R(A) v The Chief Constable of Kent Constabulary

Summary: An application was made to the Chief Constable for information to be included in an enhanced criminal record certificate in respect of a registered nurse, A, ahead of her proposed employment by a nursing agency. The Chief Constable was required by s.113B(4) of the Police Act 1997 to provide any information which he reasonably believed to be relevant for the purpose described in the statement and, in his opinion, ought to be included in the certificate. The Head of the Vetting Unit at Kent Police decided to disclose allegations of ill-treatment and neglect that dated from A's previous employment at a nursing care home and which lead to four charges of ill-treatment and neglect of the residents. As was explained the certificate, no evidence was brought and the case against A was dismissed.

The decision to disclose the information was said to have been made on the basis that: "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."

Mrs Justice Lang upheld A's application for judicial review, applying the decision of the Supreme Court in R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3. In that case the Court rejected the previous approach to disclosure, which gave priority to the social need to protect the vulnerable as against the right to respect for the private life of the applicant. In L, Lord Hope stated that the correct approach, as in other cases where competing Convention rights are in issue, is that neither consideration has precedence over the other.

In the present case, the Chief Constable argued that L did not apply as one of the allegations against A would, if proven, have amounted to inhuman and degrading treatment contrary to Article 3. As such, the absolute right in Article 3 took precedence over the qualified right in Article 8. Mrs Justice Lang described this submission as misconceived and went on to say (at para 35):

"The legitimate aim of protecting the rights and freedoms of others under Article 8(2) includes protection for all rights, including those under Article 3. It is not limited to the Article 8 rights of others, even though that may have been the position on the facts in L. Plainly, when considering necessity and proportionality under Article 8(2), the gravity of the risk to others is a critical consideration, as indicated by Lord Neuberger in L. at [81]. The more grave the risk, the greater the likelihood that the interference with an Article 8(1) right will be justified. But the risk of a breach of Article 3 does not avoid the legal requirement to justify the interference under Article 8(2) in each case."

Nor did Article 3 impose any positive obligation to disclose the information.

Although, on a conventional judicial review approach, the role of the Court was limited to reviewing the relevant decision and leaving it to the Chief Constable to remake the decision, Mrs Justice Lang accepted that she was also required to decide whether or not the Chief Constable was right in deciding that disclosure was proportionate and would not be in breach of A's Article 8 rights. Mrs Justice Lang recognised that if she found that disclosure was not proportionate, the Chief Constable would, in effect, be required to re-make the decision in accordance with her assessment of proportionality, in the absence of a material change of circumstances.

Mrs Justice Lang considered that too low a threshold had been applied when considering the credibility of the allegations and that the evaluation of the evidence was inadequate (at paras 49-67). She found it was significant that the allegations had been considered by the care home at the time, as well as by the CPS, the Independent Safeguarding Authority and the Nursing and Midwifery Council, each of which found that the allegations were not a sufficient basis upon which to take action against N. Mrs Justice Lang concluded (at para 95):

"On the balance of probabilities, I consider that [the allegations] are either exaggerated or false. When assessing proportionality under Article 8(2), and balancing the need to protect vulnerable patients from the risk of ill-treatment, against the harm caused to [N] by disclosure, the balance tips in favour of non-disclosure when it is more likely than not that the allegations are either exaggerated or false. A fair balance must be struck between the interests of the community and the protection of the individual's rights, and it is disproportionate for [N's] professional life to be blighted in this manner when the allegations have been repeatedly found to be unreliable."

The decision to disclose was found to have breached N's rights under Article 8 accordingly.

Comment: Although this case does not directly concern the work of the Court of Protection, it has been included as a salutary reminder of the importance of ensuring proper respect is afforded to an individual's private life, including in the context of safeguarding allegations and investigations, and the need to adopt a rigorous approach to evaluating the credibility of such allegations before taking any decision to disclose such information.