The High Court has given a significant ruling in J, R (on the application of) v The Chief Constable of Devon & Cornwall  EWHC 2996 (Admin) concerning what information should or, as in this case, should not be disclosed by the police on an Enhanced Criminal Records Certificate (ECRC).
J is a registered nurse. After complaints had been received about her hurting elderly residents of a care home, the police decided that two of these complaints ought to be disclosed in an ECRC. J challenged this decision by way of judicial review. The High Court disagreed with the decision of the police, deciding that the nature of the evidence in support of the allegations (which were unproven in any forum) did not justify their disclosure in the ECRC. The decision to include these two allegations within the ECRC was accordingly quashed.
Officers dealing with ECRC matters should remind themselves of the list of factors that need to be balanced in deciding whether a disclosure ‘ought’ to be made, as suggested in the Supreme Court case of R (on the application of L) v Commissioner of Police of the Metropolis  1 AC 410:
- Gravity of the material involved
- Reliability of the information on which it is based
- Whether the applicant has had a chance to rebut the information
- Relevance of the material to the particular job application
- Period that has elapsed since the relevant events occurred
- Impact on the applicant of including the material in the ECRC, both in terms of the prospects of obtaining the post in question and more generally
In J, a distinction was expressly made between the circumstances surrounding the allegations about J (including the evidence in support of them) and the allegations in the previous cases of L (see above) and R (W) v Chief Constable of Warwickshire  EWHC 406 (Admin). In W, the High Court had agreed that the Warwickshire Police had been correct to include within an ECRC allegations against a teacher of a number of assaults on pupils.
In the case of J v Devon & Cornwall no representations were sought from the applicant. The High Court issued a clear reminder to those tasked with making ECRC decisions that it will generally be good practise to:
- Invite representations from the person concerned in borderline cases; and
- Record the rationale for inviting or not inviting representations.
It is of course crucial that all ECRCs issued are accurate and that the process set out in L is followed. However, the cases of J (and the earlier case of W) are a reminder that particular care must be taken when considering the inclusion within an ECRC of allegations against professionals such as nurses and teachers where there has not been a formal finding by a court or disciplinary body. In a borderline case, if representations from the person concerned are not sought, there is an increased risk that the subsequent certificate will be found to have breached Article 8.
The Chief Constable of Devon & Cornwall was represented by Stephen Morley, who prepared this summary of the case.