29.54R (L) v Metropolitan Police Commissioner [2009] UKSC 3, (2009) 12 CCLR 573
The police may disclose personal information to an employer about a person who proposes to work with children or vulnerable adults when it is proportionate to do so
Facts: L was a midday assistant at a school but when the school obtained an enhanced criminal record certificate (ECRC) it showed that earlier L’s 13-year-old son had been placed on the at-risk register under the neglect category and that there were allegations that L had failed to exercise proper care and supervision and refused to co-operate with social services. Shortly after that, L lost her job. She sought a judicial review of the Commissioner’s decision to disclose her ECRC and his refusal to remove this information from it.
Judgment: the Supreme Court (Justices Hope, Saville, Scott, Brown and Neuberger) held that the provision of information in an ECRC could interfere with a person’s rights under Article 8 ECHR, but could be justified: the question was, whether the disclosure was proportionate in all the circumstances, weighing in particular the pressing social need for children and vulnerable adults to be protected against the risk of harm against an applicant’s right to respect for their private life. Neither consideration took precedence over the other, there were no presumptions and in cases of doubt the chief police officer should permit the applicant to make representations. In this particular case, the information about L was undoubtedly true and bore directly on whether she could safely be entrusted with supervising children, so its disclosure was proportionate.
Lord Hope said this:
42. So 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 … Increasing use of this procedure, and the effects of the release of sensitive information of this kind on the applicants’ opportunities for employment or engaging in unpaid work in the community and their ability to establish and develop relations with others, is a cause of very real public concern as the written intervention submitted by Liberty indicates.
44. In my opinion the effect of the approach that was taken to this issue in R (X) v Chief Constable of the West Midlands Police has been to tilt the balance against the applicant too far. It has 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 …
45. The correct approach, as in other cases where competing Convention rights are in issue, is that neither consideration has precedence over the other: Campbell v MGN Ltd [2004] 2 AC 457, para 12, per Lord Nicholls of Birkenhead … 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.
46. In cases of doubt, especially where it is unclear whether the position for which the applicant is applying really does require the disclosure of sensitive information, where there is room for doubt as to whether an allegation of a sensitive kind could be substantiated or where the information may indicate a state of affairs that is out of date or no longer true, chief constables should offer the applicant an opportunity of making representations before the information is released. In R (X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65, para 37 Lord Woolf CJ rejected Wall J’s suggestion that this should be done on the ground that this would impose too heavy an obligation on the chief constable. Here too I think, with respect, that he got the balance wrong. But it will not be necessary for this procedure to be undertaken in every case. It should only be resorted to where there is room for doubt as to whether there should be disclosure of information that is considered to be relevant. The risks in such cases of causing disproportionate harm to the applicant outweigh the inconvenience to the chief constable.
Lord Neuberger said this:
81. Having decided that information might be relevant under section 115(7)(a), the chief officer then has to decide under section 115(7)(b) whether it ought to be included, and, 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.