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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> LG v The Independent Monitor [2017] EWHC 3327 (Admin) (21 December 2017) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/3327.html Cite as: [2017] EWHC 3327 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 December 2017

MR JUSTICE LANE:

Introduction

1. LG worked as a District or Community Nurse. Around 2011, she began to make visits to the home of P, an elderly lady who suffered from dementia. LG was required to administer insulin to P. There is no dispute that, owing to her age and condition, P was a vulnerable woman.
2. P's family members became concerned that money was going missing from P's purse in her handbag. Eventually, in September 2013, P's family members placed covert CCTV equipment in P's home. On 21 September 2013, LG was recorded on the camera, acting in a manner that has been described as suspicious, near P's handbag.
3. The police then became involved. They installed their own camera in P's home. A recording taken from this was said again to show LG acting suspiciously near P's handbag.
4. It is common ground that neither recording went so far as to show LG taking any money from P's purse. Nevertheless, the police concluded that money had gone missing from the purse, since they had placed banknotes inside it, the numbers of which had been recorded.
5. LG was arrested in October 2013 and charged with two counts of theft. At her trial at the Crown Court, LG's representative submitted that her admission to police officers, during interview, that she had stolen money from P's purse on two occasions had been obtained by trickery. The Recorder decided to exercise his discretion under section 78 of the Police and Criminal Evidence Act 1984, to exclude the admissions.
6. Section 78(1) reads as follows:-

"(1) In any proceedings, the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

7. Before the Recorder, the case put on behalf of LG was that the police officers interviewing her had falsely given LG the impression that recordings from the cameras showed her stealing money from P. In essence, that false impression had been created by the officers referring on several occasions to LG having been "caught" by the cameras or, in one passage, "captured" by them.
8. The Recorder noted that LG was said, by the point of the interview, to have been suffering from depression, amongst other mental health difficulties. The Recorder, however, observed that the statement indicated LG had demonstrated some degree of insight into the criminal process, during her interview, by questioning whether or not the police were allowed to install CCTV in P's home. The Recorder believed this showed "a thoughtful defendant who was able to manage information that was being put to her".
9. The Recorder observed that the interview was the "central and sole evidence" against LG, given that the CCTV "simply does not indicate that [LG] is the thief". In such circumstances, the Recorder considered that "careful, a proper and full compliance with their obligations is a matter which is all the more important for police when handling cases of this kind".
10. The Recorder concluded as follows:-

"In the circumstances, it seems to me that this is a suspect, a defendant who was misled by carefully crafted questions by the officer concerned which produced in her the belief that CCTV was said to have incriminated her. She made a confession as a result and having done so the further carefully crafted questions that I have referred to, which were not themselves improper, merely added to the impression of an overwhelming case already being constructed by the police against [LG]. Her further admissions, and indeed her admissions which go beyond any reference to the CCTV material should be heard in that – or should be considered in that context.

The question I return to is the question set out in section 78, should the admission – would the admission of this evidence have such an adverse effect on the fairness of the proceedings that the court ought not to admit it? It seems to me, having regard to all of the circumstances in this case, that there would be such an adverse effect on the fairness of the proceedings that I should not admit this evidence.

Accordingly, the defence application is allowed."

11. In light of that ruling, the Recorder directed the jury to acquit LG of the theft charges. This was in July 2015.

The enhanced criminal record certificate

12. On 19 January 2016, the Chief Constable of the Hertfordshire Constabulary issued an enhanced criminal record certificate (ECRC) in respect of LG. The ECRC disclosed the criminal investigation into LG and her acquittal at the trial.
13. LG was dissatisfied with the Chief Constable's issuing of the ECRC. Accordingly, LG applied to the Defendant, the Independent Monitor, (IM), pursuant to section 117A of the Police Act 1997 (the 1997 Act). In his decision of 14 December 2016, which is the subject of the present proceedings, the IM concluded "that it would be proportionate to disclose the disputed information in the Applicant's ECRC".
14. Although described as "amended disclosure", in terms of the ECRC, which accompanied the IM's decision, are identical with those produced by the Chief Constable. Subject to redactions in the light of my anonymity order in this case, they read as follows:-

"HERTFORDSHIRE CONSTABULARY HOLD THE FOLLOWING INFORMATION WHICH WE BELIEVE TO BE RELEVANT TO THE APPLICATION OF [LG] [DATE OF BIRTH] FOR COMMUNITY NURSE IN THE ADULT WORKFORCE.

THE INFORMATION HELD BY POLICE IS THAT WHILST EMPLOYED AS A DISTRICT NURSE BETWEEN 2001 (sic; actually 2011) [AND 2013] [LG] VISITED AN 83 YEAR OLD LADY SUFFERING FROM DEMENTIA AND LACKING MENTAL CAPACITY. RELATIVES SUSPECTED [LG] WAS STEALING MONEY FROM THE SERVICE USER AND SO IN SEPTEMBER 2013 THEY PLACED A CCTV CAMERA IN HER LOUNGE. [LG] WAS SEEN ACTING SUSPICIOUSLY NEAR THE SERVICE USER'S BAG ALTHOUGH THE FULL OFFENCE OF THEFT WAS NOT SEEN. AS A RESULT OF THIS HERTFORDSHIRE POLICE INSTALLED THEIR OWN COVERT CAMERA AND [LG] WAS SEEN TO DO THE SAME AGAIN BUT AGAIN BUT [SIC] THE FULL OFFENCE OF THEFT WAS NOT SEEN.

ON 15^TH OCTOBER 2013 [LG] WAS ARRESTED ON SUSPICION OF THEFT. DURING HER POLICE INTERVIEW [LG] DENIED STEALING FROM THE SERVICE USER UNTIL INFORMED THERE WAS CCTV EVIDENCE. [LG] THEN ADMITTED TWO THEFTS, WAS CHARGED WITH STEALING £26 AND £10 ON TWO OCCASIONS IN SEPTEMBER 2013.

[LG] APPEARED AT […] CROWN COURT ON […] JULY 2015 WHERE THE JUDGE DIRECTED THE JURY TO FIND [LG] NOT GUILTY AS THE POLICE INTERVIEW WAS DEEMED INADMISSIBLE.

AFTER CAREFUL CONSIDERATION, WE CONCLUDE THAT THIS INFORMATION IS RELEVANT AND OUGHT TO BE DISCLOSED TO AN EMPLOYER, IN THIS INSTANCE, BECAUSE: [LG] IS SEEKING EMPLOYMENT WITHIN THE ADULT WORKFORCE; SHE WAS ARRESTED WHILST EMPLOYED AS A DISTRICT NURSE IN THE SAME WORKFORCE IN 2013, ON SUSPICION OF STEALING MONEY FROM A VULNERABLE ADULT IN HER CARE.

THE INTERFERENCE WITH THE HUMAN RIGHTS OF THOSE CONCERNED HAS BEEN CONSIDERED AND IT HAS BEEN DETERMINED THAT, IN THIS INSTANCE, DISCLOSURE IS PROPORTONATE AND NECESSARY."

The decision of the Nursing and Midwifery Council's Case Examiners

15. On 11 February 2016, the Nursing and Midwifery Council had issued LG with the decision of the NMC's Case Examiners, made on 9 February 2016. The Case Examiners "decided there is no case to answer" in respect of a referral made to the NMC by the Community NHS Trust, which had employed LG as a Community Nurse.
16. The NMC's letter went on to describe the background to the charges of theft, before describing the outcome of the proceedings at the Crown Court.
17. The Case Examiners were said to have considered various documents, including the police interview record, a police report dated 16 January 2014, a Psychiatric Report on LG dated 24 July 2014 and the transcript of the Crown Court proceedings. The Case Examiners also considered a written response from LG's representative, The Royal College of Nursing, together with attached documents. Having noted the decision of the Recorder, the Case Examiners:-

"… also took account of the Psychiatric Report by Dr Gary Robert Jenkins dated 24 July 2014. This report comments on whether any mental health problems would have affected [LG's] ability to answer questions calmly and accurately during a police interview. Dr Jenkins concludes "I think it extremely likely that she was consumed by a sense of contrition whereby she lapsed into a delusion of guilt leading to what was most likely to be a false confession of guilt".

18. Although the Case Examiners considered that the issue of admissibility of evidence was one for the Conduct and Competence Committee, it noted that it was the role of the Case Examiners to consider "whether the evidence is sufficiently cogent to support a realistic prospect of a panel of the Conduct and Competence Committee making a finding of fact".
19. The Case Examiners considered that taken at its highest, the description of the CCTV "may show a suspicious hand movement but does not show theft taking place". The Case Examiners:-

"also considered that the decision of [the Recorder] not to admit the evidence from the Record and Interview is further compounded by the expert evidence from Dr Jenkins that [LG's] state of mind most likely led to a false confession of guilt.

Taking all the available information into account, the Case Examiners are not satisfied that the evidence is sufficiently cogent to support a realistic prospect of a panel making a finding no fact and therefore find no case to answer."

20. The letter then mentioned that under rule 7A of the 2004 Fitness to Practise Rules, the Registrar may review the whole or part of a Case Examiner's decision if, inter alia, new information is available that the Case Examiner did not at the time of their decision, where the Registrar considers a review would be in the public interest.

The present proceedings

21. By a claim form filed on 21 March 2017, LG sought permission to bring judicial review proceedings against the IM's decision. She also sought to challenge the earlier decision of the Chief Constable; but that challenge is no longer pursued. Permission was granted by Mostyn J on 10 August 2017.

The legislation

22. The primary legislation regarding ECRCs, so far as relevant, is as follows:-
"Police Act 1997

113B Enhanced criminal record certificates

(1) DBS must issue an enhanced criminal record certificate to any individual who –

(a) makes an application … and

(aa) is aged 16 or over at the time of making the application,

(b) pays in the prescribed manner any prescribed fee.

(2) The application must –

(a) be countersigned by a registered person, and

(b) be accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question asked for a prescribed purpose.

(2A) But an application for an enhanced criminal record certificate need not be countersigned by a registered person if –

(a) the application is transmitted to DBS electronically by a registered person who satisfies conditions determined by DBS

(b) it is transmitted in accordance with the requirements determined by DBS.

(3) An enhanced criminal record certificate is a certificate which –

(a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with subsection (4),

(b) or states that there is no such matter or information, and

(c) if the applicant is subject to notification requirements under Part 2 of the Sexual Offences Act 2003 (c 42), states that fact.

…

(4) Before issuing an enhanced criminal record certificate DBS must request any relevant chief officer to provide any information which –

(a) the chief officer reasonably believes to be relevant for the purpose described in the statement under subsection (2), and

(b) in the chief officer's opinion, ought to be included in the certificate

(c) the chief officer reasonably believes to be relevant for the purpose described in the statement under subsection (2), and

(d) in the chief officer's opinion, ought to be included in the certificate.

(4A) In exercising functions under subsection (4) a relevant chief officer must have regard to any guidance for the time being published by the Secretary of State."

…

117A Other disputes about section 113B(4) information

(1) Subsection (2) applies if a person believes that information provided in accordance with section 113B(4) and included in a certificate under section 113B or 116 –

(a) is not relevant for the purpose described in the statement under section 113B(2) … , or

(b) ought not to be included in the certificate.

(2) The person may apply in writing to the independent monitor appointed under section 119B for a decision as to whether the information is information which falls within subsection (1)(a) or (b) above.

(3) The independent monitor, on receiving such an application, must ask such chief officer of a police force as the independent monitor considers appropriate to review whether the information concerned is information which –

(a) the chief officer reasonably believes to be relevant for the purpose described in the statement under section 113B(2) … and

(b) in the chief officer's opinion, ought to be included in the certificate."

Statutory guidance

23. Statutory guidance has been issued pursuant to section 113B(4A) of the 1997 Act. The guidance includes eight Principles.
24. Principle 1 is that there should be no presumption either in favour of or against providing a specific item or category of information. Principle 2 is that the information must be provided only if the chief officer reasonably believes it to be relevant for the prescribed purposes. The word "relevant" is to be given its natural meaning. What may be relevant to an application connected with caring for children or vulnerable adults may not be relevant when the applicant is seeking a licence under the gaming legislation, and vice versa. Relevance is to be assessed, in part, by reference to the purpose for which the certificate is being sought.
25. The information should also be of "sufficient gravity to justify its inclusion". Information that is trivial or which simply demonstrates poor behaviour, would not fall under this category.
26. The information must be "sufficiently current". It also must be "sufficiently credible". As to this:-

"18. This will always be a matter of judgement, but the starting point will be to consider whether the information is from a credible source. Chief officers should consider whether there are any specific circumstances that would lead them to consider that information is unlikely to be true or whether the information is so without substance that it is unlikely to be true. In particular, allegations should not be included without taking reasonable steps to ascertain whether they are more likely than not to be true."

27. The third Principle is that "information should only be provided if, in the chief officer's opinion, it ought to be included in the certificate". The guidance provides that "ought to be included" is to be read and given effect in a way which is compatible with the applicant's right to respect for private and family life under Article 8 of the ECHR. ECRCs "will, in virtually every case, involve an interference with the applicant's private life". Accordingly, chief officers must ensure that the disclosure is justified in every case. A legitimate aim must be pursued by the disclosure, such as the prevention of crime. Disclosure must be "necessary to pursue that aim including consideration of whether there are any other realistic and practical options to pursue that aim". If disclosure is necessary, "then the question becomes one of proportionality".
28. Principle 4 provides that the chief officer should consider whether the applicant should be afforded the opportunity to make representations. Principle 5 relates to the need for a "sufficient and clear audit trail to record the decision-making process and support quality control". Principle 6 indicates that the decision should be made in a timely manner.
29. Principle 7 states that the information for inclusion "should be provided in a meaningful and consistent manner, with the reasons for disclosure clearly set out". Neither the applicant nor the employer, or any other body to which they may wish to show the certificate, "should be left to speculate as to the reasons why the information has been included". Principle 8 is that any delegation of the chief officer's responsibility should be "appropriate and fully documented".

Case law

30. A former version of the ECRC legislation was considered by the Supreme Court in R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3. The Guidance to which reference has just been made is, in part, an attempt to reflect the law in this area, as set out by the Supreme Court in L, as well as in other cases.
31. The court held that, in determining whether, pursuant to what is now section 113B(4)(b) of the 1997 Act (and by extension, section 117A(1)(b)), the decision-maker must decide whether the wording of the ECRC, if disclosed pursuant to the legislation, would be a proportionate interference with Article 8 rights. Lord Hope said:-

"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 greater importance that the balance between these two consideration is struck in the right place. As the many additions that have been made to the list of matters in section 115(5) show, the use that is being made of the requirement to obtain an ECRCs has increased substantially since the scheme was first devised. The number of disclosures of information by means of ECRCs has exceeded 200,000 for each of the last two years (215,640 for 2007/2008; 274,877 for 2008/2009). Not far short of 10% of these disclosures have had section 115(7) information on them (17,560 for 2007/2008; 21,045 for 2008/2009). 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."

32. At paragraph 82, Lord Neuberger said:-

"82. In a nutshell, as Lord Hope has said, the issue is essentially one of proportionality. In some, indeed possibly many, cases where the chief officer is minded to include material in an ECRC on the basis that he inclines to the view that it satisfies section 115(7)(b), he would, in my view, be obliged to contact the applicant to seek her views, and take what she says into account, before reaching a final conclusion. Otherwise, in such cases, the applicant's article 8 rights will not have been properly protected. Again, it is impossible to be prescriptive as to when that would be required. However, I would have thought that, where the chief officer is not satisfied that the applicant has had a fair opportunity to answer any allegation involved in the material concerned, where he is doubtful as to its 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."

33. In R (A) v Chief Constable of Kent [2013] EWCA Civ 1706 a helpful summary of the purpose and effect of the ECRC legislation may be taken from the headnote of the report (135 BMLR 22):-

"Balancing the risks of non-disclosure to the interests of the members of a vulnerable group against the right of the individual concerned to respect for his private life was a particularly sensitive and difficult exercise where the allegations had not been substantiated and were strongly denied. That was the case where a chief constable was considering including allegations which had neither been substantiated nor disapproved in an enhanced criminal record certificate. That sensitivity arose because what was being balanced was a risk to vulnerable individuals that arose because of allegations and the probability of terminating an individual's prospects of employment in an occupation, perhaps the only occupation for which he was qualified. A judge scrutinising the way in which a chief constable had approached that task had additional difficulties. The most significant of those arose from the greater intensity of review that was requested when considering whether a right under the Convention had been infringed. One aspect of that was how to deploy the correct degree of scrutiny and objectively to determine whether or not a decision was incompatible with Convention rights without turning what the jurisprudence clearly stated was a process of review of the decision of the primary decision-maker rather than a redetermination into a full-blown determination of the merits of the decision."

34. Beginning at paragraph 36, Beatson LJ described the "nature of the exercise" as follows:-

"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 e.g. R v Secretary of State for the Home Dept, ex p Daly [2001] UKHL 26, [2001] 3 All ER 433 at [27], [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 SB's case [2006] 2 All ER 487 at [30], [2007] 1 AC 100 at [30], Lord Bingham stated that '[p]roportionality must be judged objectively, by the court'. See also Lord Hoffman at [68]. Lord Neuberger MR in L's case [2009] UKSC 3, [2010] All ER 113, [2010] 1 AC 410 at [74], and Miss Behavin' Ltd v Belfast City Council [2007] 3 All ER 1007, [2007] 1 WLR 1420. 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 Dept: Kashmiri v Secretary of State for the Home Dept [2007] 4 All ER 15, [2007] 2 AC 167 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 Lord Advocate [2011] UKSC 46, 122 BMLR 149, [2012] 1 AC 868, 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 ([2006] 2 All ER 487 at [30], [2007] 1 AC 100 at [30] that the evaluation of proportionality must be 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 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 [2007] 4 All ER 15 at [16], [2007] 2 AC 167 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 evidence of value 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 Miss Behavin' Ltd v Belfast City Council [2007] 3 All ER 1007, [2007] 1 WLR 1420 per Baroness Hale at [37] and Lord Mance at [47]."

35. The consequence of the present exercise being a high intensity review, requiring the court to reach its own conclusions on proportionality of disclosure, has a number of consequences of which the following require particular mention. First, there is no room for an analysis of the IM's decision which affords him any margin of discretion, viewed in "Wednesbury" terms. Secondly, any failure on the part of the IM to approach his task in the correct manner will not necessarily lead to his decision being quashed. As to this, Beatson LJ said:-

"44. Mr Basu submitted that the judge fell into the same errors as the House of Lords held this court fell into in SB's case and the Court of Appeal in Northern Ireland fell into in the Miss Behavin' case. In SB's case the House of Lords held that the decision of a primary decision-maker will not be found to be disproportionate because the decision-maker did not follow a formal structure of reasoning. Lord Bingham stated ([2006]) 2 All ER 487 at [29], [2007] 1 AC 100 at [29]) that the focus is on whether a person's rights under the ECHR have been violated and not whether the decision-making process was defective. Lord Hoffman stated ([2006] 2 All ER 487 at [68], [2007] 1 AC 100 at [68]) that in such cases the court is concerned with substance, not procedure and what mattered was the result: was the right interfered with in a way which is not justified under the relevant ECHR provision, in that case art 9(2).

45. In the Miss Behavin' case it was held that errors in the reasoning process or a failure expressly to recognise that a particular course of action would interfere with a right under the ECHR did not render the decision disproportionate. Baroness Hale stated ([2007]) 3 All ER 1007 at [31], [2007] 1 WLR 1420 at [31]) that '[i]n human rights adjudication, the court is concerned with whether the human rights of the claimant have in fact been infringed, not with whether the administrative decision-maker properly took them into account."

36. Neither of these considerations means that the court should put to one side the IM's rationale for reaching his decision and engage in an entirely free-standing analysis of proportionality. The challenge will, necessarily, be to the IM's decision and so the way in which the IM has gone about his task – and the claimant's criticisms of it – will illuminate those areas upon which the court may be required to focus. A conclusion by the court that it can find no fault in the IM's proportionality assessment means, in effect, that the court adopts that assessment as its own.
37. There is, however, an important further point to be made. Unlike, say, the assessment of Article 8 proportionality in an immigration case, where the primary facts will often not be in dispute, in cases of the present kind whether something did or did not occur (here, whether LG stole money from P's purse) may not only be unascertainable, on the balance of probabilities, by reference to the material before the IM. For the court to attempt to answer that question will usually be an error on its part. Accordingly, in A the Court of Appeal indicated that had the judge in that case undertaken a "paper trial", she would have fallen into error.
38. Paragraph 61 of A is, accordingly, of particular significance:-

"61. It is also important not to forget that, although it is for the court itself to assess proportionality, the process is essentially an evaluative one rather than one of determining a 'hard-edged question of fact'. That is one of the reasons that the starting point of the court will generally be to give appropriate weight to the conclusions of the person who has, because of or as a result of access to special sources of information been given responsibility for a topic: see [39] above referring to Lord Bingham in Huang's case. What the court has to do in assessing the proportionality of a disclosure of disputed material is to consider the state of the available material. As its task is not to determine the truth or falsity of the allegations, but whether the allegations or some of them are reliable enough to justify disclosure, in the vast majority of cases there will be no need to make findings of fact when assessing the reliability.

39. Also relevant is paragraph 66:-

"66. Mr Basu criticised the judge for treating (in judgment, [95]) the question of the reliability of the allegations as a threshold question in determining disclosure – a 'tipping' point. There was no real dispute between the parties as to the correct approach. This is, as Mr Basu submitted, to put reliability into the balance, along with the other relevant factors such as gravity, relevance, the period that has passed since the alleged events, the impact on the individual, and whether the individual has had a chance to rebut the information. The judge did not, however, make reliability a threshold factor rather than a balancing factor. All she stated at [95] was that, in this case, the balance tipped in favour of no-disclosure because of the unreliability of the allegations. She had directed herself as to the consequences of the Supreme Court's judgment in L's case and her self-direction at [46], summarised at [25] above, contains no error. She set out the statement of Lord Neuberger which makes it clear that many factors may come into play in the balancing process."

40. On 15 November 2017, the Court of Appeal handed down its judgment in SD v Chief Constable of North Yorkshire [2017] EWCA Civ 1838.
41. The relevant facts of this case are set out in the following passages from the judgment of Beatson LJ:-

"2. The appellant, SD, worked in the education sector. Until 31 October 2011, he was employed by a college of further education teaching vocational skills to students aged between 17 and 24. In August 2013 the appellant began new employment as a child workforce technician with Visions Learning Trust. He was asked by his employer to apply for an ECRC and did so. The respondent, the Chief Constable of North Yorkshire Police, invited submissions by the appellant on the disclosure he proposed to make concerning a disputed allegation that the appellant had made comments of a sexual nature while employed by the college of further education. The comments were alleged to have been made while he was supervising an overseas student trip and in the presence of students aged between 17 and 24 and other adults in July 2010. The respondent rejected the submission that no disclosure should be made but modified its terms in the light of the appellant's submissions. The ECRC issued was dated 14 February 2014.

…

12. The allegations were that on the trip SD took photos of male students outdoors with their tops off and made sexually inappropriate remarks in the presence of the students and others. ….

13. Following the trip, the appellant was questioned and reprimanded. The college later stated that he was questioned about the sexually inappropriate remarks but his position is that the reprimand related only to other matters.

14. In August 2011, the appellant raised a formal grievance against a colleague about other matters. In the course of the college's investigation of that grievance, the investigator was informed of the allegations about the appellant's conduct on the trip. The appellant believed that the colleague against whom he had raised the grievance had encouraged others to do this to discredit him. There was an investigation into his conduct on the trip and the outcome of the investigation was a recommendation that the matter be dealt with as gross misconduct under the college's disciplinary procedure. The disputes between the appellant and the college were, however, settled by a compromise agreement dated 31 October 2011, under which he left the college and received severance pay of £8,874, and the college agreed to give him a positive reference.

15. The college then referred to the allegations about the appellant's conduct prior to his leaving its employment to the police and to the Independent Safeguarding Authority ("ISA") which at that time was responsible for maintaining the lists of those barred from working with children and vulnerable adults. The police investigated the matter in November 2011 without informing the appellant: he was unaware of the investigation. The police concluded that no crime had been committed.

16. In a letter dated 12 January 2012, the ISA informed the appellant that it was considering whether to include him in the lists. In a letter to him dated 13 March 2012, the ISA stated that it had concluded its enquiries, had "carefully considered all the information available" to it, and "on the basis of this information … decided that it [was] not appropriate to include" the appellant in either of the barred lists. The letter also made two other points. It stated that, while the ISA's decision meant that the appellant would not be prevented from carrying on regulated activity, "there may be other restrictions placed on you by other bodies and our decision does not overrule these". It also stated that its decision had no bearing on the decision of an employer in the future not to employ the appellant. That decision would be made on the basis of "information gathered from references, criminal record checks, and other relevant sources of recruitment information"."

42. At paragraph 33(a), the court noted that one of the grounds of challenge to the decision of the High Court, on judicial review, was that neither the Judge nor the police "had considered that the ISA had decided that the appellant should not be barred from working with children and was fit to continue to do so".
43. At paragraph 39, Beatson LJ recorded Mr Southey QC's submission on behalf of SD, that the view of the ISA was "relevant and important, although not conclusive. This was because the ISA was required to establish and maintain a children's barred list under section 2(1)(a) of the Safeguarding of Vulnerable Groups Act 2006 and to include a person in that list if satisfied that the person has engaged in relevant conduct, which includes conduct that puts a child at risk of harm, and it is appropriate to include him or her in the barred list".
44. The court held that the issue concerning the ISA's decision was determinative of the appeal:-

"43. The respondent's submission that the appellant only sought to rely on the ISA's decision in the context of the seriousness of the allegations might have had force had the judge considered it in that context. But the judge did not refer to the ISA's decision in the section of his judgment on seriousness. Nor does it appear that the respondent took into account before deciding on the terms of the disclosure. There is no reference to it in the AT3 document and the respondent has argued that the ISA's decision was not a relevant factor. The only reference to it in the police documents before us was the one in the response dated 19 June 2014 to SD's complaint after the ECRC was issued. That post-ECRC document does not show that the police took account of the ISA's decision in framing their disclosure.

44. In any event, it was for the judge to consider all the relevant factors when assessing proportionality. The ISA's decision was one of those factors and it should have been considered, both in assessing whether any disclosure should be made, and in assessing whether disclosure without referring to the ISA's decision is disproportionate for that reason. It may well have been the case that a disclosure which referred to the ISA's decision but stated that the ISA was only concerned with barring and the role of the Chief Constable and the DBS was with more nuanced decision-making would have been unassailable, but that is not what was disclosed.

45. The respondent submitted that the ECRC aimed to make the employer aware of all the facts to make a fair, informed and balanced decision on employment and to mitigate and manage any potential risk. But deciding to make disclosure without referring at all to the decision of the ISA does not make an employer aware of all the facts. From an employer's perspective, not making any disclosure at all of the allegations might be regarded as not enabling the employer to make an informed balanced decision on employment and to mitigate and manage any potential risk posed by an individual.

46. I am satisfied that this is a clear example of a failure by the police to take account of a relevant factor in making a decision. There is no reference to the ISA in the AT3 document and, as stated at [43] above, the only reference to it in the police documents is in the post ECRC response dated 19 June 2014 to SD's complaint. But for one factor, the judge's failure to take this into account would also be a clear example of a reviewable error. That factor is that before the judge there was no objection by those acting for SD to the terms of the disclosure. Mr Skelt submitted that, for this reason, the judge cannot be criticised for not referring to the ISA's decision, and I accept that the explanation for the judge's silence may have been because those representing SD were concentrating on arguing that no disclosure at all should have been made. However, given the obligation of the court to consider proportionality and the fact that the decision of ISA was before the court, and the statements in A's case as to the relevance of the decisions of the ISA, I do not consider that this precludes the appellant now taking this point. Accordingly, for these reasons, I have concluded that the judge erred in this regard. In my judgment, that is sufficient to justify allowing the appeal and setting aside his order." (my emphases)

45. Having concluded that the Judge did not reach sustainable findings on proportionality, the court was required to make its own assessment. In so doing, it held as follows:-

"56. There are a number of factors that strongly point to the proportionality of a disclosure of some sort. First, in the light of the evidence corroborating the allegations, they seem to be fairly reliable. Secondly, since the appellant was applying for a job working with children and the allegations concerned his behaviour in front of children, the allegations remain relevant despite the fact that the behaviour, although inappropriate, was not criminal and that the students making the allegations indicated that they found the behaviour inappropriate, strange and childish, but none indicated that they felt in danger from the appellant.

57. It is true that there were some four years between the allegation and the date of the disclosure and there were no other incidents in that time, although the appellant had been working with children for some of that time. Those factors, together with the ISA's decision and the likely consequence for the appellant of not being able to work in his chosen field, lead me to conclude that, while some disclosure was justified, disclosing only the allegations and SD's denial of them is unbalanced and therefore disproportionate to the risk posed by him. The reaction of an employer might be "Well he would say that, wouldn't he?". In my judgment, what is of particular relevance is the fact that the disclosure was made with no reference to the ISA's decision. Including a careful and proper reference to that would have made an employer aware of all the material facts and have assisted in making a fair, informed and balanced decision on employment. It might have been inappropriate also (see [44] above) to refer to the different regulatory role of the ISA and the binary nature of the decision of the ISA as compared with the more nuanced nature of decision-making as to disclosures in ECRC's by the Chief Constable and the DBS.

58. Conclusions: For these reasons, I have concluded that the failure to take account of the decision of the ISA or to refer to it in an appropriate manner in the disclosure meant that the disclosure was unbalanced and disproportionate. If my Lords agree with me, this appeal will be allowed and the ECRC will be quashed."

Discussion

46. It is common ground that, in the circumstances of the present case, the relevance of the information contained in the ECRC is such as to satisfy the requirements of section 113(4)(a) and 117A(3)(a) of the 1997 Act. As will by now be apparent, the task of the court is, accordingly to determine whether the information under the heading "amended disclosure", as attached to the IM's decision of 14 December 2016 ought to be included in the certificate. Answering this question requires the court to assess whether the information's inclusion constitutes a proportionate interference with LG's Article 8 right to respect for her private life.
47. In approaching this task, I follow the law, as set out earlier.
48. Paragraphs 8 to 10 of the IM's decision concern the "credibility of the information":-

8. The applicant denies the allegations. In my review I have considered the information provided by the police and note that she admitted the offence initially at interview but that this admission was inadmissible at court. I noted that the police and the consultant psychiatrist had referred to the cctv of the alleged incident and so I have taken the opportunity to view the cctv myself.

9. I viewed the cctv obtained by the victim's family as this was of better quality than the police cctv. The recording clearly shows a woman wearing a nurse's uniform. She enters the picture and sits on the end of the sofa and at the same time places a file and some papers along with a blue cash type box on the sofa next to her. The file and papers cover what appears to be a bag. The woman looks around and places her right hand under the file and papers and is clearly seen to be moving her hand around whilst looking around the room. At one point she uses her left hand as well and looks in the direction of the object under the file. After a short while she withdraws her right hand and with the file held over it, appears to place her hand in her right front pocket. As she does this it does appear to me that there is something in her hand.

10. From my viewing of the cctv I am satisfied that the information provided by the police is an accurate description of the evidence and allegation. I also believe that from viewing the cctv it is reasonable to believe that the applicant was searching the handbag and that she did take something and place it in her pocket. I have therefore given the cctv evidence significant weight."

49. Mr Knight urged me to find that the IM's reaction to the CCTV recording should be given significant weight, because the IM has long experience as a serving police officer. Mr Southey submitted that I could and should form my own view of the recording. I viewed the recording at the beginning of the hearing, in company with both Counsel. I accept that it does not show LG, on camera, taking money from a handbag and placing it about her person. I agree, however, with the IM that the recording shows that LG "did take something and placed it in her pocket". Even allowing for the fact that LG had to make relevant notes in her files and prepare the insulin for administration to P, the footage shows "fiddling about" (in Mr Southey's phrase) or rummaging, beneath the file.
50. In short, I agree with the factual description of what the recording shows, as set out in the IM's decision. The activity is, in all the circumstances, properly to be categorised as suspicious.
51. I have set out the background to the installation of the CCTV cameras in the introductory section to this judgment. The background is drawn from paragraphs 2 and 3 of the IM's decision.
52. LG cannot, I consider, take issue with the fact that the IM (and, in any event, the court) must have regard to the circumstances in which the decision was made by the family to set up the CCTV camera, and, later the decision of the police to install their own CCTV equipment in P's home. Mr Southey took issue with Mr Knight's drawing attention to the redacted police report, which is exhibit SP-6 to the witness statement of Simon Pountain (the IM). There is, however, no reason whatsoever to doubt the fact that the IM had regard to this report (as he asserts in his statement), when writing his decision. The report goes into considerably more detail regarding the background to the decision of P's family to install the camera. That decision was plainly taken against the background of P losing money on a regular basis.
53. At paragraph 11 of the decision, the IM turns to the credibility of LG. She initially denied the allegation of theft and then admitted to the two thefts "which she was led to believe had been captured on video". The IM correctly records LG as having denied the other thefts.
54. As we can see from the "amended disclosure", the ECRC states in terms that when LG appeared in court in July 2015, "the Judge directed the jury to find [LG] is not guilty as the police interview was deemed inadmissible".
55. Mr Southey launched a strong attack upon the IM's handling of this aspect of the matter. He pointed to the fact that neither the ECRC nor the IM's decision made any reference to section 78 of the 1984 Act and to what Mr Southey says is the essential element of fairness, which must apply to the process in which the IM was engaged, as it had applied at the criminal trial.
56. I reject this criticism of the decision. More importantly, given that the court is making its own proportionality assessment, I find that the Recorder's decision to exercise his discretion under section 78 so as to exclude the record of interview – whilst of some weight – is in no sense determinative of the outcome in this case.
57. I agree with Mr Knight that one looks in vain at the transcript of the decision of the Recorder on the section 78 issue for any indication that the Recorder was exercising his discretion because the admissions made by LG at the interview were rendered unreliable, as a result of the references made by the interviewing officers to LG having been "caught" or "captured" on CCTV. I accept that the Recorder might have exercised his discretion under section 78 because he thought LG's admissions were, in the circumstances, unreliable. Section 78, however, gives Judges in criminal cases a power to exclude evidence in circumstances where that evidence may be reliable. The fact that the Recorder is, I consider, unlikely to have based his decision on the issue of reliability can be seen from the fact that he considered and rejected the medical evidence on behalf of LG, which suggested that she had been depressed at the relevant time and had admitted to the theft out of "delusion of guilt" (as asserted by Dr Jenkins).
58. I reject Mr Southey's submission that the Recorder's view of what was unfair, in the context of a criminal trial, must govern the IM's (and the court's) assessment of what is proportionate for the ECRC to say about LG. As a concept, "fairness" may have a universal meaning. But what fairness demands is context-specific. The purpose of the criminal law is significantly different from the purpose underlying sections 113A and 117A of the 1997 Act. The fact that the Recorder decided in the exercise of his discretion to exclude evidence which, if admitted, could have led to LG being convicted of a criminal offence, with all that entails, does not necessitate the result for which Mr Southey contends. It is a commonplace of the ECRC system that, depending on the circumstances, the public interest will require a prospective employer to be aware of matters that did not result in criminal conviction of a person concerned, even though a criminal prosecution was brought.
59. Mr Southey attempted to draw a parallel between the Recorder's decision and the IM's decision, on the one hand, and the decisions under scrutiny in Bradley v Work and Pensions Secretary [2008] EWCA Civ 36. These were the decision of the Parliamentary Commissioner for Administration's finding of maladministration and the Secretary of State's decision to reject the Commissioner's finding. Again, the attempt founders, I find, on the difference in the statutory schemes. Both in Bradley and in Anufrijeva v Secretary of State for the Home Department [2003] UKHL 36 (also relied on by Mr Southey) there was a strong and direct relationship between the two decision-makers, which is absent in the present case.
60. I accept that the result of the contents of the ECRC may, in LG's case, have been to cause her employer to decline to use LG's services as a Community Nurse, requiring her instead to pursue her profession as a nurse in a hospital environment, without the kind of close and unsupervised contact that she had with those such as P. But this does not entitle the court to blur the distinction that undoubtedly exists between, on the one hand, the law of theft and criminal procedure and, on the other, the ECRC legislative scheme.
61. The NMC's finding of no case to answer (see paras 15 et seq above) also features very prominently in LG's challenge. Both Mr Southey and Mr Knight were agreed that that a decision of a statutory regulator, such as the NMC, is not necessarily conclusive. The reasons why they reached this conclusion were, however, significantly different. Mr Southey hypothesised the situation where the regulator had been concerned with an activity that the person in question had pursued but that person subsequently decided to seek employment in a quite different area. In such a case, Mr Southey accepted that the prospective employer in that new area may have concerns about the person's past behaviour, which would not necessarily have been definitively addressed by the conclusions of a regulator tasked with enforcing the standards of behaviour in its own, different sphere.
62. Mr Knight's submission that the NMC's decision was not conclusive necessarily had to face the fact that the NMC regulates those who are registered nurses and that the ECRC is concerned with LG's activities as such a nurse. Mr Knight's submission was that, nevertheless, the ECRC legislation and that governing the NMC serve distinct aims.
63. The Nursing and Midwifery Order 2001 (S1 2002/253) so far as relevant, provides as follows:-

"3. The Nursing and Midwifery Council and its Committees

(1) There shall be a body corporate known as the Nursing and Midwifery Council (referred to in this Order as "the Council").

(2) The principal functions of the Council shall be to establish from time to time standards of education, training, conduct and performance for nurses and midwives and to ensure the maintenance of those standards.

(3) The Council shall have such other functions as are conferred on it by this Order or as may be provided by the Privy Council by order.

(4) The over-arching objective of the Council in exercising its functions is the protection of the public

(4A) The pursuit by the Council of its over-arching objective involves the pursuit of the following objectives –

(a) to protect, promote and maintain the health, safety and well-being of the public;

(b) to promote and maintain public confidence in the professions regulated under this Order; and

(c) to promote and maintain proper professional standards and conduct for members of those professions."

64. Mr Knight contended that the function of the NMC and its committees is to determine whether one of its registrants is fit to practise in the profession or whether that fitness has been impaired by any matter. This was, according to Mr Knight, a very different question from that of whether a potential employer should be enabled, by means of the ECRC, to take a properly informed view of risk posed by a potential employee.
65. There is, I consider, a difference between deciding whether a registrant should be able to practise their profession at all (or only with particular conditions or restrictions), and whether a potential employer of that professional should be able to take an informed view of whether the professional might pose a risk whilst working for that particular employer in a particular role.
66. Accordingly, although there is a relationship between these two matters, I do not accept the submission that the NMC's decision was necessarily of such significance as to render disproportionate the inclusion in the ECRC of the information concerning the charges of theft against LG.
67. Further and in any event, the IM correctly identified the limited scope of the NMC's decision. The NMC had not viewed the video evidence. The IM had. As I have indicated, my own view of that evidence is that it carries weight.
68. The NMC had also sought to bolster its decision by reference to the evidence of Dr Jenkins, concerning the alleged mental state of LG at the time of her interview, which may have led to her making a false, delusional confession. The IM had regard to the psychiatric report of Dr Iankov, Consultant Psychiatrist, which had been prepared in connection with the prosecution of LG. This report painted a markedly different picture of LG from that of Dr Jenkins.
69. The fact that the NMC did not watch the recording, and that it did not consider Dr Iankov's report alongside that of Dr Jenkins, does, I find, reduce the weight to be placed on the NMC's conclusions. In the circumstances, the existence of the NMC's decision, taken in the round with the other factors to which I have regard, does not lead to the conclusion that an ECRC which makes reference to the matters leading up to the acquittal of LG cannot, for that reason, be regarded as proportionate.
70. In considering credibility or, as it may more usefully be described, reliability, in the context of the Guidance and the case law, I have come to the conclusion that the information set out in the second paragraph of the amended disclosure is, in all circumstances, sufficiently reliable. In this regard, I agree with Mr Knight that it is of significance that LG has never sought in her representations to the Chief Constable or the IM or, indeed, in these proceedings, to deny taking money from P on the two occasions to which she admitted in interview.
71. Mr Southey submitted that a less restrictive means than including the relevant information in the ECRC would have been for the IM or the Chief Constable to make a complaint to the NMC and to ask for a review of the Case Examiners' decision, on the basis that it was taken without reference to the CCTV recording and the evidence of Dr Iankov.
72. I do not accept that this submission has the force for which Mr Southey contends. There is, to begin with, no support for it in the case law. More particularly, it amounts, in my view, to essentially the same proposition as I have described earlier; namely, that the NMC's function of public protection is such that any fitness to practise finding concerning a matter that might otherwise be included in the ECRC precludes that matter from being so included. As I have already said, although the relevant functions of the NMC and of the Chief Officer of police/IM are, in this regard, similar, they remain distinct and one is not necessarily to be subordinated to the other.
73. For all these reasons, were it not for the matter to which I must next turn, I would find that disclosure of the information set out in the "amended disclosure", accompanying the IM's decision of 14 December 2016, would not be a disproportionate interference with LG's Article 8 rights. The information in the second paragraph is sufficiently credible (i.e. reliable), serious and current as to make it appropriate, in the interests of protecting those in the position of P, that LG's prospective employers in the nursing profession are aware of it. The public interest in disclosure outweighs her interest in being able to pursue her wish to return as a Community Nurse, without the difficulties that undoubtedly arise from a revelation of the matters to which the second paragraph of the ECRC relates.
74. I must, however, consider the effect of the Court of Appeal's judgment in SD.
75. I have explained why I conclude that the NMC's decision, finding no case to answer in respect of the issues raised by LG's employer regarding her arrest and prosecution, is not sufficient (whether alone or in combination with other material issues) to render disclosure of the second paragraph of the ECRC disproportionate. It is, nevertheless, the case that the NMC's decision is a relevant part of the overall picture that a prospective employer of LG, as a nurse, would need to take into account, in reaching a properly informed decision on the risk the employer might be taking by employing LG as a professional nurse. In this regard, I note, in particular, the highlighted passages in paras 44 and 45 of Beatson LJ's judgment (para 44 above).
76. It seems to me that the significance of the NMC's decision in the present case is at least equal to that of the ISA's decision in the case of SD. It is perfectly true, as Mr Knight submitted, that a distinction between the present case and that of SD is that in the present case the IM plainly did have careful regard to the decision of the NMC. In SD, the Chief Constable does not appear to have had any regard to the decision of the ISA.
77. That does not, however, dispose of the difficulty. As Beatson LJ said at paragraph 57:-

"Including a careful and proper reference to [the ISA's decision] would have made an employer aware of all the material facts and have assisted in making a fair, informed and balanced decision on employment. It might have been appropriate also … to refer to the different regulatory role of the ISA and the binary nature of the decision of the ISA as compared with the more nuanced nature of decision making as to disclosures in ECRC's by the Chief Constable and the DBS."

78. By the same token, the absence of any reference to the NMC's decision presents a problem. I do not think it can be resolved by the court's concluding that no hypothetical employer, presented with an ECRC that referred to the NMC's decision, including its different sphere of operation, would necessarily reach the same view about the suitability of LG for employment by that employer, as would be the case if (as it currently stands) the ECRC contained no reference to the NMC's decision.
79. Mr Knight made the point that an ECRC is a document that is given on request to an employer of a particular kind. This was important, in Mr Knight's submission, for the following reason. The ECRC was provided to LG in order to give it to her existing employer. That employer was the one who initiated the process in the NMC, leading to the decision of no case to answer. As a result, according to Mr Knight, it was inconceivable that LG's employer would not know about the decision of the NMC. The employer would, therefore, have been in the position to consider both the information set out in the second paragraph of the "amended disclosure" and also the reasons given by the NMC panel for finding that LG had no case to answer in respect of fitness to practise as a nurse.
80. For his part, Mr Southey said that ECRCs were now given to persons in the position of LG, so that the ECRCs could be provided to more than one prospective employer, rather than each such employer having to go through the process of application under section 113B. Furthermore, Mr Southey pointed out that paragraph 25 of the IM's decision envisaged this very scenario:-

"25. The representations state that the applicant is no longer permitted by her employer to have direct patient contact alone. The applicant's representative say that this means that she cannot return to her role as a District Nurse and that this shows that the disclosure had had a direct and adverse impact on her opportunity to work as a District Nurse. I note this point insofar as roles which require enhanced criminal records checks and require the applicant to work alone and it may therefore be the case that there are other roles in nursing that the applicant would be able to undertake despite these restrictions. That said I do accept that the presence of this type of information could have a wider impact on the applicant as some employers in the applicant's chosen field may use the information as part of their sifting process for job applications."

81. In answer to Mr Knight's point that it would nevertheless still be open to LG to obtain a new ECRC, in order to put to another prospective employer, Mr Southey said that this may well lead to questions being asked by the other employer, who would know or at least suspect that a fresh ECRC was having to be prepared.
82. These matters, arising only at the hearing, do not admit of easy resolution.
83. There is considerable force in Mr Knight's submissions, on behalf of LG, that there is nothing in the grounds of application or, indeed, any subsequent written submission on behalf of LG, that makes any reference to the contention that the ECRC is disproportionate in Article 8 terms because it fails to refer to the decision of the NMC. Mr Knight told me, on instruction, that if this matter had been put to the IM before proceedings commenced, the IM would have examined the wording of the certificate.
84. Mr Southey informed me that there had been no issue raised in SD about the claimant's need to amend his pleadings, in order to make the point. He nevertheless accepted that the matter could have been raised in the present proceedings somewhat earlier than in his note of 27 November 2017. Mr Southey submitted that, so far as concerned raising the matter with the IM during the latter's section 117A process or, indeed, with the Chief Officer in connection with the section 113B process, a person in the position of LG, whose basic aim was to avoid the inclusion in the ECRC of the matter that gave rise to the NMC's (or other regulator's) decision, any alternative submission would be seen by the IM (or Chief Officer) as weakening the primary aim.
85. There is some force in Mr Knight's "pleadings" submission. The fact that a challenge is brought on Article 8 proportionality grounds does not absolve a claimant from the need to articulate, with reasonable precision, the ways in which the decision-maker is alleged to have reached the wrong conclusion and to explain how, in the claimant's view, the court should approach its balancing task.
86. In the present case, however, the significance of the point in issue has come into sharp focus only on the handing down of the judgment in SD. Mr Knight properly acknowledged that this court could not give a decision which, in the light of binding authority, would be unlawful.
87. I have to say I am entirely unpersuaded by Mr Southey's submission regarding a person's reluctance to put to the IM or Chief Officer the alternative submission, to the effect that if the ECRC is to make reference to particular matters, then it should also refer to the decision of any relevant regulatory body which has made findings on those matters. The IM and the Chief Officer are each charged with the obligation not to act in breach of the ECHR. The fact that such an alternative submission is put to them does not in any way alter their obligations. If it would be disproportionate to make any disclosure, their decision must so find, whether or not any alternative submission has been made.
88. Mr Knight's final utterance on this issue was to suggest that the court should, in the circumstances, grant declaratory relief, rather than a quashing order, if I were satisfied that – the light of SD – the ECRC was flawed because of its failure to include appropriate reference to the NMC's decision.
89. I am not persuaded that this would be an appropriate course to take. The basic message of the case law in this area is that, where a decision is found to be legally flawed, it should be quashed rather than merely be declared to be unlawful (Tata Steel UK Ltd v Newport City Council [2010] EWCA Civ 1626; Berkeley v Secretary of State for the Environment [2001] 2 AC 603). Leaving the ECRC legally in place, even though it represents a disproportionate interference with LG's rights, is not, in my view, an appropriate course. The fact that the Court of Appeal has only recently identified the need to consider including a reference to the regulator's decision, in the circumstances with which we are concerned, does not enable the IM to escape a finding that his decision was disproportionate for this reason. SD explains what proportionality demands in this area. SD does not, of course, speak only to the future.
90. I therefore return to the question posed earlier. Does the fact that the ECRC was issued for use with an employer who must be taken to have known about the NMC's decision mean that the failure to refer to the NMC's decision in the ECRC did not render the certificate disproportionate?
91. I have concluded that the answer to this question is, no. As we have seen, the IM envisaged that the ECRC would have portability, in that LG would be expected to produce it, not only to the NHS Trust which was her current employer, but also to any other relevant potential employer.
92. In any event, the lack of any reference to the NMC's decision in the ECRC fails to accord with paragraph 33 of the Guidance, concerning Principle 7, which provides that the "information should be self-contained and stand on its own merits". The point of the ECRC is to enable whoever is taking a decision on the part of a prospective employer to have a full picture of the person to which the ECRC relates. One can easily envisage that, in the case of organisations of significant size (including NHS Trusts), the person perusing the ECRC may be unaware that someone else in the organisation holds relevant information on the individual who is seeking employment such as, in this case, the decision of the NMC.
93. For these reasons, given my findings regarding the disproportionate fact of the failure to include reference to the NMC's decision in the ECRC, the fact that the NHS Trust had been informed of the decision does not cure the disproportionate effect of the ECRC.
94. In the light of that finding, my conclusions regarding the procedural matters discussed in paras 83 to 89 above lead me to conclude that it would be wrong to withhold from LG the relief of quashing the IM's decision concerning the ECRC.

Decision

The ECRC is quashed.