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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> W, R (on the application of) v Warwickshire Police  EWHC 406 (Admin) (02 March 2012)
Cite as:  EWHC 406 (Admin)
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QUEEN'S BENCH DIVISION
1 Bridge Street West
B e f o r e :
HONORARY RECORDER OF MANCHESTER
(sitting as a deputy High Court Judge)
| THE QUEEN (ON THE APPLICATION OF W)
|- and -
|CHIEF CONSTABLE OF WARWICKSHIRE POLICE
Jeremy Johnson QC (instructed by Warwickshire County Council Resources Group, Solicitors) for the Defendant
Hearing dates: 13 th February 2012
Crown Copyright ©
JUDGE GILBART QC:
113B Enhanced criminal record certificates
(1) The Secretary of State must issue an enhanced criminal record certificate to any individual who—
(a) makes an application in the prescribed manner and form, and
(b) pays in the prescribed manner any prescribed fee.
(2) The application must—
(a) be countersigned by a registered person, and
(b) be accompanied by a statement by the registered person that the certificate is required for a prescribed purpose.
(3) An enhanced criminal record certificate is a certificate which—
(a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with subsection (4), or
(b) states that there is no such matter or information.
(4) Before issuing an enhanced criminal record certificate the Secretary of State must request the chief officer of every relevant police force to provide any information which, in the chief officer's opinion—
(a) might be relevant for the purpose described in the statement under subsection (2), and
(b) ought to be included in the certificate.
(6) The Secretary of State must send to the registered person who countersigned the application—
(a) a copy of the enhanced criminal record certificate, and
(b) any information provided in accordance with subsection (5).
The Certificate in Issue
"Police Records of Convictions, Cautions, Reprimands and WarningsNone Recorded
Information from the list held under section 142 of the Education Act 2002None Recorded
ISA Children's Barred List informationNone Recorded
ISA Vulnerable Adults' Barred List informationNone Recorded
Other relevant information disclosed at the Chief Police Officer's discretion
Warwickshire Police holds the following information concerning the Applicant (Mr W) born…………that in the opinion of the Chief Officer might be relevant to this application and ought to be disclosed under Part V of the Police Act 1997:In 2002, (Mr W) was employed as a teacher at a school for children with learning disabilities, including autism. Between March 2002 and September 2002, 4 separate incidents were reported where it was alleged that (Mr W) had assaulted or used excessive force on pupils.In March 2002, a 15 year old boy alleged that (Mr W) had hit him in assembly. This matter was dealt with internally by the schoolIn April 2002, a multi-agency strategy meeting considered reports from the parents of a female pupil that Mr W had touched her bottom and squeezed her arm leaving a red mark. This matter was dealt with internally by the school.In September 2002, a classroom assistant reported that in June 2002 (Mr W) had kicked a classroom door shut on her and a pupil, causing both the pupil and assistant's hand/arm to be caught in the doorframe.On 12 September 2002, an allegation was made that (Mr W) had deliberately slammed a classroom door on to a pupil's hand, causing a significant injury. This allegation resulted in a police investigation. Mr W was not charged.(Mr W) was subsequently dismissed from the school but was successful in proceedings before the Employment Tribunal for unfair dismissal. The Employment Tribunal is not believed to have had evidence before it (in) respect of the March April and June 2002 allegations."
(a) might the material identified in the certificate be relevant ?
(b) ought it to be included ?
At the first stage, it is for the Chief Constable to form an opinion as to whether the information might be relevant- see Lord Hope (with whom Lord Saville JSC Lord Brown JSC and Lord Neuberger of Abbotsbury MR all expressly agreed) in R(L) v Commissioner of Police for the Metropolis  UKSC 3  1 AC 410 at paragraph 39. The threshold is a low one, and may extend to mere suspicions or hints of matters which are disputed by the applicant; see Lord Neuberger of Abbotsbury MR at paragraph 77.
"Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"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."
"44…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,  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  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.
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 rights. 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."
" 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  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  1 WLR 65, para 67, Lord Woolf MR, disagreeing with the view to the contrary of Wall J at first instance ( EWHC 61 (Admin),  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  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."
" 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."
65 The function of the court is one of review, not decision on the merits. But what is the appropriate standard of review? That was not an issue considered by the Supreme Court in L though it had been touched on tangentially by the Court of Appeal: R (L) v Commissioner of Police of the Metropolis (Secretary of State for the Home Department intervening)  EWCA Civ 168,  1 WLR 681, paras -. But subsequent authority makes it clear that the applicable standard of review is not the Wednesbury test of irrationality; what is required in this sensitive area of human rights is the more intense standard of review described by Lord Steyn in R (Daly) v Secretary of State for the Home Department  UKHL 26,  2 AC 532, para . In a case such as this, proportionality requires the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions; this goes further than the traditional grounds of review inasmuch as it requires attention to be directed to the relative weight accorded to interests and considerations: R (H and L) v A City Council  EWCA Civ 403,  UKHRR 599, para .
66 That is therefore the approach we have to apply when considering the substance of the chief officer's opinion. But if and insofar as there is a 'reasons' challenge – and part of Mr de Mello's attack here goes to the reasons as set out by Ms Davies – the court must not be astute to find failings. I venture to repeat what I said very recently in R (E, S and R) v Director of Public Prosecutions  EWHC 1465 (Admin), para , a 'reasons' challenge to a Crown Prosecutor's decision to prosecute which, in the event, was held by the Divisional Court not to have been compliant with the relevant guidance issued by the Director of Public Prosecutions:
"… a decision such as this is to be read in a broad and common sense way, applying a fair and sensible view to what the decision maker has said … as Lord Hoffmann pointed out in Piglowska v Piglowski  1 WLR 1360, 1372, reasons should be read on the assumption that, unless she has demonstrated the contrary, the decision maker knew how she should perform her functions and which matters she should take into account."
And I went on to point out the need to have very much in mind his warning that an appellate court – and the same must also go for this court – must "resist the temptation to subvert the principle that they should not substitute their own discretion for that of the [decision maker] by a narrow textual analysis which enables them to claim that he misdirected himself."
" 70 For my part, I think that the following principles can be derived from the judgments in Powergen and Danaei: (i) the decision maker whose decision is under challenge (in the former case, the local highway authority; in the latter, the Secretary of State) is entitled to exercise his own discretion as to whether he should regard himself as bound by a finding of fact made by an adjudicative tribunal (in the former case, the planning inspector; in the latter, the special adjudicator) in a related context; (ii) a decision to reject a finding of fact made by an adjudicative tribunal in a related context can be challenged on Wednesbury grounds; (iii) in particular, the challenge can be advanced on the basis that the decision to reject the finding of fact was irrational; (iv) in determining whether the decision to reject the finding of fact was irrational the court will have regard to the circumstances in which, and the statutory scheme within which, the finding of fact was made by the adjudicative tribunal; (v) in particular, the court will have regard to the nature of the fact found (e.g. that the immigrant was an adulterer), the basis on which the finding was made (e.g. on oral testimony tested by cross-examination, or purely on the documents), the form of the proceedings before the tribunal (e.g. adversarial and in public, or investigative with no opportunity for cross-examination), and the role of the tribunal within the statutory scheme.
"……..JS was experiencing difficulties. This student is subject to bullying from other students and this group in general. On this occasion it was CA who was the culprit……..to avoid an incident I sent JS out of the room. I gave him a task to complete…………….as soon as he entered the room he felt the animosity from the group and immediately left without my consent…………………….Eventually JS looked in through a locked door.. As soon as CA saw JS he rushed out of the room, clearly intending to go after JS and cause him harm. Before I was able to respond he had left the room and the door closed behind him on the self closer.
As I turned back to the class AF had begun to charge out of the room after CA. I firmly believed that his intentions were to support his friend CA and to do harm to JS.
As AF moved to the door I followed. I cannot be clear about who arrived at the door first. However AF placed his left hand on the door handle and pulled the door with some considerable force. By this time I was standing next to AF, and the door hit my foot……….I did not touch the door or AF, but the door bounced off my foot and began to close. In so doing AF must have had his hand in the space between the door and its frame, trapping a finger. …………………….I am…. sure that I did not lay hands on AF or the door. The accident was as a result of his actions trying to escape from my room to do damage to another pupil………………"
(a) Mr Andy Parker, the Chief Constable of Warwickshire Police since 1st December 2011, and before that Deputy Chief Constable from July 2007. Before that he had been Assistant Chief Constable (from January 2005) and acting Deputy Chief Constable from July 2006;
(b) Mr Neil Brunton, who has been Deputy Chief Constable since 1st December 2011, and was before that Assistant Chief Constable from April 2010, and before that Chief Superintendent;
(c) Superintendent Martin Samuel, Head of Operations Support and Planning since February 2010, and before that Head of Intelligence from February 2008;
(d) Superintendent Naveed Malik, Head of Intelligence since January 2011. As Head of Intelligence he is responsible for the Information Disclosure and Compliance Team, which deals with certificates of this kind. He has particular experience of dealing with the protection of children and vulnerable adults
(a) There was evidence of tension and conflict between Mr W and his then Head Teacher in 2002
(b) Mr W had no previous disciplinary matters recorded against him
(c) On the evidence, it was not possible to exonerate the Claimant and say that he had not used excessive force while teaching at the school, and that despite the challenging environment, his behaviour and actions may not always have been appropriate
(d) There was a need to balance the Claimant's rights against those of children and vulnerable young adults who may be taught by him. It was necessary to provide potential employers with relevant information, which was that which suggested that he may have used excessive force on more than one occasion. That was "clearly relevant to any post where he may be working with children, in particular ones which involved with difficult and/or violent children or those with special needs."
(e) While anxious not to make a judgement about how the Claimant deals with stress, yet the then Deputy Chief Constable believed that the evidence demonstrated concerning behaviour. It was a difficult working environment, yet there a number of incidents in a short space of time, and some independent witnesses had provided accounts. While there were no slurs on his professional ability and the Employment Tribunal had exonerated him, the Chief Constable and his officers concluded that it was appropriate and proportionate to disclose the material, particularly if he were to apply for a job in similar circumstances.
"I have decided to make this amendment for all of the following reasons- it appears to indicate a different pattern of behaviour to the other matters disclosed, it was not corroborated or tested, and over the last 8 years nothing of a similar nature has been reported."
"I recognise the impact that disclosure is likely to have on the Claimant's ability to secure a post teaching children in the future. However it was my clear professional view that the balance between his rights and those of children whom he may teach fell in favour of protecting children from the potential harm in the future and that as such, we should authorise disclosure of the information in such cases."
He endorsed the approach that he would not favour disclosure if the post applied for involved the Claimant working with adults at a College.
"It is my professional judgement that in this case disclosure was necessary and proportionate. Given the seriousness of the allegations made, the views of those investigating the assault allegation as to the weight of the evidence, and the corroboration provided in a series of 4 allegations in a 6 month period, I believe the need to protect children in this case outweighs the Article 8 rights of the claimant."
" Against a background of 4 separate allegations over 6 months, I was concerned about how we would justify to a future employer having not disclosed any information, if there were to be a future incident or injury involving the Claimant."
" It is clear that we should not have a standard response and that we have to consider each case in context. However we had considered the source material- the crime file, including statements, letters and the views of the investigating officers- in detail and had discussed the case openly and frankly. We reached a clear position that we believed, having determined that the information " might be true" and " ought to be included in the certificate" that disclosure would satisfy the statutory test in principle. We also considered carefully the article 8 rights of the Claimant and recognised that he could be adversely affected by any disclosure made. However we also have to protect children and vulnerable adults from harm and, given the context of the allegations and the weight of evidence which resulted in the Detective Inspector confirming that there would have been sufficient evidence to charge the Claimant in respect of the serious injury caused to the pupil in September 2003, I believed the rights of the children to be protected outweighed those of the Claimant."
Grounds argued by the Claimant
(a) The phrase " might be relevant" in section 113B (4) requires clear evidence, or if it falls short of amounting to evidence, something which is cogent. It cannot be rumour, tittle-tattle or mere assertion;
(b) The material referred to did not pass that test;
(c) On the fourth incident, while it is accepted that it cannot bind the Defendant, the findings of the Employment Tribunal should carry great weight. The Police wrongly asserted that the Tribunal had no access to the statements in the case of the fourth incident, and that it had no knowledge of the other assertions;
(d) On the second part of the test, the application of the criteria used by Lord Neuberger in L made disclosure disproportionate;
(e) The incidents took place in a particular and challenging situation, not in a general teaching position;
(f) Great weight should apply to the Claimant's record;
(g) The alleged incidents were over 9 years old.
(a) The test at the first stage is not whether the allegations were the subject of an adverse finding, but whether they might be true;
(b) The officers were plainly entitled to conclude that the allegations might be true;
(c) The Employment Tribunali. did not conclude that the allegation could not be trueii. only heard direct evidence about the incident from Mr Wiii. did not analyse the other incidents, and was apparently unaware of two of them, including the third one, which is of particular significanceiv. could not bind the officers;
(d) the third and fourth incidents are strikingly similar;
(e) The officers applied the correct proportionality balance, taking account of his long unblemished record, the fact that there were no positive findings against him, the findings of the Employment Tribunal, and the effect disclosure would have on his ability to gain employment. They also considered the fact that he could apply for positions which would not require an enhanced criminal records certificate, and had done so in the past. However they concluded, and could properly have done so, that in relation to posts which would involve significant unsupervised access to children or vulnerable adults, it was relevant and proportionate to disclose the allegation.
(a) The child who was injured says that Mr W took his hand, and then deliberately shut the door on it
(b) Other children present did not see exactly what happened. They did not suggest that there was a deliberate trapping.
(a) as a matter of fact the child CA had made a statement. There is no suggestion in it that he had anything to do with closing the door. Of course at the time he gave it, he was unable to comment on the Claimant's later contention that it was CA who had been responsible for closing it, as he had not then put it forward. A finding by the Tribunal that CA had done so in the absence of any evidence from him about that, might be thought to be unwise, not to say potentially quite unfair to both AF and CA ;
(b) I am troubled by the fact that the Tribunal has effectively discounted the evidence of the injured child (that the Claimant had shut the door on to his hand) as being untrue (whether because it thought he was unreliable or a liar) when it had never heard him give evidence;
(c) it knew nothing of the incident that had occurred in June. Had this matter been tried in a criminal court after 1st April 2004, there would have been a very powerful case for the admission of that evidence under section 101(1)(d) of the Criminal Justice Act 2003. Before that date there would have been a strong case for its admission as similar fact evidence at common law;
(d) the Tribunal was aware of the first incident, but there is nothing in its decision which suggests that it had any knowledge of the second or third incidents. In its decision it gave no consideration to whether the incidents revealed any form of pattern of conduct.
(i) the decision maker whose decision is under challenge is entitled to exercise his own discretion as to whether he should regard himself as bound by a finding of fact made by an adjudicative tribunal in a related context;
(ii) a decision to reject a finding of fact made by an adjudicative tribunal in a related context can be challenged on Wednesbury grounds;
(iii) in particular, the challenge can be advanced on the basis that the decision to reject the finding of fact was irrational;
(iv) in determining whether the decision to reject the finding of fact was irrational the court will have regard to the circumstances in which, and the statutory scheme within which, the finding of fact was made by the adjudicative tribunal;
(v) in particular, the court will have regard to the nature of the fact found………….., the basis on which the finding was made (e.g. on oral testimony tested by cross-examination, or purely on the documents), the form of the proceedings before the tribunal (e.g. adversarial and in public, or investigative with no opportunity for cross-examination), and the role of the tribunal within the statutory scheme.
Note on anonymity
"Where, as here, the basis for any claimed restriction on publication ultimately rests on a judicial assessment, it is therefore essential that (a) the judge is first satisfied that the facts and circumstances of the case are sufficiently strong to justify encroaching on the open justice rule by restricting the extent to which the proceedings can be reported, and (b) if so, the judge ensures that the restrictions on publication are fashioned so as to satisfy the need for the encroachment in a way which minimises the extent of any restrictions."
Order and Application for permission to Appeal