patient told the health care assistant that she did not like [A]. MB said she had previously seen [A] grab this patient by the top of her arms and push her into her bedroom. [A] denied these allegations. The patient denied that she had been hit, although she was found not to have capacity to give evidence on this matter.
c) SL alleged that, on 1st April 2011, when a patient was observed having a minor fit, [A] was asleep on duty and could not be woken. [A] subsequently altered the patient's notes, to remove the reference to a fit, saying that the patient was twitching. [A] denied these allegations. The patient had a chronic condition which caused her eye lid to twitch; she had been seen by the GP recently and given medication for this. Sometimes this developed into a fit. SL, who is not a qualified nurse, had wrongly recorded a fit, and [A] explained her mistake to her.
d) SL alleged that, on 1st April 2011, [A] pushed a soapy dirty flannel into a patient's mouth for a couple of seconds, when a patient was yelling during a bed wash, and told her to shut up, and then laughed. When challenged by SL, [A] told SL to shut up. [A] denied these allegations.
e) SL, MB, CH and RH alleged that [A] regularly slept for hours on shift leaving them to work alone. [A] denied this allegation, stating that she was far too busy with nursing duties during the night to sleep for long periods. She explained that the staffing rota was one nurse per floor, but because of staff shortages, she frequently had to carry out nursing duties, such as medication rounds and attending to patients, on two floors. This was why the health care assistants could not always find her on their floor.
8. [A] said that the allegations were made maliciously because the health care assistants resented the way in which she managed them, for example, telling them off for failing to use gloves and aprons to ensure hygiene and avoid cross-infection; incorrect manual handling techniques; slack working, such as over-long smoking breaks.
9. The patients concerned did not have mental capacity to give evidence or attend court. When interviewed, they either could not speak at all, or did not give a reliable account.
10. On the basis of these allegations, [A] was suspended and following an investigation and a disciplinary hearing, she was dismissed on 14th April 2011. Southern Cross referred the case to the police and the Independent Safeguarding Authority.
11. On 24th May 2011 [A] was interviewed by police and denied all the allegations in detail. She also said that the health care assistants who had made the allegations had a grudge against her because [A] had rebuked them for unprofessional working practices and they considered that she was too strict.
12. [A] appealed against her dismissal under her employer's internal appeal procedure. Mrs Broom, a Manager, was appointed to conduct an investigation. She considered the material obtained in the initial investigation; conducted interviews with MB, SL, and a bank nurse, JT, on duty at the same time as them, and the Claimant. She examined the care home records. She concluded in her report:
'Both carers have made serious allegations about this nurse, and have sustained these both in writing and at interview. However, apart from their word, there is no other evidence to support the allegations.
There is scanty evidence to support [A]'s evidence, but what there is does support her. On the 1st April, the occasion that the resident fitted and the carer she was unable to wake [A], [A] has made an entry in the residents file precisely during the period the carer said she was asleep. When [MB] complained that [A] spent two hours upstairs, she was the only nurse on duty, and had nursing duties to perform on both floors, which obviously meant that she was absent on occasions from both floors. The bank HCA [JT] was on duty on all of the occasions when the allegations were to have taken place, and she denied ever seeing [A] sleep, or of not participating in care delivery, but did mention that her demeanour to the residents was not polite or respectful.
Whilst this evidence does not completely disprove the allegations made against her, it does cast some doubt on the accuracy of all the allegations. Hence, there is no evidence to support any of the allegations made about [A] and she should be reinstated.'
13. On 1st June 2011, Mrs Broom wrote to [A] stating that 'a further more detailed investigation failed to discover any supporting evidence to any of the allegations'. [A] was fully reinstated. However, when [A] returned to work, she was upset at the way she was treated and handed in her resignation.
14. The allegations were referred to the Independent Safeguarding Authority ("ISA"), as required. On 14th June 2011, the ISA wrote to [A] in the following terms:
'We have now concluded our enquiries and have carefully considered all the information available to us. On the basis of this information we have decided that it is not appropriate to include you in the Children's Barred List or the Adults' Barred List.'
15. Kent Police referred the allegations to the Nursing and Midwifery Council ("NMC"), [A's] professional regulatory body. An interim conditions of practice order was made for a period of 18 months from 8th February 2012.
16. On 16th May 2012, Mrs Broom, the Manager who investigated the allegations on behalf of Southern Cross Healthcare in 2011, was interviewed by the police, and gave a full account of what the health care assistants and [A] had told her in interview, her analysis of the records, and the outcome of her investigation. In addition to the points made in her report, Mrs Broom said that the health care assistants said that they did not like [A] and found her difficult to work with. MB made a racist remark about her. In relation to the patient who allegedly had a fit, Mrs Broom found that the Night Check Book had two entries made by SL, at 3.25 am and 4.25 am, saying that the patient was fine, which was not consistent with SL's entry in the patient records at 4 am saying that she had a fit. She considered that [A's] account was genuine. Mrs Broom also concluded that the original investigation and disciplinary hearing had not been properly conducted and [A] had not been given the opportunity to defend herself against the allegations.
17. On 12th June 2012, the Crown Prosecution Service ("CPS") notified [A] that the prosecution would not offer any evidence against her. Its letter stated:
'The reason for this course of action is that after careful consideration of the evidence and issues in this case, including a very recently received statement which would significantly undermine the reliability of two of the main prosecution witnesses, the only proper course of action now, applying the Code for Crown Prosecutors, is to offer no evidence.'
18. On 18th June 2012, the prosecution offered no evidence and [A] was acquitted.
20. On 3rd August 2012, the Defendant received a request from the Criminal Records Bureau for an enhanced check to be made in respect of [A] concerning her proposed employment by a nursing agency.
21. The Defendant's vetting unit considered the information held in its records relating to [A] and applied its standard procedures, under which the allegations were carefully assessed and considered by several officers. [A] was given the opportunity to make representations on the proposed disclosure, which she did by letter from the Royal College of Nursing dated 28th September 2012."
IV The terms of the 12 October 2012 entry in the ECRC
"Other relevant information disclosed at the Chief Police Officer(s) discretion
Kent Police holds the following information which we believe to be relevant to the application of [A] (date of birth 03/12/1961).
The information relates to the alleged mistreatment of several elderly and vulnerable adults resident in the care home in which [A] worked as a Registered General Nurse. Kent Police believes this information to be relevant to an employer's risk and suitability assessment when considering [A]'s application for the position of Registered Nurse involving regular contact with children and vulnerable adults because, if [A] were to mistreat individuals in her care, this could occur in a similar environment when working as a Registered Nurse with children and/or vulnerable adults.
The information held by police is that:
Between 15/09/2010 and 04/04/2011, [A] allegedly pinched the cheek of the first injured party, an 85-year-old female resident of the care home, in order to force her mouth open, and then pour tea into her mouth.
On 29/03/2011, [A] allegedly dismissed an allegation made by the second injured party, an 81-year-old female resident of the care home, who asked why [A] had hit her.
On 01/04/2011, [A] allegedly failed to attend to the third injured party, another 81-year-old female resident of the care home, who was thought to have suffered a fit.
On 01/04/2011, [A] allegedly put a flannel into the mouth of a fourth injured party, a 76-year-old female resident of the care home.
On 24/05/2011 [A] was interviewed by police and denied all the allegations.
On 18/06/2012 [A] appeared at Maidstone Crown Court to answer four separate charges of ill-treat/neglect care of person who lacks capacity of donee of lasting power of attorney, and was found not guilty of all charges, no evidence being offered, and the case was dismissed.
After careful consideration, Kent Police believes that this information ought to be disclosed because the alleged incidents occurred less than two years ago and the injured parties were all vulnerable adults in a care home environment. There is concern that children and vulnerable adults under the care of [A] may be subjected to mistreatment. It is therefore concluded that the impact of [A]'s right to privacy is outweighed by the potential risk posed to children and vulnerable adults and disclosure of this information is necessary, justified and proportionate to safeguard the vulnerable group.
On 12/09/2012 a letter was sent to [A] giving her the opportunity to make representations about the above information. On 02/10/2012 a letter was received from the Royal College of Nursing, on behalf of [A]. They referred to the fact that [A] was acquitted at court and the prosecution offered no evidence against [A] following careful consideration of the evidence and issues in the case, including a statement that had recently been received which they considered would significantly undermine the reliability of two of the main prosecution witnesses. The Royal College of Nursing added that [A] has an exemplary record and a stated commitment to the care and welfare of patients."
"In my opinion this information is not so without substance that it is unlikely to be true and thus make disclosure disproportionate because, whilst a statement was received that undermined the evidence of two main prosecution witnesses, there were others who had raised concerns about [A], including allegations that she would sleep whilst on night shift."
Ms Bottomley also stated that she had acquired a copy of the statement of Mrs Broom which the CPS regarded as undermining the evidence of two main prosecution witnesses. She took that into account, but remained concerned by the allegations made against A, not only by them but by others who also worked with her. She considered that the information accurately reflected the data held by Kent Police and provided a balanced account, including reference to the fact that the CPS decided to offer no evidence after carefully considering the evidence, including Mrs Broom's statement.
" I believe that the infringement of [A]'s human rights is outweighed by the potential risk posed to the vulnerable group as, while release of this information will result in interference to [A]'s private life, and disclosure may impact on her employment prospects within this field, I believe that interference can be justified when considered against the risk that she may cause vulnerable individuals harm through neglect/mistreatment. The nature of the information and its degree of relevance to the post applied for are such that disclosure is reasonable and proportionate. In this instance, disclosure is not outweighed or undermined by an adverse impact on the prevention or detection of crime."
V The decision of the Nursing and Midwifery Council
"The panel considered the report prepared by the external firm of lawyers instructed in this matter, supported by statements and exhibits from the two witnesses interviewed. The report advises that there is insufficient evidence to establish that there is a case for the registrant to answer on the facts. The report further advises that there is no real prospect of a finding of impairment of current fitness to practise."
VI The judgment below
"I consider that the Administrative Court has to carry out a similar exercise, as it is the sole court with power to review whether the [Chief Constable]'s decision will result in a breach of [A]'s human rights. In doing so, it has to consider [A]'s human rights as at the date of the court hearing. If it confines its consideration to a date in the past, and ignores the current position, it might itself in breach of [A]'s rights, contrary to section 6(1) HRA 1998." (at ).
"(a) in relation to the patient who allegedly had a fit while the Claimant was sleeping, Mrs Broom found that the Night Check Book had two entries made by SL, at 3.25 am and 4.25 am, saying that the patient was fine, which was not consistent with SL's entry in the patient records at 4 am saying that she had a fit;
(b) on the same occasion as (a) above, at the time the Claimant was alleged to have been sleeping, she made an entry in the records proving she was not asleep;
(c) on another occasion, at the time the Claimant was alleged to have been neglecting her duties and sleeping/resting, the records showed that she was covering for an absent nurse on another floor;
(d) a bank health care assistant (JT) was on duty on all of the occasions when the allegations were said to have taken place and said she had not witnessed the Claimant displaying any lack of care or sleeping on duty, but that her demeanour to residents was not polite or respectful."
VII The questions for decision in this appeal
(1) Did the judge err in concluding that the Chief Constable applied the wrong legal tests, applied too low a threshold when considering the issue of credibility, and adopted a decision-making procedure which was flawed?
(2) Did the judge err in conducting an impermissible "merits review" of the decision rather than the "higher intensity review", which is required in a claim for judicial review in which Convention rights are at issue? (Grounds 1 and 2). Mr Basu submitted that the judge undertook what was in substance a paper trial of the allegations against A and A's response to them, and (Grounds 7 and 9) that she erred in making findings of fact that, on the balance of probabilities, the allegations were either exaggerated or false. Linked to that question is whether the judge effectively treated the reliability of the allegations as a threshold question rather than a factor to be put into the balance with others, and if so whether she erred in doing so.
(3) Was the judge entitled to place any weight on material which was not and could not have been available to the decision-maker at the time of the decision to disclose the information (Ground 5)? The judge took into account the decision by the NMC on about 12 December 2012 to which I have referred at  above that there was insufficient evidence to establish a case for A to answer, and there was no real prospect of a finding of impairment of current fitness to practise against A. The question is whether the court was entitled to consider such post-decision material when assessing proportionality. There are two limbs to it. The first, which does not arise in this case, is whether such material may be considered when the court is scrutinising the lawfulness of the Chief Constable's decision to disclose. The second is whether, if that decision is found to be unlawful, the court can take post-decision material into account when re-making the proportionality decision. The reason the first does not arise is that the judge's reference to the NMC in the section of her judgment dealing with Ms Bottomley's assessment of proportionality (see  above) does not consider the decision of the NMC as part of the scrutiny of Ms Bottomley's assessment. It was concerned only with the inference from the error in Ms Bottomley's witness statement of a cavalier attitude to the decisions of other bodies.
(4) Did the judge err in her approach to the decisions of other bodies (the Crown Prosecution Service ("the CPS") , the Independent Safeguarding Authority ("the ISA"), and Southern Cross) which had considered the allegations and concluded that they were not a sufficient basis for taking action against A or in her approach to and assessment of an internal investigation conducted for Southern Cross by Mrs Broome (Grounds 3, 4 and 6)?
VIII Analysis and conclusions
(i) The nature of the exercise
(ii) Erroneous consideration of the decision-making process
(iii) Impermissible paper trial?
(iv) Did the judge err in regarding reliability as a threshold question?
(v) Post-decision/post-disclosure material
"In summary: where it is required in order to give effect to an occupier's Article 8 Convention rights, the court's powers of review can, in an appropriate case, extend to reconsidering for itself the facts found by a local authority, or indeed to considering facts which have arisen since the issue of proceedings, by hearing evidence and forming its own view."
"unless the appellate court is confined to a primarily reviewing function, it will have some sort of half-way house role between review and reconsideration. This would seem to me to be unprincipled and to be liable to cause confusion to actual and potential litigants as well as to the judiciary. Additionally, the introduction of a second layer of judicial assessment of proportionality is likely to lead to increased cost and delay in many cases."
(vi) The role of this court
Lady Justice Gloster
Lord Justice Pitchford