Enhanced criminal records certificates and the right to make representations

Last week I blogged about an important High Court judgment concerning the legality of the Government’s Child Sex Offender Disclosure Scheme: X(South Yorkshire) v Secretary of State for the Home Department. In that judgment, the court held that, in order to be lawful, the scheme would need to build in a requirement that, in general, registered sex offenders be given an opportunity to make representations prior to the disclosure of their data to third parties. It is worth noting that the approach adopted in X chimes very closely with the approach adopted in a case concerning enhanced CRB checks which was decided on 18 October 2012: R (on the Application of J) V Chief Constable Of Devon & Cornwall [2012] EWHC 2996 (Admin).

The case of J involved a nurse who objected to the fact that information had been recorded in her enhanced criminal record certificate (EHRC) without her knowledge. The information concerned allegations which had been made against J in connection with incidents in which she had apparently been heavy handling elderly patients. J claimed that the information, which was contained within the ‘certain other information’ section of the certificate, was partial and did not give a complete picture of the circumstances surrounding the incidents in question. She claimed that inclusion of the information in the EHRC, which had been provided to J’s prospective employers, was disproportionate and constituted an unlawful interference with her right to privacy under Article 8. The court agreed. The court went on to make clear that the decision-making process relating to the EHRC had in any event been fatally flawed as a result of the fact that J had not been given an opportunity to make representations about the information prior to its inclusion in the certificate.

What we see emerging from both X and J is a re-affirmation of the importance of the principle of natural justice in the context of the disclosures of information about individuals which are designed in principle to protect vulnerable third parties against the risk of harm.

Anya Proops