A, R (on the application of) v Kent Constabulary [2013] EWCA Civ 1706

Case No C1/2013/0865[2013] EWCA Civ 1706
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2013] EWHC 424 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon. Mrs Justice Lang DBE
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/12/2013
Before
LORD JUSTICE PITCHFORDLORD JUSTICE BEATSONLADY JUSTICE GLOSTER
Between
The Queen on the application of ARespondentThe Chief Constable of Kent ConstabularyAppellant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Dijen Basu (instructed by The Force Solicitor) for AppellantIan Wise QC and Gemma Hobcraft (instructed by Royal College of Nursing Legal Services) for RespondentHearing Hearing date: 6 November 2013
JudgmentLord Justice Beatson :I Overview of issues and outcomes
[1]In order to protect vulnerable groups, including children and residents of nursing and care homes, provision is made by the Police Act 1997 as amended (“the 1997 Act”) for the Criminal Records Bureau (“the CRB”) to issue an enhanced criminal record certificate (“ECRC”) to those applying to work with such groups. The information disclosed in an ECRC is information the relevant chief constable considers “might be relevant” and “ought to be included”. It can include allegations about criminal or other behaviour which have not been substantiated whether in the courts, in regulatory proceedings, or otherwise, as well as details of any recorded convictions. The effect of disclosing such information is often, in practice, the end of any opportunity for the individual to be employed in an area for which an ECRC is required. Balancing the risks of non-disclosure to the interests of the members of the vulnerable group against the right of the individual concerned to respect for his or her private life is a particularly sensitive and difficult exercise where the allegations have not been substantiated and are strongly denied.[2]This appeal concerns the way the appellant, the Chief Constable of Kent Constabulary, balanced those interests in the case of the respondent, A, who was formerly a staff nurse employed by Southern Cross Healthcare at a care home for elderly persons suffering with dementia and physical ailments. On 12 October 2012, following a decision made on behalf of the Chief Constable by Ms Gillian Bottomley, head of the Central Vetting Unit of the Kent Police, allegations that A had neglected and ill-treated four female residents of the home while she was working night shifts there made by several of her former colleagues were disclosed in an ECRC.[3]The disclosure in the ECRC is set out at [12] below. In summary, it recorded that criminal charges had been brought against A in respect of the allegations but at the Crown Court no evidence was offered, she was found not guilty of the charges, and the case was dismissed. It also recorded the representations made on behalf of A by the Royal College of Nursing stating that the decision to offer no evidence against A followed consideration by the CPS of all the evidence, including a statement which the CPS considered would significantly undermine the reliability of the two prosecution witnesses.[4]On 8 March 2013, Lang J held that the disclosure amounted to a disproportionate interference with A’s right to respect for her private life and was therefore an unlawful interference with her right to private life under Article 8 of the European Convention on Human Rights (“the ECHR”). She stated ([2013] EWHC 424 (Admin) at [81]) that, despite an impressive record of employment as a senior nurse, the disclosure prevented A from obtaining permanent full-time employment in her profession, and that its impact on her was, and would continue to be, grave.[5]Lang J stated (at [95]) that the allegations “have been repeatedly found to be unreliable”, and were “either exaggerated or false”. She also (at [81]) described the reliability of the information upon which the allegations were based as “highly questionable”. Her Order, made on 8 March 2013, quashed the decision to disclose the information, declared (at paragraph 3 of her order) that the decision to disclose it constituted an unlawful interference with A’s right pursuant to Article 8, and ordered damages to be assessed at a subsequent hearing.[6]The Chief Constable appeals against that order. I summarise the grounds upon which he does so at [35] but they can be distilled into two principal contentions. The first is that the judge conducted an impermissible paper trial of the merits, making findings of fact including findings about the reliability of witnesses. It was submitted on his behalf that he was the primary decision-maker, and that the judge went beyond the “higher intensity review” which is required in a claim for judicial review of a decision where Convention rights are at issue and in substance assumed the role of the primary decision-maker. The second is that the judge erred in relying on material which could not have been available to the Chief Constable at the time the decision to disclose was made or on the date of the disclosure. The question whether post-decision/post-disclosure material can be considered by the court arose again in R (L) v Chief Constable of Cumbria Constabulary [2013] EWHC 869 (Admin). In that case, Stuart-Smith J (at [24] – [27]), followed Lang J in stating that the court may and should take into account such material when scrutinising the lawfulness of a disclosure by the police in an ECRC.[7]The remainder of this judgment is divided into five sections. Sections II – VI contain a summary of the legal and regulatory framework, the facts, the terms of the disclosure about A in the ECRC, and the judge’s reasoning. Section VII sets out the questions for decision in this appeal. Section VIII contains my analysis and my reasons for concluding that the judge was correct to find that the Chief Constable’s decision was flawed, but that she fell into error in her assessment of proportionality. Her approach towards the material before her at points came very close to being fact-finding, which is (save in the case of jurisdictional facts and in the circumstances discussed in E v Secretary of State for the Home Department [2004] EWCA Civ 49, reported at [2004] QB 1044) inappropriate for a reviewing court, but did not do so. However, in taking account of material which could not have been available to the Chief Constable at the time the decision to disclose was made, she did err. I then consider the role of this court, and whether the interference with A’s right under ECHR Article 8 to respect for her private life resulting from the disclosure made on 12 October was proportionate and thus justified. I conclude that the interference was disproportionate and therefore unlawful. Accordingly, I would not set aside paragraph 3 of the judge’s order.

II The legal framework

[8]This consists of the 1997 Act, the jurisprudence, and statutory guidance issued by the Home Office in 2012. By section 113B(4) of the 1997 Act:
“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. (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.”[9]The leading decision on section 113B(4) is that of the Supreme Court in R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3, reported at [2010] 1 AC 410 (“L’s case”). It is clear from that decision that the information disclosed may be information that does not involve any allegation of criminal behaviour on the part of the person employed in a post caring for children or vulnerable adults or applying for such a post (see [51]). It follows from this that whether any such information which “might be relevant” “ought” to be included requires a balance to be struck between the need to protect children and vulnerable adults from the risk of harm and the employee or prospective employee’s right under Article 8 of the European Convention on Human Rights (“the ECHR”) to respect for his private life: L’s case at [42].[10]In L’s case Lord Neuberger (at [81]) gave guidance about the balancing process and examples of the different and sometimes competing factors which have to be weighed up by the decision-maker. He stated:
“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.”
He continued:
“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.”
[11]In July 2012 the Home Office issued guidance under section 113B(4A) of the 1997 Act (“the statutory disclosure guidance”) to assist chief officers of police in (see paragraph 2) “making appropriate, proportionate and consistent decisions in providing information from local police records for inclusion in enhanced criminal record certificates (ECRCs)”. The statutory guidance also contained a number of principles. Those material in the present context are principles 2 and 3, respectively that “information must only be provided if it is reasonably believed to be relevant for the prescribed purpose”, and “information should only be provided if the opinion is that it ought to be included”. Paragraph 13 of the statutory guidance states that, in order to decide whether he or she reasonably believes material to be relevant, the chief officer must consider a number of factors, in particular the credibility and reliability of the information.[12]Paragraph 18 under principle 2 deals with credibility. It states that the question whether information is sufficiently credible:
“…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.”
[13]As to the question whether information that the chief officer has a reasonable belief is relevant should be included in the certificate, paragraph 22 states:
“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.”[14]Principle 8 concerns delegation of a chief constable’s responsibilities. Paragraph 4 inter alia states that “where delegation occurs, the chief officer should ensure that the delegate has regard to this statutory guidance”.

III The facts

[15]The facts are conveniently summarised by the judge. She stated:
“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.” 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. ‘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.’ ‘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.’ ‘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.’

IV The terms of the 12 October 2012 entry in the ECRC

[16]I first set out the terms of the 12 October 2012 entry in the ECRC about A made in response to the CRB’s request dated 3 August. I will then summarise the reasons given by Ms Bottomley for deciding to disclose in these terms. The entry stated:
“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.”

The information held by police is that:

[17]Ms Bottomley recorded the reasons for her decision to make the disclosure in those terms on the pro forma “audit trail” form AT3. She stated how she had applied the eight principles in the statutory disclosure guidance. The judge set out the reasons recorded by Ms Bottomley in relation to the material principles, principles 2 and 3, in [51] of her judgment.[18]For present purposes, it suffices to state, in relation to principle 2, that Ms Bottomley considered the information relevant because A was applying for a post of registered nurse involving regular contact with children or vulnerable adults and the information related to allegations of mistreatment of elderly and vulnerable residents in a care home. She considered that the allegations were of sufficient gravity to justify their inclusion, and that the alleged incidents, which were said to have occurred in 2010 and 2011, were sufficiently current to be considered relevant. She stated:
“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.[19]The section on principle 3, that information should only be provided if the decision-maker is of the opinion that it ought to be included, deals with the impact of disclosure on A’s private life having regard to her Article 8 rights. Ms Bottomley stated:
“… 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

[20]After the reference by the Kent Police to the Nursing and Midwifery Council (“the NMC”), the NMC instructed Morgan Cole, a firm of solicitors, to conduct an external investigation. Morgan Cole advised the NMC that there was insufficient evidence to establish a case against A and no real prospect of a finding of impairment of fitness to practise. The NMC’s decision is contained in a letter dated 12 December 2012 two months after the decision that is challenged in these proceedings. In that letter, the NMC’s Investigating Committee Panel notified the Claimant that it had decided that there was no case to answer. The letter stated:
“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

[21]The judge stated that the effect of the decision in L’s case was that the previous approach whereby there was a presumption to disclose unless there was good reason for not doing so no longer obtained. The precedence that had been given to the risk that failure to disclose would cause to the vulnerable group was removed. The Convention rights of the vulnerable group were not to be given precedence over those of the individual whose private life would be interfered with: see judgment at [28] – [33] referring in particular to Lord Hope’s judgment in L’s case at [44] and [45], and citing decisions of the Administrative Court applying the guidance given in that case.[22]The judge rejected Mr Basu’s submission that Lord Hope’s guidance in L’s case could not apply to a case such as this where Article 3 rights are in play in the sense that the allegations if true reached the threshold of inhuman or degrading treatment. She stated (judgment, [35] – [37]) that “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” and “it is not limited to the Article 8 rights of others, even though that may have been the position on the facts in L”. Mr Basu had conceded before the judge that his submission on this point may not make a difference and also did so in his written submissions to this Court. Although he maintained the submission and contended that it was inaccurately summarised by the judge at [34], there was no application to appeal this aspect of the decision. Although, it is therefore not necessary to address it, in my view the judge’s approach, which recognised that the graver the risk (as where there is a risk of breach of Article 3), the more likely it is that the interference with the Article 8 right will be justified was correct.[23]The judgment contains a section, “The role of the court in human rights claims”, in which the judge considered the decisions of the House of Lords in Huang v Secretary of State for the Home Department [2007] UKHL 11, reported at [2007] 1 AC 167, R (SB) v Denbigh High School [2006] UKHL 15, reported at [2007] 1 AC 100, Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19, reported at [2007] 1 WLR 1420 and those of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45, reported at [2011] 2 AC 10 and R (Quila) v Secretary of State for the Home Department [2011] UKSC 45, reported at [2012] 1 AC 621. The judge stated that the court, as a public authority for the purposes of the Human Rights Act 1998, is subject to the duty in section 6 of that Act not to act incompatibly with Convention rights.[24]While, as was stated in Huang and SB’s cases, in considering Convention rights “there is no shift to a merits review”, the judge stated (judgment at [42]) that in order to carry out the court’s role effectively to consider whether the human rights of a claimant have in fact been infringed “the court has to consider the facts as they are found at the time of its adjudication, and not limit itself to facts in existence at the time of the original decision”. She rejected the submission on behalf of the Chief Constable that the decision in Pinnock’s case was distinguishable because it was concerned with the review of a County Court’s decision. She did so because: “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 [43]).[25]The judge also stated (at [46]) that the issue was whether disclosure was proportionate in the light of the potential unreliability of the allegations and that, if the Chief Constable’s assessment of reliability was flawed, it would be wrong for her to conduct the proportionality exercise on the basis of that assessment of reliability. She stated “in those circumstances, I cannot properly conduct the proportionality exercise myself without first assessing the reliability of the evidence”.[26]The judge stated (at [57]) that, in deciding under principle 2 whether the material was “relevant”, the Chief Constable should have considered all the questions in paragraph 18 of the statutory disclosure guidance (summarised at [9] above). Ms Bottomley’s reasons (see [14] above), however, showed that she only asked one of the questions, whether the information was so without substance that it is unlikely to be true. The judge stated that Ms Bottomley did not consider the specific circumstances, that is the evidence of resentment on the part of the healthcare assistants towards A, and possible racism which might mean the allegations were untrue, or whether reasonable steps could have been taken to ascertain the truth of the allegations. The judge stated (at [58]) that in not reading all the relevant material, for example A’s police interview and possibly the statements of the two main healthcare assistants, or the documents arising from the investigation of Mrs Broome, the Southern Cross Healthcare manager, who investigated the complaint, Ms Bottomley “applied too low a threshold when considering the issue of credibility”.[27]The judge stated that Ms Bottomley appeared to have overlooked Mrs Broom’s conclusion that the care home records and the evidence of another healthcare assistant (JT) cast doubt on the accuracy of the allegations against A, and that her evaluation of the evidence was inadequate. As to the latter, she referred (at [59] – [60]) to the fact that Ms Bottomley made no reference to A’s defence, the evidence of hostility on the part of the healthcare assistants towards A, Mrs Broome’s finding that the records supported A’s account, and the contradictory evidence of JT.[28]The judge also accepted the submission on behalf of A that Ms Bottomley did not conduct the balancing exercise under Article 8(2) and consider proportionality properly because she did not mention the credibility or reliability of the allegations at that stage, and because she was not considering “whether the means employed were proportionate to the legitimate aim pursued or whether a fair balance had been struck between the interests of the community and the protection of the individual’s rights.” The judge considered that Ms Bottomley’s witness statement suggested that she “gave primacy to the risks to vulnerable adults ahead of the risk of unfairness to a falsely accused employee”, thus reflecting the view which was rejected by the Supreme Court in L’s case.[29]In this section of the judgment the only reference to the decision of the NMC is in the judge’s criticism (at [63] – [64] and [66]) of Ms Bottomley’s witness statement. In that, Ms Bottomley stated that, in reaching her decision, she was aware of the fact that the Independent Safeguarding Authority (“ISA”) had not barred the claimant and the NMC had not considered that A had a disciplinary case to answer. The latter could not be true since the decision by the NMC was only made in December 2012. The judge stated (at [64]) that Ms Bottomley’s misstatement of the position in respect of the NMC decision was careless and “betray[ed] a cavalier attitude towards the decisions of other bodies, causing me to doubt whether she had appropriate regard to them”. She concluded (at [66]) that it was highly relevant to the assessment of reliability and credibility that the CPS had decided there was insufficient evidence to prosecute, the ISA had decided not to take even preliminary steps towards barring A, and that Southern Cross had decided that the allegations could not be relied on. For those reasons, she concluded that the Chief Constable had applied the wrong legal tests and adopted a decision-making process which was flawed, and (at [67]) that the decision to disclose the allegations was unlawful and should be quashed.[30]It therefore fell to the judge to conduct the assessment of proportionality herself. I have summarised her conclusion at [3] above. I now summarise her approach and reasoning. She stated (see [25] above) that she could not assess proportionality properly without first assessing the reliability of the evidence. Her starting point was to consider what weight to give Ms Bottomley’s views. She concluded (judgment, [74]) that she could only give limited weight to them. This was (ibid, [70] – [73]) because Ms Bottomley relied heavily on the reports of DC Preece, who recommended that A be prosecuted, that DC Preece had not interviewed Mrs Broom, who conducted the internal investigation on behalf of Southern Cross, and did not, in her report, refer to A’s successful appeal against the dismissal or Mrs Broom’s conclusion that there was not enough evidence against A and that she believed A rather than the two witnesses against her.[31]After referring to the analysis of the proportionality exercise in Huang’s case and L’s case, and the factors which would typically have to be taken into account in striking the balance between the right of the vulnerable to be protected from the risk of harm identified by Lord Neuberger in the latter case, the judge focused on the three factors relevant in this case. These were the gravity of the material involved, the impact on A’s prospects of future employment as a nurse if the material was disclosed, and the reliability of the allegations. She stated (judgment, [82]) that the nature of the allegations of neglect and misconduct towards vulnerable elderly patients “plainly give rise to concern”. She also stated that the allegations and disclosure of them are directly relevant to A’s future job applications for employment as a nurse. But, as I stated at [3] above, she considered that the reliability of the information upon which the allegations were based was “highly questionable”.[32]The judge placed weight on Mrs Broom’s evidence. She stated (judgment, [83]) that Mrs Broom has “expertise in care home management”, that she “carried out an independent and thorough investigation” and that she concluded that the allegations against A were not substantiated. The judge stated (ibid, [83]) that Mrs Broom’s reasoning “was convincing”. She gave four reasons for this. They were:
“(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.”
[33]The judge stated (ibid, [84]) that the evidence disclosed overt hostility on the part of the healthcare assistants towards A, including racist remarks. This, together with the views of MB and SL that A was “too strict” and had a forceful personality bordering on rude and a controlling management style, lent support to A’s “assertions that these allegations were motivated by resentment towards her, which potentially undermined their reliability”: ibid, [89].[34]The judge also considered (ibid, [90]) that the fact that the CPS, the ISA, Southern Cross and the NMC concluded “after careful consideration of the evidence” that the allegations were not a sufficient basis upon which to take action against A was important. She recognised that each body applied different criteria, but considered it to be “highly significant that all these bodies have reached a similar conclusion”. She took into account the fact that the remit of the investigations by NMC and Southern Cross went beyond the allegations of abuse and extended to questions of unprofessional practice, but the conclusions were nevertheless that there was no case against A. In relation to the NMC, she stated (ibid, [91]) that its decision that there was no case to answer was “highly significant because of its expertise and experience in nursing, including the care of vulnerable adults”. The judge considered that the NMC had sufficient evidence upon which to make a reliable judgment. She stated that Morgan Cole had obtained the crime report, witness statements by DC Preece, and A’s police interview from the Kent Constabulary, and the NMC had a statement from Mrs Broom. She stated that it was reasonable to assume that the NMC was satisfied that the allegations had been adequately investigated because otherwise it would have postponed its decision and directed that further investigations be pursued.

VII The questions for decision in this appeal

[35]The principal questions for decision in this appeal are:(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 [20] 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 [29] 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.

(i) The nature of the exercise

[36]It was common ground between the parties that, where the question before a court concerns whether a decision interferes with a right under the ECHR and, if so, whether it is proportionate and therefore justified, it is necessary for the court to conduct a high-intensity review of the decision. The court must make its own assessment of the factors considered by the decision-maker. The need to do this involves considering the appropriate weight to give them and thus the relative weight accorded to the interests and considerations by the decision-maker. The scope of review thus goes further than the traditional grounds of judicial review: see e.g. R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at [27].[37]There are also clear statements that it is the function of the court to determine whether or not a decision of a public authority is incompatible with ECHR rights. In R (SB) v Governors of Denbigh High School [2006] UKHL 15 at [30], Lord Bingham stated that “proportionality must be judged objectively by the court”. See also Lord Hoffmann at [68], Lord Neuberger MR in L’s case [2009] UKSC 3 at [74], and Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19. In the last of these decisions Baroness Hale stated (at [31]) that it is the court which must decide whether ECHR rights have been infringed. In Huang v Secretary of State for the Home Department [2007] UKHL 11 Lord Bingham also stated that the court must “make a value judgment, an evaluation”. But he made it quite clear (at [13]) that, despite the fact that cases involving rights under the ECHR involve “a more exacting standard of review”, “there is no shift to a merits review” and it remains the case that the judge is not the primary decision-maker. In Axa General Insurance Ltd v HM Advocate [2011] UKSC 46, Lord Reed (at [131]) stated that, “although the courts must decide whether, in their judgment, the requirement of proportionality is satisfied, there is at the same time nothing in the Convention, or in the domestic legislation giving effect to Convention rights, which requires the courts to substitute their own views for those of other public authorities on all matters of policy, judgment and discretion”.[38]In SB’s case Lord Bingham stated (at [30]) that the evaluation of proportionality must be made by reference to the circumstances prevailing “at the relevant time”. In these proceedings, possibly the issue between the parties with the widest implications is what his Lordship meant by “the relevant time”. I deal with this at [67] – [92] below.[39]Much consideration has also been given to the weight it is “appropriate” for the court to give to the judgment of the person who has been given primary responsibility for the decision. That person has, in the words of Lord Bingham in Huang’s case at [16], been given “responsibility for a subject-matter” and “access to special sources of knowledge and advice”. If that person has addressed his or her mind at all to the existence of values or interests which, under the ECHR, are relevant to striking the balance, his or her views and conclusions carry some weight. But, if the primary decision-maker has not done so, or has not done so properly, his or her views are bound to carry less weight and the court has to strike the balance for itself, giving due weight to the judgments made by the primary decision-maker on such matters as he or she did consider: see Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19 per Baroness Hale at [37] and Lord Mance at [47].[40]The starting point in considering the judge’s approach is whether she erred in concluding that Ms Bottomley, the Chief Constable’s delegate, was wrong to conclude that making the disclosure in the terms she did was a proportionate interference with A’s rights under Article 8. The judge stated that Ms Bottomley applied too low a threshold when considering credibility and the reliability of the allegations, and that this tainted her assessment of the proportionality of making the disclosure and meant that the decision was unlawful and should be quashed.[41]I have referred to the sensitivity of the balancing exercise where a Chief Constable or his delegate is considering including allegations which have neither been substantiated nor disproved in an ECRC. That sensitivity arises because what is being balanced is a risk to vulnerable individuals that arises because of the allegations and the probability of terminating an individual’s prospects of employment in an occupation, perhaps the only occupation for which he or she is qualified.[42]A judge scrutinising the way in which a Chief Constable or his delegate has approached this task has additional difficulties. The most significant of these arise from the greater intensity of review that is required when considering whether a right under the ECHR has been infringed. One aspect of this is how to deploy the correct degree of scrutiny and objectively to determine whether or not a decision is incompatible with ECHR rights without turning what the jurisprudence clearly states is a process of review of the decision of the primary decision-maker rather than a redetermination into a full-blown determination of the merits of the decision. Another aspect of this is how to deal with disputed facts.[43]There is no question, in the light of the authorities to which I have referred (at [37]), and to which the judge referred at [38] – [42], that she was absolutely right to conclude that it fell to her to decide whether the interference with A’s rights under ECHR Article 8 was proportionate. The disputed territory concerns whether, in so doing, she erred in concluding that the decision made on behalf of the Chief Constable should be quashed because (judgment [66] - [67] summarised at [29] above) Ms Bottomley “applied the wrong legal tests and adopted a decision-making process which was flawed”. The judge’s reference to the “wrong legal tests” is a reference to Ms Bottomley’s approach to the credibility and reliability of the allegations. Mr Basu did not directly argue that the judge erred in concluding that Ms Bottomley applied the wrong legal tests. His primary submissions concerned the judge’s consideration of the decision-making process rather than the substantive question of whether the interference was disproportionate, what he described as her impermissible paper trial of the allegations, and her reliance on material (the December decision by the NMC) which had not been made when Ms Bottomley made her decision. I address each in turn. (ii). Erroneous consideration of the decision-making process[44]Mr Basu submitted that the judge fell into the same errors as the House of Lords held this court fell into in SB’s case and the Court of Appeal in Northern Ireland fell into in the Miss Behavin’ case. In SB’s case the House of Lords held that the decision of a primary decision-maker will not be found to be disproportionate because the decision-maker did not follow a formal structure of reasoning. Lord Bingham stated (at [29]) that the focus is on whether a person’s rights under the ECHR have been violated and not whether the decision-making process was defective. Lord Hoffmann stated (at [68]) that in such cases the court is concerned with substance, not procedure, and what mattered was the result: was the right interfered with in a way which is not justified under the relevant EHRC provision, in that case Article 9(2).[45]In the Miss Behavin’ case it was held that errors in the reasoning process or a failure expressly to recognise that a particular course of action would interfere with a right under the ECHR did not render the decision disproportionate. Baroness Hale stated (at [31]) that “in human rights adjudication, the court is concerned with whether the human rights of the claimant have in fact been infringed, not with whether the administrative decision-maker properly took them into account”.[46]In DS v Her Majesty’s Advocate [2007] UKPC D1, reported at [2007] SC(PC) 1 Lord Rodger stated that “the House of Lords has made it clear that the decision on the compatibility with the Convention rights of…any action of a public authority does not depend on the anterior reasoning of the body concerned. If the court examines the matter objectively and comes to the conclusion that…action is indeed compatible with the Convention, the fact that the reasoning of the decision-maker may have been flawed is irrelevant for Convention purposes.” It is thus clear that decisions which bind this court have held that a public authority will not have acted in a way that disproportionately interferes with an individual’s rights under the ECHR because the procedure adopted or the reasoning used in arriving at the decision is flawed. As Mr Basu contended, the concern of the court must be with substance and with whether the interference with A’s right to privacy was in fact disproportionate. It does not, however, follow that the judge’s concern with that process was not relevant to her consideration of the question of substance.[47]The cases of SB and Miss Behavin’ were cases which were concerned with the absence of a need for what Lord Hoffmann in the Miss Behavin’ case (at [13]) referred to as “formulaic incantations” of the considerations used in the assessment of proportionality. They were cases in which, on a true analysis, the decision itself was a proportionate and justified interference with the right in question, but where the lower courts found that it was disproportionate solely because of the procedural defects. There are, however, other cases in which the decision-making process has been regarded as relevant in the context of the assessment of proportionality. They are cases in which the court determined an interference to be disproportionate.[48]The first of these cases is R (E) v Governing Body of JFS School [2009] UKSC 15, reported at [2009] 2 AC 728. The Supreme Court was considering the school’s policy of giving priority to children who were recognised as Jewish according to the Office of the Chief Rabbi, a policy which led to the claimant’s son not being offered a place. In the context of whether this was unlawful as indirect discrimination, Lord Hope stated (at [210]) that the question was whether putting the claimant’s son at a disadvantage was a proportionate means of achieving the school’s policy. The school had to show “that they had taken account of the effect of the policy on him and balanced its effect against what was needed to achieve the aim of the policy”, and (at [211]) the school had not shown that this was so. Lord Hope also stated (at [212]) that, as the school had not addressed whether there would be difficulties if a different criterion were to be adopted or if the criterion were to be applied less rigidly, “it is not entitled to a finding that the means that it adopted were proportionate”.[49]Lord Hope (at [213]) distinguished the cases of SB and Miss Behavin’ as cases in contexts where “the issue is one of substance, not procedure”. In the JFS case, the school was under a duty pursuant to section 71 of the Race Relations Act to “have due regard to the need…to eliminate unlawful racial discrimination”. See also Lord Mance at [96], [97] and [100], with whom Lord Kerr (at [123]) and Lord Clarke (at [154]) agreed. While the context of that case, in which there was a need to establish an evidential basis for the justification offered by the school, differs from the present case, the approach suggests that process is not wholly irrelevant to the assessment of proportionality.[50]R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55, reported at [2007] 2 AC 105 concerned a decision by police to prevent three coaches of protesters who were stopped at Lechlade from proceeding to attend a demonstration against the war in Iraq at RAF Fairford. At issue were rights of peaceful assembly under both common law and ECHR Article 11. The speeches in the House of Lords contain passages suggesting that, while, in an ECHR context, a structured process-based approach of the sort favoured by Brooke LJ in the Court of Appeal in SB’s case, is not required, the decision-maker must have carried out a proper assessment of the different interests and asked the right questions. Their Lordships held that the police’s decision to prevent the coaches proceeding to Fairford was a disproportionate interference with those rights. Lord Rodger stated (at [85]) that the police “must have regard to” the protesters’ Article 11 rights. Lord Carswell stated that the police “should have given consideration to whether the coaches could have been allowed to proceed to Fairford”. See also Lord Mance at [148] – [149].[51]Allowing for the difference of context, the observations of Lord Wilson in Re B (a Child) (FC) [2013] UKSC 33, reported at [2013] 1 WLR 1911 also have some resonance. One of the issues in the case was the criterion for appellate review of the determination of a court to make a care order, which he stated was whether the determination was “wrong” or “vitiated by serious procedural error”. Lord Wilson stated (at [46]) that “the factors which often vitiate the exercise of a discretion – namely that the judge considered an irrelevant matter, failed to consider a relevant matter, erred in law, or applied a wrong principle” do not become irrelevant when considering whether a decision is wrong and “they may well generate a conclusion that the [decision] was wrong and should be set aside”.[52]The JFS School and Laporte cases might possibly be explained as ones in which the defects in the decision-making process were in reality taking into account in assessing what weight to give to the views of the primary decision-maker, but the statements are not formulated in that way. They may rather reflect a category of case in which substance and procedure can be difficult to disentangle. The first case concerned a requirement that the decision-maker “have due regard to” the need to eliminate racial discrimination. The second case concerned the requirement that the Chief Constable had “a reasonable apprehension of an imminent breach of the peace. Whether this is so or not, they were not cases in which the procedure or process used was regarded as an end in itself or in which concern with it could be regarded as “formulaic”. While I respectfully agree fully with the deprecation of requiring “formulaic incantations” of the considerations to be taken into account, some concern with process may assist not only in determining whether a decision is wrong but by providing guidance to the primary-decision-maker in future cases and in achieving a better quality of decision: see, albeit in a slightly different context, the judgment of Lord Reed in Osborne v Parole Board [2013] UKSC 61 at [67]ff.[53]The present case is also one in which it can be said that substance and procedure are difficult to disentangle. I have stated that I consider the balancing process where a Chief Constable is considering disclosing an unsubstantiated allegation in an ECRC to be a sensitive and not straightforward process. In the present case, the matters not taken into account included the requirement in paragraph 18 of the statutory disclosure guidance to consider whether there are “any specific circumstances” which might have led the decision-maker to conclude that “the information is unlikely to be true”. The specific circumstances included the evidence of resentment by two of those who complained about A, and of a racist remark about her by one of them. The requirements of the statutory disclosure guidance may put the present case into the same category as the Laporte and JFS School cases in which a defective decision-making process is of some relevance.[54]Finally, it is not easy to see why a defect in the process such as acting for an improper purpose or taking account of irrelevant considerations or failing to take account of relevant ones, which would suffice where a case proceeds purely on the traditional domestic grounds of judicial review, becomes insufficient or irrelevant save as to the question of “weight” where the claimant additionally invokes a Convention right. It may be that the former would lead only to the invalidity of the decision on domestic law grounds, and, if it can be said that, notwithstanding such defects, any interference with a Convention right is proportionate and thus justified, that factor can be deployed at the remedial stage; that is, in considering whether to set aside the decision.[55]In the present case, it is not necessary to resolve these difficult questions. First, the judge also considered that Ms Bottomley applied the wrong legal tests, and, as I have indicated her conclusion on that matter was not in terms challenged. This is understandable in the light of the contents of the statutory disclosure guidance (see [12] above) and what Lord Neuberger said in L’s case (set out at [10] above) about the importance of considering the reliability of the material involved.[56]Secondly, even if the judge erred in considering Ms Bottomley’s decision-making process, she did later in her judgment herself assess the proportionality of the disclosure. The authorities require the court itself to make an objective assessment of proportionality. The judge did so. If, contrary to my conclusion, her assessment was not flawed, her conclusion, reflected in paragraph 3 of her Order, that the disclosure constituted an unlawful interference with A’s right pursuant to Article 8 would be unimpeachable. The fact that she may have fallen into error earlier in her judgment in taking into account the process adopted by the primary decision-maker does not affect the position. (iii). Impermissible paper trial?[57]Did the judge conduct an impermissible paper trial of the allegations? It is submitted by Mr Basu that she wrongly made findings “on the balance of probabilities” (at [95], emphasis added) that the allegations “have been repeatedly found to be unreliable” and were “either exaggerated or false”. The statements (at [84]) that Mrs Broom’s investigation was “independent and thorough” and her reasoning “convincing”, and (at [85]) that the evidence disclosed overt hostility towards A, including racist remarks, were also said to be inappropriate findings for a court exercising a reviewing jurisdiction. This submission and the detailed criticism of particular parts of the judgment highlights the difficulty, to which I referred (see [42], of the court when conducting a high-intensity review in order to determine whether or not a decision is incompatible with ECHR rights without turning the process into a full-blown determination of the merits of the decision.[58]Although it will in some cases be necessary for a court exercising the judicial review jurisdiction under CPR Part 54 to hear witnesses and make determinations of disputed questions of fact, the procedure is not designed or well suited for this: see e.g. R (A) v Croydon LBC [2009] UKSC 8, reported at [2009] 1 WLR 2557, at [33]. The supervisory role of the court means that in the great majority of cases this is not required. It may be necessary, as in R (A) v Croydon LBC, when the question before the court is a jurisdictional fact, in that case whether a person who has applied for asylum is under the age of 18 and a child. Hearing live evidence and making findings may also be necessary when determining whether there has been a breach of one of the rights under the ECHR: see e.g R (Wilkinson) v Broadmoor Hospital [2001] EWCA Civ 1545, reported at [2002] 1 WLR 419 and R (Al-Sweady) v Secretary of State for Defence [2009] EWHC 2387 (Admin), reported at [2010] HRLR 12, at [29].[59]It must, however, be borne in mind that in relation to jurisdictional facts the court's role is not to review the decision of another, it is to make a decision on the merits. The court has to do so on a question on which, see Baroness Hale in R (A) v Croydon LBC at [27], although difficult to determine in some cases, there is a right or a wrong answer. It is also of some significance (see [2001] EWCA Civ 1545 at [24]) that Wilkinson's case concerned an issue which might have been legitimately raised and fallen for decision in private law proceedings in tort for assault where oral evidence from the doctors would have been taken and Al-Sweady’s case concerned what the Divisional Court (at [18] and [19]) described as “hard-edged questions of fact” of “crucial importance” in determining which party would be successful.[60]I have referred to the fact that, because the legislation and the decisions on disclosures in ECRCs contemplate that disclosure will, in many cases, be made of disputed material, particular care must be taken in such cases before deciding to disclose. But, while there is a need for intense scrutiny of decisions to disclose such material, and proportionately must be judged objectively by the court, it is not "merits-review". Mr Basu was correct to caution against a reviewing process which will lead to the reviewing court regularly having to hear live evidence. A judicial review court may decline to go behind the written evidence or to form a view on a matter such as the credibility of a person: see the cases in Fordham’s Judicial Review Handbook 6th ed. 17.3.7(C). But, there are also many examples of a judicial review court making “findings” on the basis of the written evidence before it: see Fordham, op. cit. 17.3.7(B).[61]It is also important not to forget that, although it is for the court itself to assess proportionality, the process is essentially an evaluative one rather than one of determining a “hard-edged question of fact”. That is one of the reasons that the starting point of the court will generally be to give appropriate weight to the conclusions of the person who has, because of or as a result of access to special sources of information been given responsibility for a topic: see [39] above referring to Lord Bingham in Huang’s case. What the court has to do in assessing the proportionality of a disclosure of disputed material is to consider the state of the available material. As its task is not to determine the truth or falsity of the allegations, but whether the allegations or some of them are reliable enough to justify disclosure, in the vast majority of cases there will be no need to make findings of fact when assessing their reliability.[62]In many situations, including the present one, the primary decision-maker’s conclusion will have been made on the basis of the available documentary material and without seeing the witnesses and thus gaining an impression from that as to the reliability of their evidence. It is in part because (subject to the post-decision material point considered at [67] ff. below) the court will be considering the same material as was before the primary decision-maker that the court may, subject to considerations of the particular expertise of the primary decision-maker, be in as good a position to form a view on proportionality. Having said that, in the present case parts of the judgment appear to be, or to be very close to being, fact finding of a sort which is inappropriate in the context of a reviewing jurisdiction. I refer to what the judge said (at [84]) about "overt hostility" to A and racist remarks about her, and possibly the description (at [83]) of Mrs Broom's investigation as “independent and thorough”, as well as the statement (at [84]) that the allegations were "more likely than not" exaggerated or false.[63]Despite these possible defects, and not without some difficulty, I have concluded that on this matter Mr Wise QC was correct in maintaining that the judge did not in fact and did not purport to make any findings of fact in her judgment in the sense of findings that a particular event happened or did not happen. She was evaluating the reliability of the allegations and not their truth or falsity. She followed the guidance of Lord Neuberger in L’s case in the passage set out at [10] above, which gives importance to reliability as a factor in assessing the proportionality of disclosure. Reliability, although described as “credibility”, is also what the statutory disclosure guidance states is the starting point: see the extract from paragraph 18 set out at [12] above.[64]As to the judge’s reference to the “balance of probabilities”, in the context of an evaluative exercise, it might have been better not to use that phrase. But it is as consistent with a high degree of scrutiny of the reliability of allegations as a finding of fact. Paragraph 18 of the statutory disclosure guidance refers to the need to take steps to ascertain whether allegations are “more likely than not” to be true. It is thus concerned with “likelihood”. Likelihood is an assessment of possibility or probability which is closely related to the legal standard reflected in the term “balance of probabilities”. The latter term, after all, concerns whether the question under consideration is, or is not, more likely (or probable) to be true than not.[65]Mr Basu was also entitled to criticise the judge’s reference to Mrs Broom’s report as “independent” because, unlike the other investigations to which she refers, her investigation was an internal one on behalf of A’s employer. But any suggestion that Mrs Broom had some kind of disqualifying interest or improper motive, such as to protect the employer, is speculative and does not accord with the fact that A was dismissed by her employer until the outcome of Mrs Broom’s investigation. This point does not, in my judgment, take the appellant anywhere. Similarly, although Mrs Broom did not interview three of those interviewed by the police, she took into account some evidence not referred to by the police. I accept that there is a difference in the way Mrs Broom’s report and DC Preece’s investigation are scrutinised in the judgment. But the suggestion that the judge went beyond what was permitted and that “no reasonable judge assessing Mrs Broom’s report could have come to the conclusions that the judge did without adverting to other evidence, and that to do so was perverse” are ones which I consider to be entirely unfounded. What this part of Mr Basu’s submissions sought to do was to subject the judge’s assessment of proportionality to the same scrutiny he had suggested that the judge was not entitled to undertake in relation to the decision made on behalf of the Chief Constable. (iv). Did the judge err in regarding reliability as a threshold question?[66]Mr Basu criticised the judge for treating (in judgment, [95]) the question of the reliability of the allegations as a threshold question in determining disclosure – a “tipping” point. There was no real dispute between the parties as to the correct approach. This is, as Mr Basu submitted, to put reliability into the balance, along with the other relevant factors such as gravity, relevance, the period that has passed since the alleged events, the impact on the individual, and whether the individual has had a chance to rebut the information. The judge did not, however, make reliability a threshold factor rather than a balancing factor. All she stated at [95] was that, in this case, the balance tipped in favour of non-disclosure because of the unreliability of the allegations. She had directed herself as to the consequences of the Supreme Court’s judgment in L and her self-direction at [46], summarised at [25] above, contains no error. She set out the statement of Lord Neuberger which makes it clear that many factors may come into play in the balancing process.

(v) Post-decision/post-disclosure material

[67]The fifth ground of appeal is that the judge erred in relying on material which was not, and could not, have been available to the decision-maker at the time the decision to disclose was made or at the time of the disclosure. In the light of the cases to which she referred (see [3] above), the judge considered that the court has to consider such material in order to be able effectively to determine whether the human rights of a person have been infringed. She relied on what was stated by Lord Bingham in Huang’s case and by Lord Neuberger MR in Manchester City Council v Pinnock [2010] UKSC 45 for this conclusion.[68]In Huang’s case Lord Bingham stated (at [15]) that “the first task of the appellate immigration authority is to establish the relevant facts. These may well have changed since the original decision was made”. In Pinnock’s case, Lord Neuberger stated (at [74]) that “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”.[69]The ordinary meaning of these statements, in particular that of Lord Neuberger, provides strong support to the approach taken by the judge in this case and by Stuart-Smith J in R (L) v Chief Constable of Cumbria Constabulary [2013] EWHC 869 (Admin). I have, however, again not without difficulty, concluded that, on a close analysis, they do not require the conclusion that, in the circumstances of the present case, the court is required to or should consider post-decision/post-disclosure material. I also consider that, although it is for the court itself to assess proportionality, there are strong reasons for it in such a case not generally to consider material which could not have been available to the primary decision-maker at the time the decision that is challenged was made or at the time of the disclosure.[70]I start with Huang’s case. It is important to note that the decision-making body in that case was the Appellate Immigration Authority (“the AIA”) established by the Immigration and Asylum Act 1999 (“the 1999 Act”). Paragraph 21(3) of Schedule 4 to the 1999 Act gave the AIA jurisdiction to review any determination of a question of fact by the Secretary of State. But (see Lord Bingham at [11]) its function was “not a secondary, reviewing, function dependent on establishing that the primary decision-maker misdirected himself or acted irrationally or was guilty of procedural impropriety”. He returned to this at [13], a paragraph to which I refer at [37] above. He there contrasted the position of a judicial review court where Convention rights are at stake and that of the AIA because, when deciding an appeal, the authority “is not reviewing the decision of another decision-maker”, “it is deciding whether or not it is unlawful to refuse leave to enter or remain, and it is doing so on the basis of up-to-date facts”. Although the judge set out almost all of [13], she did not include the last two sentences or the key passages in them, in which Lord Bingham made this contrast between the functions of the AIA making a primary decision of its own and a judicial review court considering the decision of a person or body who is the primary decision-maker on the more intensive basis required where Convention rights are in play.[71]The other decision relied on for the proposition that the court has to consider the facts as they are at the time of the adjudication by the court rather than those in existence at the time of the original decision is Manchester City Council v Pinnock [2010] UKSC 45. The issue was the assessment by the County Court of the proportionality of making an order for possession of a local authority tenant’s home. Section 82A of the Housing Act 1985 empowered a local housing authority to apply for a “demotion order” against a secure tenant. Such an order had been made in Mr Pinnock’s case as a result of anti-social incidents by members of his family at or near the property. The housing authority subsequently applied for possession on the ground that Mr Pinnock had breached the terms of his demoted tenancy because of further incidents of anti-social behaviour involving two of his sons in the vicinity of the property. After a two-day hearing in the County Court, the judge made an order for possession of the property. His decision to make the Order was upheld by the Supreme Court in a judgment given by Lord Neuberger MR. But the Supreme Court rejected the reasoning of the judge and the Court of Appeal that, under the relevant legislation, the County Court’s jurisdiction did not extend to resolving factual disputes or considering issues of proportionality under ECHR Article 8.[72]Lord Neuberger stated (at [45]) that any person at the risk of being dispossessed of his home at the suit of local authority should, in principle, have the right to raise the question of the proportionality of that measure, and to have it determined by an independent tribunal in the light of Article 8. In this case the judge particularly relied on what the court stated at [74]. After reiterating (at [45] and [73]) that, in assessing proportionality, the court must be able to make its own assessment of the facts in an appropriate case and that the traditional review powers of the court have to be expanded to permit this, the Supreme Court stated:
“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.”
[73]It is important to bear in mind the nature of the process in that case. It was the County Court which had to make the possession order. What was involved was not a decision by the relevant local housing authority which was subject to judicial review. It was necessary for the authority to make a decision to apply for an order, and for it to make an application to the court, which the court then had to decide in accordance with the statute. The reason the judge in the County Court held that it was not open to him to consider the proportionality was that section 143D(2) of the Housing Act 1996 provides that “the court must make an order for possession unless it thinks that the procedure under section 143E and 143F has not been followed”. Section 143E makes provision for notice to be served on a demoted tenant of the fact that the local authority has decided to seek possession together with reasons, and informing the tenant of the right under section 143F to request a review of the decision, which the local authority will be obliged to carry out in accordance with the relevant Regulations.[74]The process therefore involved more than one stage. The first was the decision of the local authority to seek a possession order against a demoted tenant. The second was the application to the court and the court proceedings themselves. The Supreme Court stated (at [45]) that “where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if Article 8 has been complied with”. Each of the two stages involves consideration of Article 8.[75]The Supreme Court recognised (at [71] – [72]) that housing authorities and any panel reviewing the decision of a housing authority to bring possession proceedings against a demoted tenant are under a duty to consider the proportionality of making a possession order. It stated (see [72]) that the County Court also has to satisfy itself that the local authority and the review panel have acted reasonably and investigated the facts fairly when deciding to bring possession proceedings. Because of that, it concluded that it followed that any decision by the local authority “to continue possession proceedings” is similarly susceptible to judicial review. It also (at [116]) stated that the local authority reviewing panel was able to take into account all the available information when it assessed the justification for and the proportionality of the claim for possession, and that it seemed “obvious that before the panel the tenant could raise events that happened after the notice, and it is hard to see why the same should not apply to the landlord”. Similarly, if the tenant raised Article 8 rights as a defence to the possession proceedings, the Supreme Court stated that the court “must consider all relevant issues” which “must include a matter that arose after the date of the notice”.[76]The context was thus one where the court was given a particular statutory function in the process, and it was the County Court that was being asked to make an order for possession on a particular day. In that context, it is, as Mr Basu submitted, unsurprising that the County Court had to take into account all the material before it at the time of its adjudication.[77]It is also necessary to refer to other decisions which deal with the question of time. For example, in the well-known case of Chahal v UK (1997) 23 EHRR 413, the Strasbourg court stated (at [97]) that the material date for the assessment of risk of treatment contrary to Article 3 is the date of the court’s consideration of the case. Accordingly, it was necessary to take account of evidence which came to light after the Commission’s review. See also the discussion in R v Secretary of State for the Home Department, ex parte Turgut [2001] 1 All ER 719 at 722 and 735-736, where, even before the Human Rights Act came into effect, Simon Brown LJ stated that the date of the court’s consideration of the matter was the material date for the assessment. There are other decisions in which the court has taken a flexible approach to the consideration of post-decision material, fresh evidence, and a later decision by the Secretary of State: see R v Secretary of State for the Home Department, ex parte Launder [1997] 1 WLR 839 at 860 – 861; E v Secretary of State for the Home Department [2004] EWCA Civ 49, [2004] QB 1044 at [43]; and R (Limbuela) v Secretary of State for the Home Department [2004] EWCA Civ 540, [2004] QB 1440 at [113], affirmed without reference to this point at [2005] UKHL 66, [2006] 1 AC 396.[78]These cases, however, are cases in which the decision-maker was a Minister with a continuing duty in relation to the matter. In such cases considerations of convenience may make it sensible for the court to look at more recent decisions about a person by the Secretary of State, or to look at new evidence relating to facts which were “established” at the time of the original decision: see E’s case at [77]. But, even in that context, it was stated, albeit in the context of the limits of the statutory appeal process, that the proper way of proceeding was to make a “fresh claim” application to the Secretary of State, which would be subject to further review by the court: see E’s case at [85]. It is also of relevance that, in Chahal’s case, it was important to the Strasbourg court that the domestic courts were at that time precluded from reviewing the factual basis underlying the national security considerations invoked by the Home Secretary to justify Mr Chahal’s expulsion: see D v UK (1997) 24 EHRR 423 at [72].[79]I turn from authority to principle. I first consider the position without regard to section 6 of the Human Rights Act, and then (at [85]) turn to that. I have referred to the common ground between the parties, which shows (see [36] above) that three matters are clear. The first is that it is for the court itself to determine whether there has been a breach of a right under the ECHR. This necessarily includes determining whether an infringement of a Convention right has been justified. Secondly, to do this the court itself must conduct an intense scrutiny of the decision made by the relevant public authority which is the primary decision-maker in the light of the material available to that authority when the decision is made. Thirdly, the need for an intense scrutiny including, in some cases, live evidence and cross-examination, does not change the process to a “merits review” in which the courts will always substitute their views for those of the relevant public authority.[80]The last of these matters, in my judgment, poses a serious difficulty of principle for the contention that the court must also scrutinise material which could not have been available to the decision-maker at the time of the decision. This because, if the court is required to scrutinise such material, it is difficult to see how the process can characterised as one of the review of a decision made by the public authority which has been given primary responsibility for a subject-matter, often because of its special knowledge and expertise. Considering post-decision material would, in truth, turn the process into one of a determination on all the material available to the court at the date of the adjudication. It would be very similar to what Lord Neuberger in Re B (A Child) (FC) [2013] UKSC 33 at [89], in the context of the role of an appellate court, described as “a sort of half-way house role between review and reconsideration”, and which he deprecated: see [89] below.[81]The effect of the court itself considering material which post-dates the decision and which has not been considered by the body which has been given responsibility for the subject-matter by Parliament and not remitting the matter is to sideline that body and to deprive the court of the special sources of knowledge, advice and expertise available to it. It is clear (see [39] above) that, where in a particular case, the responsible body has not adequately addressed its mind to the values and interests which are relevant to striking the balance required under the ECHR, its views will carry little or no weight with the court. That was the position in this case. It does not, however, follow that the reviewing court should lose the benefit of the expertise of the responsible body in considering any post-decision material in the particular case in the light of the court’s guidance about the earlier decision. In a case such as the present one, the court’s assessment of the post-decision/post-disclosure NMC report was conducted in the absence of an assessment of proportionality by the Chief Constable’s delegate, taking account of that report. After all, once that report was published, it was open to A to seek a further ECRC which took account of it. The Chief Constable’s delegate would then have been able to decide whether a report, which the judge considered to be more detailed and thorough than the other material she examined, in fact made a difference to the assessment. While recognising that the terms of Ms Bottomley’s statement (see [29]) suggest that, in this particular case, the result may have been the same, in principle the court should be wary of proceeding in a way which cuts out a stage in the legislative and regulatory administrative process. This is particularly so in contexts, such as the present one, in which the decision-maker is not under a continuing duty in relation to the disclosure but responds to applications for up-to-date ECRCs at different times,[82]The impact of the reviewing court scrutinising post-decision material is likely to be particularly significant in contexts in which there will frequently be a change of circumstances or in the evidence available between the time of the original decision and the time the matter comes before the reviewing court. Take, for example, immigration, which very often involves ECHR rights. In recent years, there have been many cases in which an applicant for refugee status or for leave to remain in this country on some other basis whose application has been refused seeks to make a “fresh claim” on the basis of new material. There is now a rich jurisprudence on the meaning of “fresh claim” and the approach of the court when reviewing a decision of the Secretary of State that the new material has not generated a fresh claim: see e.g. MN (Tanzania) v Secretary of State for the Home Department [2011] EWCA Civ 193. In some cases where the Secretary of State’s decision is challenged, by the time the matter comes before the Administrative Court, the claimant has put additional evidence in support of his or her case before the Secretary of State and the court. The Secretary of State will not have considered that evidence, but the court may be invited to do so to show the unlawfulness of the decision that the application was not a “fresh claim”. In some cases, the Secretary of State does not object to this. Indeed, the Secretary of State may also seek to deploy new material to justify the original decision or a later decision made in the light of the further evidence or further consideration to show that the claim no longer raises a live issue: see, for example, R (Osman Omar) v Secretary of State for the Home Department [2012] EWHC 3448 (Admin) at [36]ff. Such later decisions are also often challenged by those the Secretary of State wishes to remove from the United Kingdom.[83]The cases I have cited at [77] show that the court will adopt a flexible approach. Some flexibility will enable it to do justice. This court has also stated (Turgut’s case at 736) that, at the appellate stage, it is not usually appropriate for the Secretary of State to substitute a new decision for the old and to litigate the legality of the new decision before the court. But, if even a first instance court becomes too entangled in post-decision material and the legality of later decisions, in the immigration context there is a risk that it will be faced with a stream of evidence and counter-evidence: see Turgut’s case at 735d – e. Ouseley J stated in R (Rathakrishnan) v Secretary of State for the Home Department [2011] EWHC 1406 (Admin) at [10] that these cases may come before the court “at a point where the hearing is no more than an interruption in the process of the exchange of correspondence between the Secretary of State and the claimant” and “this makes for a wholly unsatisfactory process of litigation.” Moreover, in a sense, the court can be said to step outside its primary role. It will not only be adjudicating on the dispute between the parties as to the legality of the original decision made. It will become part of a rolling administrative decision-making process, in which a decision by the Secretary of State is followed by challenge, which is followed by new material which in turn is followed by a further decision, with the possible interposition of the court at any or all of these stages. Such “rolling judicial review” appears unprincipled. It is also liable to lead to confusion and to sideline the administrative process laid down by the legislature.[84]For these reasons, the appropriate course in many cases is not to review the Secretary of State’s decision on the basis of new material which the Secretary of State has not considered and made an assessment of its impact on a claimant’s position. In general, the matter should either be remitted, or the claimant should make a further application to the primary decision-maker deploying the new material and inviting the primary decision-maker to make a new decision. That would enable the court, if the matter comes before it again, to have the benefit of the views of the person, tribunal or regulatory entity to which Parliament has given primary responsibility for the decision.[85]The view that the role of the court requires it to consider post-decision material is considered (see Huang’s case at [8] per Lord Bingham, and the judgment below at [38] and [42]) to flow from the court’s duty under section 6 of the Human Rights Act 1998 not to act incompatibly with Convention rights and to determine whether the human rights of an individual are in fact infringed. If this is so, the position could indeed be that in every case involving a Convention right there would have to be a paper trial by the court of all disputed issues on the material available to it at the date of the adjudication. This would involve a more dramatic change in the nature of public law adjudication in such cases than has generally been recognised.[86]During the hearing I asked why, if the duty under section 6 of the Human Rights Act requires the court at first instance to consider post-decision material the position is not the same in this Court because it too is a public authority subject to a duty not to act in a way which is incompatible with a Convention right. Mr Wise’s response was that this was held not to be so by a majority of the Supreme Court in Re B(A Child) (FC) [2013] UKSC 33. Re B, like Pinnock’s case, concerned a situation in which the first instance court was given the primary decision-making function on the application of a local authority or a designated person. It concerned a care order made by a Deputy Judge of the Family Division, and the assessment of the proportionality of making the order. Lord Neuberger, Lord Clarke, and Lord Wilson held that an appellate court is not under a positive obligation in every appeal to assess the question of proportionality for itself by deciding de novo whether the requirements of, in that case Article 8, were satisfied: see [35] – [36], [83], [85], [136]. Lord Kerr and Baroness Hale dissented on this point: see [119], [121] and [205].[87]The majority judgments stated that the correct approach for an appellate court is to treat the exercise as an appellate exercise and not as a fresh determination of necessity or proportionality. Their reasoning was based on the requirement for a fair hearing before an independent tribunal under ECHR Article 6. They considered that, because there is no obligation under Article 6 to provide a right of appeal at all, it is open to domestic law to fashion the scope of any right given. In England and Wales CPR Part 52 limits this to a review of the decision of the lower court: see Lord Wilson at [36], Lord Neuberger at [83] and [85], and Lord Clarke at [136]. It was recognised (see Lord Neuberger at [88]) that if, after such a review, the appellate court considered that the judge had made a significant error of principle the appellate court is able to reconsider the issue for itself “if it can properly do so” because “remitting the issue results in expense and delay, and is often pointless”.[88]Lord Kerr stated that it is impermissible for an appellate court to determine whether a trial judge’s decision is proportionate “by an approach which is geared solely to testing the adequacy of the trial judge’s assessment of the proportionality issue” (at [119]) because it removes the appellate court from the area of its responsibility under section 6 to ensure that a Convention right is not infringed. He also stated (at [123]) that, although the Strasbourg jurisprudence does not require that there be a system of appeals in every case, “[w]hat ECHR requires is that, where an appeal is available, it must be conducted in a way which is ‘Convention-compliant’”, and (see [125]) “this must mean that the appeal is conducted in a way that will mean that the Convention right is vindicated in a way that is practical and effective”. Baroness Hale gave a judgment to the same effect: see [204] – [205], and [224].[89]It can be said that the majority approach reflects a pragmatic decision as to what is practicable and of the consequences of the alternative point of view rather than a necessary construction of section 6. Lord Neuberger stated (at [89]) that:
“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.”
[90]The law as stated thus means that, in the present case, unless this court concludes that the judge erred in principle in her approach to the assessment of proportionality, it is not required to reconsider the issue for itself. The decision in Re B is, however, also instructive in determining whether a reviewing first instance court should consider post-decision material. This is because requiring it, as the Article 6 compliant court or tribunal which considers the matter, to consider post-decision material gives it the sort of “half-way house role between review and reconsideration” which Lord Neuberger deprecated.[91]For these reasons I consider that, in a case such as this, where the primary decision-maker is not under a continuing duty in relation to the matter in the way that the Home Secretary is in the cases to which I referred at [77] – [78], the reviewing court should not consider post-decision material when conducting its assessment of whether a prima facie infringement of an ECHR right has been justified as proportionate. In the context of ECRCs issued pursuant to the 1997 Act, the court was informed that, while the trigger for an ECRC is usually an application for a new job, many bodies, in particular NHS Trusts, require an annual ECRC. On the assumption that, on 12 October 2012, when the disclosure that is challenged was made, the decision to disclose the material was proportionate notwithstanding the effect on A, after the 12 December 2012 decision by the NMC, it would, as I stated at [81], have been appropriate for A to make a further application for an ECRC. That, in my judgment, is what should generally happen. I recognise that exceptional circumstances may justify a different approach in a particular fact situation, but the flexibility of the judicial review procedure as seen in the cases to which I have referred (at [77] above) would permit the court to proceed appropriately in such circumstances.[92]It follows that the judge fell into error in her assessment of proportionality because of the reliance she placed on the 12 December 2012 decision by the NMC when considering the proportionality of the decision taken on behalf of the Chief Constable on 12 October 2012. (vi). The role of this court[93]The question is whether, as a result of that error, this court should remit the issue to the Administrative Court or whether it should itself consider whether the disclosure made on 12 October was a proportionate interference with A’s Article 8 rights. I consider that, in the circumstances of this case, this court can, in Lord Neuberger’s words in Re B (see [87] above) “properly do so”. The court has the material that was before the judge and it was not suggested that any particular circumstances make this inappropriate.[94]I have summarised the legal framework at [8] – [14]. The matters which have to be balanced are the need to protect the vulnerable group from the risk of harm and the right of the individual who is to be the subject of an ECRC to respect for his or her private life. Since the Supreme Court in L’s case, although there is undoubtedly a pressing social need to protect the interests of the vulnerable group, that group’s interests are not given priority. Because disclosure is likely to affect the private life of the affected individual in virtually every case, and make that individual unemployable in his or her chosen profession, there is also a pressing need that the information should be disclosed where to do so is justified, i.e. where it is necessary to do so to protect the vulnerable group from the risks to them.[95]In this case, the information was clearly relevant to the application. The central issue was its reliability. The fact that the CPS decided not to proceed in the Crown Court and that A was acquitted of the criminal charges and that the ISA decided not to bar her are, of course, relevant factors, but (see L’s case per Lord Scott at [51] and per Lord Neuberger at [77]) they are in no way conclusive. This is because there may be good reasons for a prosecutor to conclude that no evidence should be offered against a person against whom allegations that are reliable have been made. This may, in particular, be the case where, although the evidential stage of the test in the Code for Crown Prosecutors is satisfied, it has been decided not to proceed because public interest factors tending against a prosecution outweigh those tending in favour.[96]In the present case it appears that the reason for not proceeding with the prosecution was that the evidential stage of the test was not satisfied. That requires prosecutors to be satisfied that there is sufficient evidence to provide a realistic prospect of conviction, taking into account the defence case and any other information available to the prosecution. This requirement is met where the prosecutor considers that the jury or judge, properly directed and acting in accordance with the law, is more likely than not to convict the person; that is “more likely than not” to satisfy the stringent “beyond reasonable doubt” standard of proof in criminal cases. There will be many situations in which, although it is decided not to prosecute a person, the allegations are sufficiently reliable or sufficiently grave to justify including them in an ECRC. Nevertheless, if the evidential stage of the prosecutors’ test is not satisfied because the evidence of the principal prosecution witnesses has been undermined, a decision not to proceed is a significant factor in considering whether to make a disclosure in an ECRC. Similarly, notwithstanding the different role of the ISA, now part of the Disclosure and Barring Service, the fact that it, the body which has primary responsibility to protect vulnerable people from unsuitable professionals, has decided not to take any action at all is also relevant to the proportionality of the disclosure that was made. In this case the ISA’s decision letter stated that it had “carefully considered all the information available to us”.[97]The terms of the disclosure do not refer to Mrs Broom’s investigation or the reasons Mrs Broom had recommended that A be fully reinstated because she had failed to discover any supporting evidence for any of the allegations. The decision to prosecute was made prior to the outcome of her investigation and the court does not, therefore, have a professional police view of the impact of that investigation on the consideration of whether to prefer charges which it would have had if that consideration had taken place after that investigation and in the light of its outcome. It may be true, as Mr Basu contended, that the police are more skilled in interviewing suspects and witnesses than Mrs Broom. He was also entitled to place some reliance on the fact that the statements taken by the police contain the usual declaration that the statement was made knowing that, if it was tendered in evidence, the maker would be liable to prosecution if he or she wilfully stated in it anything which was known to be false or which the maker did not believe to be true. But because of the timing, those statements did not engage with the specific circumstances referred to by the judge (at [58]) which tended to undermine the reliability of the allegations. That is, the evidence of the resentment of the statement-makers against A, and of possible racism.[98]Mr Basu emphasised that neither Mrs Broom’s report nor her minutes of her interview with MB, to whom Mrs Broom attributed the racist comment, mentioned any racist comments. He is also entitled to place weight on the fact that Mrs Broom did not interview three of those interviewed by the police at all so that her conclusion that, apart from MB and SL, there was no other evidence to support the allegations has to be judged in the light of that. But Mrs Broom did interview JT, the bank nurse, whose account contradicted those of SL and MB, and she did consider the records in the home. She was a person employed by those who ran the home with, as the judge observed, “expertise in care home management”. It is also of some relevance in this context that the only patient who was the subject of the allegations who was able to answer inquiries by the police denied anyone had hit her and then said she wouldn’t tell the police if anyone did hit her.[99]In all these circumstances, I have concluded that there are serious questions about the reliability of the allegations. If one adds to the picture A’s clear nursing record and previous good character, I am driven to the conclusion that, in this case, in the light of all the material available in October 2012, the decision to disclose in the terms of the ECRC was disproportionate. Accordingly, although in my judgment the judge’s approach erred in considering the 12 December 2012 decision of the NMC, and possibly also erred in making findings of fact about the reliability of the allegations by resolving conflicts in the evidence without having heard oral evidence, I would not set aside paragraph 3 of her order. (vii). Postscript[100]I reached my conclusion taking no account of the NMC’s decision of 12 December 2012. My conclusion on post-decision material made it unnecessary to consider that decision, but I make two observations about it. The first concerns the NMC’s decision itself. It concluded that A had “no case to answer”. That is a strong statement. It is also consistent with the earlier decisions of the CPS and ISA. Had A applied for a new ECRC after the NMC’s decision became available, it would have been necessary for the Chief Constable carefully to assess its impact on the terms of the disclosure that had been made in October. It is noteworthy that the statutory regulator which had access to the crime report, three of the witness statements and A’s police interview, and possibly other evidence, came to the conclusion that it did. The NMC’s decision made it significantly more difficult to justify a decision to make a disclosure in the terms of the disclosure that was made before the NMC’s decision became available.[101]My second observation concerns process. I have indicated that it is desirable for the court process not inappropriately to truncate the statutory and regulatory process by sidelining the body given particular responsibility by the legislation and the regulatory framework, here the Chief Constable. But it is also desirable that a Chief Constable who is considering the terms of an ECRC does not sideline other parts of the regulatory framework. When considering its terms, the relevant Chief Constable should, where possible, co-ordinate timing with the conclusions of the professional’s regulatory body. If that is not practicable, as it often may not be, and the ECRC has to be issued before the regulatory body has made a decision, the terms of the disclosure that has been made should be reviewed after its decision becomes available. In a case in which the regulator’s decision is in favour of the individual concerned, that individual is likely to make a further application, but, if it is an adverse decision, he or she is unlikely to do so. In those circumstances it is important for the relevant Chief Constable to review the matter, lest a previous disclosure that is too favourable to the individual is left unchanged. Lady Justice Gloster[102]I agree. Lord Justice Pitchford[103]I also agree.

Cited in 22 later judgments

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