R (Application of J) v Chief Constable of Devon and Cornwall  EWHC 2996 (Admin) Foskett J. The application concerned an Enhanced Criminal Records Certificate which the Police were proposing to issue in respect of a nurse seeking employment.
The leading case in this area is R (on the application of L) (FC) (Appellant) v Commissioner of Police of the Metropolis  1 AC 410,
a decision of the Supreme Court given in October 2009.
criminal record checks are carried out in various specified
circumstances, such as where people are applying to work with children
or vulnerable adults, for various gaming and lotteries licences, for
registration for child minding and day care or to act as foster parents
The check is enhanced in the sense that it will involve a
check with local police records as well as the centralised computer
records held by the Criminal Records Bureau. As well as information
about minor convictions and cautions, it will reveal allegations held on
local police records about the applicant's criminal or other behaviour
which have not been tested at trial or led to a conviction. If the
information satisfies the tests that [the relevant statutory provision]
lays down, it must be given to the Secretary of State and the Secretary
of State for his part must include it in the ECRC.
Clearly, the inclusion of allegations (not tested at trial) will be likely to damage the employment prospects of those requiring these certificates and it is possible to challenge a proposed certificate on Article 8 (Right to respect for private and family life) grounds.
J's case does not seem to strike any new law but is an example of the approach to be adopted in deciding whether particular material should be included in a certificate. Here, the Police had concluded that allegations made against J in 2007 and in 2011 should be included. In the court, Foskett J disagreed and declared that the disclosure breached J's Article 8 rights.
Foskett J said of the 2007 allegation - Applying the general approach to the issue of proportionality set out in L
by Lord Neuberger .... , looking at the material
about the incident as a whole, I do not consider that it possessed such
intrinsic gravity that demanded disclosure in an ECRC bearing in mind
the weight, on the other side of the scale, of the Claimant's Article 8
rights. See judgment paras. 54-58.
In 2011 there were 3 allegations on record. Foskett J said - "Again, applying the approach suggested by Lord
Neuberger, the balance, in my view, would be decidedly against
disclosure if the 2011 allegation (or indeed allegations) stood alone."
Judgment paras. 59-68.
However, did the two sets of allegations gain a weight tilting
the balance in favour of disclosure . At  Foskett J concluded that, whilst it was correct to review the 2007 matter in the light of the 2011
allegations, it was very difficult to see how the latter allegations,
which were unproved and unsubstantiated in the sense of establishing any
wrongdoing on the Claimant's part, could give credence to the
allegation made in 2007 which, if made initially, was never sustained or
pursued. Indeed it was effectively withdrawn."
Thus, J won the application. At  Foskett said - " ... I do not consider that the risks generated by the
possibility of occasional heavy-handedness (the suspicion of which has
been raised by the allegations) outweighs the Claimant's right to
respect for private life under Article 8."
However, Foskett J also noted  that J may "face the possibility that these
matters will be referred to in confidential references, but that is a
The issue is one of proportionality:
It will be clear enough from this judgment that the "balancing approach" (Disclosure v Article 8) is not only a difficult exercise but is likely to produce different decisions depending on the decision-maker, the factual matters taken into account and the weight given to those matters.
a nutshell, the issue is one of proportionality - [Lord Neuberger in L's case at para 82].
The L case also indicates that, normally, protection of Article 8 rights would require that the applicant be given a fair opportunity to answer any allegation involved in the material
concerned. Where the material has potential relevance to the
post for which the applicant has applied, or where the information is
historical or vague, it would often, indeed perhaps normally, be wrong
to include it in an ECRC without first giving the applicant an
opportunity to say why it should not be included.
The relevant statutory provision for the
purposes of the present case is section 113B of the Police Act 1997,
inserted by section 163(2) of the Serious Organised Crime and Police Act 2005. It does not differ in any material respect from its predecessor,
section 115 of the 1997 Act, to which the judgments in L related.
(The section has been amended again with effect from 10 September
Criminal Records Bureau - from 1st December merges with the Independent Safeguarding Authority to become the Disclosure and Barring Service.