This was an application for judicial review, and a claim under the Human Rights Act 1998, in respect of the defendant’s decision to disclose allegations of neglect and ill-treatment of care home residents in an Enhanced Criminal Records Certificate dated 12th October 2012.
Background
In August 2012, the defendant received a request from the Criminal Records Bureau for an enhanced check to be made in respect of the Claimant concerning her proposed employment by Nightingales 24 7 as a registered nurse. The information related to the alleged mistreatment of several elderly and vulnerable adults resident in the care home in which [A] worked as a Registered General Nurse. The allegations were made by the residents and the health care workers in the charge of A, a registered nurse who qualified in Nigeria. She claimed that these allegations had been made maliciously because the health care assistants resented the way in which she managed them. She also claimed that some of the allegations were motivated by racism.
Kent Police referred the allegations to the Nursing and Midwifery Council, the Claimant’s professional regulatory body. But the Council’s investigatory body found that there was no case to answer against her and in criminal proceedings the claimant was acquitted after the CPS offered no evidence against her.
The arguments
In the light of this, the claimant sought judicial review, arguing that the decision to disclose the record of the allegations against her was an unlawful interference with her right to respect for her private life under Article 8(1) ECHR. The disclosure was disproportionate and so the defendant had failed to establish that the disclosure was justified under Article 8(2). The defendant submitted that the vulnerable individuals who endured ill treatment at her hands if those allegations proved to be true had Article 3 rights to be protected from degrading treatment, and that these took precedence over the claimant’s rights under Article 8:
Given that [A] is applying for the post of Registered Nurse involving regular contact with children/vulnerable adults and this information relates to alleged mistreatment of several elderly and vulnerable adults resident in a care home, I reasonably believe the information to be relevant as there may be a risk posed to the vulnerable group, and it ought to be included in the CRB disclosure certificate. [para 51]
It is established that Article 8 is engaged by a decision to disclose criminal records because it will affect the ability of the person concerned to obtain work in her chosen field and thereby to earn a living and to establish and maintain relationships with others (R (L) v Commissioner of Police of the Metropolis [2010] 1 AC 410 . In Lang J’s judgment, the defendant’s submission was misconceived:
The more grave the risk, the greater the likelihood that the interference with an Article 8(1) right will be justified. But the risk of a breach of Article 3 does not avoid the legal requirement to justify the interference under Article 8(2) in each case. To adopt that approach would be to emasculate the protection of Convention rights upheld by the Supreme Court in L.
Moreover, Article 3 imposes positive duty on the UK is to take measures to ensure that individuals within its jurisdiction are not subjected to Article 3 ill-treatment. In the UK, the regulatory bodies with supervisory responsibility for the professions and for care home establishments are the means by which the UK discharges its Convention obligations. Generally, it is not obliged to make disclosure under section 113B(4) of the Police Act 1997 in order to comply with its Article 3 duties under the Convention.
Having reviewed various judicial statements about the role of the courts in interpreting and applying human rights, considered by Lord Bingham in Huang v Secretary of State for the Home Department [2007] 1 AC 167 and R(SB) v Denbigh High School [2007] 1 AC 100, Lang J had this to say about the proportionality exercise:
It is agreed that, on a conventional judicial review approach, I should only review the Defendant’s decision and if I find it to be unlawful, leave it to the Defendant to re-make the decision. In contrast, under the HRA 1998, I am required to decide whether or not the Defendant was right or wrong in deciding that disclosure would not be in breach of the Claimant’s Article 8 rights because disclosure was proportionate. If I state in my judgment that disclosure was not proportionate, the Defendant is, in effect, required to re-make its decision in accordance with my assessment of proportionality [para 45]
In other words, unlike pure judicial review, one involving a human rights claim does involve the judge in a review of the facts, because she could not “properly conduct the proportionality exercise” herself without first assessing the reliability of the evidence.
The application was upheld and the defendant’s decision quashed.
Reasoning behind the judgment
Having set out her role in assessing the proportionality of the decision under challenge, the judge found that the defendant’s evaluation of the evidence behind the allegations was inadequate. The head of the Central Vetting Unit at Kent Police had reached her conclusions on credibility without making any reference to the claimant’s defence, the evidence of hostility on the part of the health care assistants towards the Claimant, nor the possibility that criticisms of the claimant might be motivated by racism by the elderly residents in her care. In so far as she (the vetting officer) had considered the proportionality of the disclosure,
she gave primacy to the risks to vulnerable adults ahead of the risk of unfairness to a falsely accused employee
As such, her approach reflected the view of the Court of Appeal in R (X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65 that priority must be given to the social need to protect the vulnerable, as against the right to respect for the private life of the applicant, even if the allegations against the applicant only might be true. However, this approach was rejected by the Supreme Court in (L) because it was incompatible with Convention rights. In (L) Lord Neuberger had outlined the factors to be taken into consideration when determining whether to make a disclosure like this:
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. [para 81]
Lang J therefore concluded that the defendant had applied the wrong legal tests and adopted a decision-making procedure which was flawed. It followed that the decision to disclose the allegations against the claimant in the ECRC dated 12th October 2012 was unlawful and should be quashed:
When assessing proportionality under Article 8(2), and balancing the need to protect vulnerable patients from the risk of ill-treatment, against the harm caused to the Claimant by disclosure, the balance tips in favour of non-disclosure when it is more likely than not that the allegations are either exaggerated or false. A fair balance must be struck between the interests of the community and the protection of the individual’s rights, and it is disproportionate for the Claimant’s professional life to be blighted in this manner when the allegations have been repeatedly found to be unreliable. [para 96]
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