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The Queen (on the application of A) v the Chief Constable of Kent Constabulary EWHC 424 (Admin)

Sarah Ellson
A applied for judicial review, and made a claim under the Human Rights Act 1998 ("HRA"), in respect of the Chief Constable of Kent Constabulary's decision to disclose allegations of neglect and A applied for judicial review, and made a claim under the Human Rights Act 1998 ("HRA"), in respect of the Chief Constable of Kent Constabulary's decision to disclose allegations of neglect and ill-treatment of care home residents in an Enhanced Criminal Records Certificate (ECRC). 

The Chief Constable received a request from the Criminal Records Bureau for an enhanced check to be made in respect of A concerning her proposed employment by Nightingales 24 7 as a registered nurse.

The Chief Constable provided information relating to four separate charges of ill treatment and neglect.  A had been found not guilty of all charges, the prosecution having offered no evidence due to concerns about the reliability of two prosecution witnesses, and the case had been dismissed.  Nevertheless, the Chief Constable stated in the ECRC entry "that this information ought to be disclosed because the alleged incidents occurred less than two years ago and the injured parties were all vulnerable adults in a care home environment.  There is a concern that children and vulnerable adults under the care of may be subjected to mistreatment."

The issue in this case was whether the disclosure was proportionate in light of the potential unreliability of the allegations. A argued that the decision to disclose the information was an unlawful interference with A's right to respect for her private life under Article 8(1) of the European Convention on Human Rights and was disproportionate.  A also alleged that the person who made the decision to disclose failed to apply the correct legal tests in assessing credibility and proportionality.

When considering its powers, the Court stated that as it was determining a claim under the HRA (and not just a claim for judicial review) it was not limited to a review of the decision on the basis of the material available to the decision maker.  It had to decide whether the Chief Constable was right or wrong in deciding that the disclosure would not be in breach of A's Article 8 rights because the disclosure was proportionate. The legitimate aim being pursued in this case was "the protection of the rights and freedoms of others" and the Court identified that disclosure will only be "necessary in a democratic society" where it is justified by a pressing social need and proportionate to the legitimate aim pursued. 

The Court held that the Chief Constable had applied the wrong legal tests and had adopted a decision making procedure which was flawed. The Court was critical of the Chief Constable's evaluation of the evidence and, in particular, the failure to consider the credibility of the allegations when carrying out the proportionality exercise required under Article 8(2). The Court considered that, because of the flawed decision making process, it could only give limited weight to the Chief Constable's view when considering whether there had been a breach of Article 8.  

In this case, the impact of disclosure for A had been grave.  She had an impressive record of employment as a senior nurse and the disclosure had prevented her from obtaining permanent full time employment in her profession. 

The Court decided in conclusion that the Chief Constable had failed to establish that the disclosure of the allegations against A was proportionate under Article 8(2). The Court considered that on the balance of probabilities the allegations against A were either exaggerated or false and that in these circumstances the balance tipped in favour of non disclosure.

Read the case here.

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