B, R (on the application of) v Derbyshire Constabulary [2011] EWHC 2362 (Admin)

“I have given her sparse details – B has been arrested and bailed for a public order offence.”

“I have informed him of the circumstances of the allegation and he will consider action re suspension etc.”

“There is no realistic prospect of a conviction of any offence and the suspect should be released without charge.”

“[1] I agree with the proposal to disclose. [2] By virtue of S113B of the Police Act 1997 the Chief Officer of every relevant police force is required to provide information which in the Chief Officers opinion might be relevant and ought to be included in an enhanced certificate. [3] The information under consideration is of concern given its violent nature toward children and alleged inappropriate use of a weapon and therefore might be relevant and material to the Registered Body in assessing the risk that the applicant would present to children and vulnerable adults in the proposed role of Medical Director. [4] When considering whether the information should be disclosed I have borne in mind the rationale of my colleague for disclosure and agree with that rationale. In particular, I note that the applicant has one conviction for an offence of driving with excess alcohol in 2008 which will appear automatically on the applicant’s enhanced certificate. I am mindful that that will provide only a limited insight into the applicant’s apparent use of alcohol. [5] When considering whether the information about the alleged affray and failure to comply with a firearms certificate should be disclosed I have considered how reliable the evidence is. In particular, I have noted that firearms officers who searched the applicant’s address and that of his parents’ found ammunition that was not in secure storage. It is therefore, my view that the evidence of this failure to comply with a firearms licence is reliable. I also note that whilst the view of the Crown Prosecution Service is that no further action should be taken, the seized weapons and ammunition are retained by the police pending a decision on whether it is appropriate to return them to the applicant. [6] With regards to the applicant’s firearms I also note the statement of SR and the alleged inappropriate use of firearms in August 2009, which whilst denied by the applicant is of concern but if true, forms part of a pattern of behaviour of concern. [7] I have considered the advice of the Crown Prosecution Service and the unsuccessful appeal of the officers against its decision not to pursue the case any further as there is no realistic prospect of a conviction. I note that they have referred to the difficulties with establishing the legal elements of affray and assault but am aware that for the purposes of disclosure of information in the case of an enhanced application, the information does not have to relate to a criminal offence. This was confirmed in the case of R (on the application of L) v Commissioner of Police of the Metropolis: R (on the application of G) v Chief Constable of Staffordshire (2006) where it was held that there was no distinction for the purpose of an enhanced check between conduct that, if proved would amount to a criminal offence and conduct, that even if proved would not amount to a criminal offence. The information referred to in s 113B was not confined to information relating to criminal offences or potentially criminal activity. Relevant information extended in principal to any information that in the chief officers opinion might be relevant for the purpose of a question asked by a prospective employer in the course of considering the applicant’s suitability for a position that involved regularly caring for or, training or supervising children [or vulnerable adults] [8] When applying this guidance and case law to the information in this case, it is my view that the information would be relevant to the Registered Body when assessing the applicant’s suitability for the proposed role of medical director. [9] I have borne in mind the inconsistencies in the evidence of the victims and the possible motive that the victims’ father may have had for making the allegation against the applicant … However, I also note that there is inconsistency in the evidence of the applicant’s brother who claimed that he had already caused damage to the relevant door. However, it is my view that, based on the balance of probabilities, it is more likely than not that the behaviour of the applicant was not appropriate on the day in question, resulting in the victims being so afraid that they locked themselves in separate bathrooms and that, based on the inconsistent evidence of the applicant’s brother, the damage was caused to the applicant’s bathroom door in the manner alleged by the victim. Whilst I accept that this may not be sufficient to amount to a criminal offence, it is behaviour that is relevant to the question of the applicant’s suitability for the proposed role and therefore, ought to be disclosed. [10] In reaching this decision I have also considered the inadequate storage of the applicant’s ammunition and the retention of his weapons by police. It cannot be assumed at this stage, that the weapons will not be returned to him or that that he would be unsuccessful in any appeal against any decision to revoke his firearms licence and therefore, it is my view that given the applicant’s apparent inappropriate behaviour when he has consumed alcohol, disclosure would be an appropriate step to take. [11] In reaching this decision I have also considered the detrimental impact that disclosure may have on the applicant and the requirement for there to be a pressing need for disclosure for it to be justified and proportionate. The competing interests of applicants and third parties to have a private life and the public interest in safeguarding children and vulnerable adults was recently considered by the Supreme Court in R (on the application of L) v Commissioner of Police of the Metropolis [2009] where, on appeal from the Applicant against a decision to disclose as Approved Information, information that the applicant’s child had been placed on the at risk register due to neglect, the Supreme Court stated that: The question whether the information was relevant would depend on the facts of the case. In forming the opinion on relevance, the officer also had to ask himself whether the information was reliable as well as the degree of connection between the information and the purpose described. An opinion also had to be formed as whether it should be included in the certificate. The guidance that was available to the police correctly recognised, that attention had to be given to the impact that disclosure might have on the private lives of the applicant and any third party who was referred to in the information. In every case, the officer had to consider whether there was likely to be an interference with the applicant’s private life, and if so, whether that interference could be justified. The approach in previous case law had been to tilt the balance against the applicant too far and it had encouraged the idea that priority had to be given to the social need to protect the vulnerable as against the right to respect for private life. Neither consideration has precedence over the other. Careful consideration was required in all cases where the disruption to the private life of anyone was judged to be as great, or more so, as the risk of non-disclosure to the vulnerable group. It should not be assumed that the presumption was for disclosure unless there was good reason for not doing so. [12] Accordingly, when considering the issue of proportionality in this case, as disclosure of this information would be likely to have a detrimental impact on the applicant and his employment careful consideration is required. Having considered the above factors, it is my view that non disclosure of the information would be of a higher risk to children and vulnerable adults than the detriment that would be caused to the applicant by disclosure and that therefore, disclosure would be a proportionate step to take. [13] Disclosure on this occasion, based on the information currently available would therefore be appropriate, proportionate and justified.”

“Although satisfied that there was not a need to seek your client’s representations prior to the CRB disclosure, I am conscious that your client has now engaged your services. Having had the opportunity to review your concerns and the file once more, ACC Cotterill is, notwithstanding the reasonableness of his original decision, nevertheless willing to provide your client with the opportunity to address him further on a more detailed disclosure that he would propose could be used should there be further need to consider an enhanced record certificate where the information may be relevant and ought to be disclosed.”

“Section 113 B of the Police Act 1997 requires the Chief Officer of every relevant Police Force to provide any information that might be relevant and ought to be included in the certificate. In accordance with this legislation the Chief Officer has considered the following information and has decided that it might be relevant for the purpose of this application and ought to be included in the certificate:- On the 4th February 2010 a 48 year old male attended a police station in Derby claiming that he had been stabbed in the chest with a Samurai sword by Dr B. The complainant stated that Dr B had treated him in the past in his capacity as his Psychiatric Counsellor and had become a personal friend. At the time of the report no visible injuries were witnessed by police officers and on being challenged about this the complainant then alleged that Dr B had attempted to stab his children. No Further Action was taken on this occasion due to no apparent offences being disclosed and the demeanour of the complainant who the officer described as being nervous and salivating. The same complainant made a second report to police on the 10th February 2010 alleging that on the 29th December 2009, one of his children [aged sixteen] had nearly been stabbed by Dr B. The circumstances leading to this were, that after socialising at the complainant’s home address (where it was alleged that Dr B had consumed a large quantity of alcohol and was drunk) he was driven home by the complainant accompanied by his two sons aged 16 and 14 years. The children were left alone with Dr B whilst the complainant returned to his home address to collect items belonging to Dr B. During this time it is reported that Dr B had been trying to ‘play’ fight with the children. The children alleged that they became frightened by Dr B’s behaviour and the older child locked himself in the upstairs bathroom, with his younger brother locking himself in the downstairs toilet. Dr B is then alleged to have put a Samurai sword through the upstairs bathroom door, close to the child’s head. Dr B was subsequently arrested. Following the arrest of Dr B, the premises were searched and a Samurai sword was found. Damage to the bathroom door was found which was consistent with a sharp object penetrating the timber work. When interviewed by police, Dr B gave a no comment interview in relation to an alleged offence of affray. Dr B later provided a prepared statement in which he stated that he had know the complainant since 2004 and had treated him for approximately one year in his capacity as a Consultant Forensic Psychiatrist. Subsequently to this he confirmed that he had continued to socialise with the complainant and his partner. In November 2009 Dr B loaned the complainant £7,000 due to his financial difficulties. With regard to the allegations of December 2009 Dr B states that the damage to the door was caused by his brother in October 2009. Dr B provided three photographs of the damaged door signed by persons claiming that they had witnessed the damage prior to the date of the alleged incident. In his prepared statement Dr B indicated that he believed he had been the victim of a blackmail/extortion attempt. During the investigation the female partner of the complainant provided a statement in which she disclosed that she had visited the home address of Dr B with her partner and two children in August 2009. Whilst at the address Dr B is alleged to have produced a number of firearms to show one of the children and it became apparent that one of the rifles was loaded with ammunition. The Crown Prosecution Service advised that there was no realistic prospect of conviction and that Dr B should be released without charge. Following the arrest of Dr B, three premises were searched including Dr B’s home address and that of his parents. A number of firearms and ammunition were found. All the weapons were seized by police and retained. Police enquiries have confirmed that all the weapons were legally owned by Dr B but that he may have been in breach of his licence to possess the firearms as they were not securely stored. The Firearms and Explosives Licensing Manager has subsequently received a request from Dr B requesting the cancellation of his firearms licence.”

“the issue is essentially one of proportionality. On the one hand there is a pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the applicant's right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place.”

“The correct approach, as in other cases where competing Convention rights are in issue, is that neither consideration has precedence over the other ... The [approach] should be restructured so that the precedence that is given to the risk that failure to disclose would cause to the vulnerable group is removed. It should indicate that careful consideration is required in all cases where the disruption to the private life of anyone is judged to be as great, or more so, as the risk of non-disclosure to the vulnerable group. The advice that, where careful consideration is required, the rationale for disclosure should make it very clear why the human rights infringement outweighs the risk posed to the vulnerable group also needs to be reworded. It should no longer be assumed that the presumption is for disclosure unless there is a good reason for not doing so.”

“in making that decision, there will often be a number of different, sometimes competing, factors to weigh up. Examples of factors which could often be relevant are the gravity of the material involved, the reliability of the information on which it is based, whether the applicant has had a chance to rebut the information, the relevance of the material to the particular job application, the period that has elapsed since the relevant events occurred, and the impact on the applicant of including the material in the ECRC, both in terms of her prospects of obtaining the post in question and more generally. In many cases, other factors may also come into play, and in other cases, it may be unnecessary or inappropriate to consider one or more of the factors I have mentioned. Thus, the material may be so obviously reliable, relevant and grave as to be disclosable however detrimental the consequential effect on the applicant.”

“(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

“it must be asked whether the prisoner is entitled to be informed of that part of the material before the Home Secretary which consists of the judges’ opinion and their reasons for it. It has frequently been stated that the right to make representations is of little value unless the maker has knowledge in advance of the considerations which, unless effectively challenged, will or may lead to an adverse decision. The opinion of the Privy Council in Kanda v Government of Malaya [1962] AC 322, 337 is often quoted to this effect. This proposition of common sense will in many instances require an explicit disclosure of the substance of the matters on which the decision-maker intends to proceed. Whether such a duty exists, how far it goes and how it should be performed depend so entirely on the circumstances of the individual case that I prefer not to reason from any general proposition on the subject.”

“I think it clear that the prisoner needs to know the substance of the judges’ advice, comprising not only the term of years which they recommended as the penal element, but also their reasons: for the prisoner cannot rationalise his objections to the penal element without knowing how it was rationalised by the judges themselves.”

“in cases of doubt” (Lord Hope, para [46]) or “in any borderline case” (Lord Brown, para [63]). Lord Neuberger (para [84]), while agreeing with Lord Hope and Lord Brown that the duty to contact the applicant would not arise in every case, said that “the imposition of such a duty is a necessary ingredient of the process if it is to be fair and proportionate.”

“In this case the allegations were of abuse said to have occurred more than 15 years earlier. At one stage the allegation had been withdrawn and then renewed some years later. They were denied by C. When those factors are taken into account, in conjunction with the nature of the employment which he was seeking, it does seem to me, looking at the matter overall, that fairness required that he should be given an opportunity to make representations. If one asks the question, rhetorically, “Was it obvious that nothing that he could have said could rationally or sensibly have influenced the mind of the Chief Constable?”, I am not persuaded that the answer is an obvious “yes”

“prior to the grant to C of an opportunity to comment, one cannot say that the only rational conclusion would be that disclosure should be given.”

“First, the information relates to an allegation of impropriety some 15 years before the certificate. Secondly, the accuracy of the information is challenged, and the challenge receives some support from the fact that the allegation was withdrawn, although it is right to say it was renewed. Thus, the allegation embodied in the information was denied, unlike in the L case. Thirdly, for the reasons given by the judge, the allegation was arguably not relevant … So the facts of this case are a long way from the facts of L.”

“I would also emphasise that giving an opportunity to the prospective employee to make representations does not necessarily mean arranging for any form of oral hearing. Representations can be made in a much simpler form than that.”

“Although no doubt in some cases the appropriate form of contact might be face-to-face contact, in this sort of case I would consider that it would be reasonable for the Chief Constable to send to the applicant a letter enclosing a draft of the proposed certificate and inviting his comments thereon. If a response to that was to be that the applicant sought a face-to-face contact with a police officer in relation to these matters, the merits of the request would have to be weighed. But I would not disagree that it was appropriate in a number of cases, including in principle this case, for the contact with the applicant to be by letter.”

“the local authority’s decision should in any event be quashed for procedural irregularity. The … entire process … took place behind H’s back. H and L were given no opportunity of making representations. They were simply presented with a fait accompli. The process by which they were condemned, unheard, was unfair. It fell far short of what was required both by the common law and by Article 8. These serious – indeed egregious – procedural shortcomings vitiate the entire process.”

“if the process is to be fair, if it is to meet the requirements of procedural fairness demanded both by the common law and by Article 8, the local authority must consult with H (and L) and give them a proper opportunity to make their objections to what is proposed, after the local authority has decided what disclosure to make, and to whom, and before it does so”

“… a decision such as this is to be read in a broad and common sense way, applying a fair and sensible view to what the decision maker has said … as Lord Hoffmann pointed out in Piglowska v Piglowski [1999] 1 WLR 1360, 1372, reasons should be read on the assumption that, unless she has demonstrated the contrary, the decision maker knew how she should perform her functions and which matters she should take into account.”

“When considering how such disputes are handled, it is also right to bear in mind the pre-action protocol for judicial review applications. There may be cases in which the Chief Constable, in good faith, does not think it necessary to afford an opportunity to make representations, but the prospective employee is aggrieved by the lack of opportunity given to him of doing so. In such circumstances one would expect the pre-action letter to set out the representations which the person would have wished to make, and, unless the Chief Constable considers that they do not merit any consideration at all, one would expect that the Chief Constable at that stage to give consideration to them. All this is part of the modern process for dealing with public law complaints in a way which is just and does not involve unnecessary expense. In other words, I would hope that courts are not going to be burdened with judicial review applications based on a failure of an opportunity to make representations, without the complainant first setting out the concerns and relevant considerations in correspondence and the Chief Constable considering the correspondence.”