Availability of remedy - Challenge to validity of public authority's decision

R (on the application of B) v Chief Constable of Derbyshire Constabulary: Queen's Bench Division, Administrative Court (Lord Justice Munby and Mr Justice Beatson): 16 September 2011

The claimant was a consultant psychiatrist working for a mental health trust. In January 2010, the claimant applied to receive an Enhanced Criminal Record Certificate (the certificate). In February 2010, a complete check was made of the defendant constabulary's systems to identify any records relating to the claimant. It was decided that an incident should be disclosed.

It had been alleged that in February 2010, having consumed alcohol, the claimant had stabbed a man in the chest and had threatened to kill one of the man's two sons. During that incident, the claimant was alleged to have driven a sword through a door behind which the son had been hiding. Police had subsequently found firearms at the claimant's home, which he had possessed legally but had not stored properly, in breach of his licence to possess them.

After investigation, it was decided that there was no realistic prospect of a conviction on any offence and the matters were not taken forward. The certificate was subsequently issued, and the incident was recorded on it. The claimant's solicitors subsequently sought to have various information disclosed by the defendant, including 'all documentation obtained by the police including the statements of the complainants and [the man allegedly stabbed] and any other potential witnesses interviewed by the police'.

In a letter of 21 June 2010, the defendant informed the claimant it had been decided that the requested information would not be disclosed to him. In that letter, the defendant offered to allow the claimant the opportunity to make representations before any further certificate was issued. The claimant declined that offer and issued proceedings for judicial review. The decision challenged was the decision to issue the proposed revised certificate and to refuse to disclose documents.

The claimant submitted that: (i) the decisions of the 21 June 2010 had been arrived at in breach of the procedural safeguards under articles 6 and 8 of the European Convention on Human Rights; (ii) the decisions had been incompatible with articles 6 and 8 of the Convention, and, linked to that, the decisions had been unreasonable and irrational; and (iii) the reasons given to justify the decision to issue the certificate had been inadequate. The application would be dismissed.

(1) With regard to article 6 of the Convention, the case law suggested that it would relate to the right to practice one's profession. It was clear that there was no causal connection in the circumstances. Further, had there been a breach of article 8, article 6 would not be engaged since article 8 itself would have provided for dealing with that breach (see [39]- [41] of the judgment). Article 6 did not apply in the instant case (see [41] of the judgment).

R (on the application of G) v Governors of X School [2011] All ER (D) 220 (Jun) applied.

(2) With regard to article 8 of the Convention, the case law suggested that when considering disclosure the chief officer had to address two questions: firstly, whether he believed that the information 'might be relevant' and secondly whether he was of the opinion that the information 'ought' to be included in the certificate.

In particular, article 8 had to be considered in the second question, regarding the impact disclosure might have on the private lives of the applicant and any third party referred to in the information supplied. With regard to the procedure of article 8, the question for the court was whether, having regard to the particular circumstances of the case and the serious nature of the decisions to be taken, those affected had been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests (see [43]-[46] of the judgment).

Article 8 of the Convention was clearly applicable in the instant case. What was required would always be fact-specific, as the jurisprudence showed. When issuing a certificate, it would be usual to allow the applicant an opportunity to make representations, usually by sending the applicant a draft of the certificate and seeking his comments.

Where facts were known and not in dispute, it might not be necessary to give the applicant a chance to comment (see [58], [59]-[61] of the judgment). In the circumstances, the defendant had erred in not allowing the claimant a chance to comment on the proposed certificate before it had been released, although disclosure to the extent sought by the claimant would be very unusual (see [60] of the judgment).

R (on the application of L) v Metropolitan Police Comr [2009] All ER (D) 296 (Oct) applied; R (on the application of L) v Metropolitan Police Comr [2010] 1 All ER 113 applied; R (on the application of H) v A City Council [2011] All ER (D) 143 (Apr) applied; R v Secretary of State for the Home Department, ex p Doody [1993] 3 All ER 92 considered.

(3) Although the claimant ought to have been sent a copy of the proposed certificate, from which he could make representations before it was issued, there was nothing in the case to take it so far out of the typical as to require disclosure of the documents, let alone the sort of all-encompassing disclosure that the claimant sought, or anything going beyond the claimant, as he was offered, the right to make written representations.

It was hard to see how a subsequent offer to make representations could cure an earlier failure to afford such an opportunity, for once the certificate was issued, the damage would surely have been done (see [70]-[72], [74]-[77] of the judgment).

R (on the application of Daly) v Secretary of State for the Home Department [2001] 3 All ER 433 applied.

(4) The defendant had been entitled to decide whether the incidents recorded ought to have been included on the certificate, especially given that a mental health trust such as the claimant's employer would have wanted a full picture of the claimant's activities given the nature of his work.

The individual incidents appeared to be part of a wider, disturbing, picture of the claimant's access to weapons as well as his use of alcohol. In those circumstances it was impossible to see the defendant's actions as irrational. Insofar as the claimant might have had any basis for complaint about the way in which the original certificate had been formulated, the revised form had met those concerns (see [84], [85], [88] of the judgment). In the circumstances, the disclosure had not been disproportionate (see [89], [90] of the judgment).

(5) In the circumstances, the reasons why the original certificate had been issued had been more than adequately explained, especially since it had been explained that non-disclosure of the information would have caused a higher risk to children and vulnerable persons than disclosure would have caused to the claimant. It was impossible to fault such conclusions (see [92] of the judgment). The reasons for the defendant's decision had been properly given (see [94] of the judgment).

Ramby de Mello (instructed by Turner Coulston) for the claimant. Anne Stud (instructed by the Force Solicitor) for the defendant.