R (on the application of L) v Comr of Police of the Metropolis
Reference:  UKSC 3;  3 WLR 1056
Court: Supreme Court
Judge: Lord Hope (Deputy President), Lord Saville, Lord Scott, Lord Brown and Lord Neuberger
Date of judgment: 29 Oct 2009
Summary: Judicial review – Enhanced criminal record certificate - Inclusion of information in certificate - Declaration of incompatibility - Police Act 1997, s.115(7) – Privacy – Article 8
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Instructing Solicitors: John Ford Solicitors for L; Metropolitan Police Directorate for the Commissioner; Treasury Solicitors for the Secretary of State for the Home Department (intervener); Liberty (intervener)
L was employed by an employment agency between February and December 2004. The agency provided staff to schools and, between the months of March and July 2004, L worked as a casual midday assistant, supervising children at a secondary school. In accordance with section 115 of the Police Act 1997 (as amended), the agency applied to the police, on commencement of L’s employment, for an enhanced criminal record certificate (hereafter “ECRC”). The ECRC recorded, under the heading ‘other relevant information’, that L’s son, X, had been put on the child protection register due to alleged neglect, and that, during this period, L had allegedly refused to co-operate with social services. L did not have criminal convictions, nor was information recorded on her in relation to either section 142 of the Education Act 2002 or on the Protection of Children Act 1999 list.
L’s employment was terminated. She sought to challenge the decision of the Commissioner of Police for the Metropolis (the Commissioner) to disclose the information contained in the ECRC and applied for judicial review together with a declaration that s.115(7) was incompatible with Article 8 of the European Convention on Human Rights. Alternatively, she asked that s.115(7) be read down so as to avoid incompatibility. Her application was dismissed by Munby J ( EWHC 482), and that dismissal was upheld by the Court of Appeal ( 1 WLR 681).
L appealed to the Supreme Court.
(1) Whether s.115(7) of the Police Act 1997, as interpreted in R (X) v Chief Constable of the West Midlands Police  EWCA Civ 1068,  1 WLR 65, was incompatible with the applicant’s right to respect for her private life under Article 8 of the European Convention on Human Rights, or otherwise needed to be read down to avoid incompatibility.
(2) Whether the decision of the Commissioner to disclose the information should be quashed.
Dismissing the appeal:
(1) It was undoubtedly the case that decisions which the Chief Police Officer was required to take by section 115(7) of the 1997 Act were likely to fall within Article 8 in every case, as the information which he would consider would have been stored in files kept by the police. However, it is possible for section 115(7) to be read and given effect in a way that was compatible with the applicant’s Article 8 right. For this to be true, however, the words “ought to be included” in section 115(7)(b) have to be given their full weight. The approach in R (X) v Chief Constable of the West Midlands Police was thus incorrect in so far as it encouraged the idea that priority must be given to the social need to protect the vulnerable as against the right to respect for private life of the applicant. Rather, the correct approach, in cases of competing Convention rights, is that neither consideration has precedence over the other: Campbell v MGN Ltd. In deciding whether to provide any ‘other relevant information’, careful consideration was required in all cases where the disruption to a person’s private life was judged to be as great, or more so, as the risk of non-disclosure to the vulnerable group. Moreover, in cases of doubt, especially where it was unclear whether the position for which the applicant was applying requires disclosure of sensitive information, where there was doubt that the sensitive information could be substantiated or where there was doubt whether the information was still true, the Chief Police Officer should offer the applicant an opportunity of making representations before the information was released.
(2) L’s request that the decision that was made in her case should be quashed was declined. The risk to children outweighed the prejudicial effects of disclosure.
Where competing Convention rights are engaged, neither interest has automatic precedence over the other, even in the context of the safety of children. In respect of details of convictions collected and stored in central records, express acknowledgment was given to Strasbourg jurisprudence which suggests that as time passes, the status of information the disclosure of which was once justified may change so that disclosure is no longer justified.