29.59R (A) v Chief Constable of Kent [2013] EWCA Civ 1706, (2014) 135 BMLR 22
Court review of the proportionality of disclosure of sensitive personal information was intense but it was not a merits review and should ordinarily disregard new material
Facts: A complained that inclusion of allegations of ill-treatment and neglect of care home residents in her enhanced criminal record certificate had been disproportionate because the allegations were unreliable. The judge at first instance allowed A’s application for judicial review, taking into account new material not before the police at the time.
Judgment: the Court of Appeal (Pitchford, Beatson and Gloster LJJ) held that whilst a court determining whether ECHR rights had been violated had to determine that question for itself, which included determining whether an interference with qualified rights was proportionate, that did not amount to a full-scale merits review. Accordingly, to preserve the distinction between the function of the statutory decision-maker, and that of the court, the court ought not to take into account new material, until that had been considered by the statutory decision-maker. However, even disregarding the new material in this case, the ECRC had been unlawful. Beatson LJ said this:
36. It was common ground between the parties that, where the question before a court concerns whether a decision interferes with a right under the ECHR and, if so, whether it is proportionate and therefore justified, it is necessary for the court to conduct a high-intensity review of the decision. The court must make its own assessment of the factors considered by the decision-maker. The need to do this involves considering the appropriate weight to give them and thus the relative weight accorded to the interests and considerations by the decision-maker. The scope of review thus goes further than the traditional grounds of judicial review: see eg R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at [27].
37. There are also clear statements that it is the function of the court to determine whether or not a decision of a public authority is incompatible with ECHR rights. In R (SB) v Governors of Denbigh High School [2006] UKHL 15 at [30], Lord Bingham stated that ‘proportionality must be judged objectively by the court’. See also Lord Hoffmann at [68], Lord Neuberger MR in L’s case [2009] UKSC 3 at [74], and Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19. In the last of these decisions Baroness Hale stated (at [31]) that it is the court which must decide whether ECHR rights have been infringed. In Huang v Secretary of State for the Home Department [2007] UKHL 11 Lord Bingham also stated that the court must ‘make a value judgment, an evaluation’. But he made it quite clear (at [13]) that, despite the fact that cases involving rights under the ECHR involve ‘a more exacting standard of review’, ‘there is no shift to a merits review’ and it remains the case that the judge is not the primary decision-maker. In Axa General Insurance Ltd v HM Advocate [2011] UKSC 46, Lord Reed (at [131]) stated that, ‘although the courts must decide whether, in their judgment, the requirement of proportionality is satisfied, there is at the same time nothing in the Convention, or in the domestic legislation giving effect to Convention rights, which requires the courts to substitute their own views for those of other public authorities on all matters of policy, judgment and discretion’.
38. In SB’s case Lord Bingham stated (at [30]) that the evaluation of proportionality must be made by reference to the circumstances prevailing ‘at the relevant time’. In these proceedings, possibly the issue between the parties with the widest implications is what his Lordship meant by ‘the relevant time’. I deal with this at [67]–[92] below.
39. Much consideration has also been given to the weight it is ‘appropriate’ for the court to give to the judgment of the person who has been given primary responsibility for the decision. That person has, in the words of Lord Bingham in Huang’s case at [16], been given ‘responsibility for a subject-matter’ and ‘access to special sources of knowledge and advice’. If that person has addressed his or her mind at all to the existence of values or interests which, under the ECHR, are relevant to striking the balance, his or her views and conclusions carry some weight. But, if the primary decision-maker has not done so, or has not done so properly, his or her views are bound to carry less weight and the court has to strike the balance for itself, giving due weight to the judgments made by the primary decision-maker on such matters as he or she did consider: see Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19 per Baroness Hale at [37] and Lord Mance at [47].