L, R (on the application of) v Commissioner of Police of the Metropolis

Factual and Procedural Background

The Appellant is the mother of a teenage son who, in 2002, was placed on a child-protection register under the category of neglect. In 2004 she sought work, through an employment agency (“Company A”), as a midday supervisor in a secondary school. Because the post involved regular supervision of children, Company A countersigned her application for an Enhanced Criminal Record Certificate (“ECRC”) under section 115 of the Police Act 1997.

The issued ECRC confirmed that the Appellant had no criminal convictions but, at the discretion of the chief officer of “The Police Force,” included information about her son’s registration for neglect, his subsequent criminal conviction, and the Appellant’s alleged failure to co-operate with social services. Company A immediately terminated her employment.

The Appellant sought judicial review of the disclosure decision. Judge Munby (High Court) dismissed her claim in 2006. The Court of Appeal (Judges Longmore, Smith and Moore-Bick LJJ) affirmed in 2007. The present judgment is the Supreme Court’s determination of her further appeal, heard in July 2009 and decided on 29 October 2009.

Legal Issues Presented

1. Whether section 115(7) of the Police Act 1997, as interpreted and applied, is compatible with the Appellant’s right to respect for private life under Article 8 of the European Convention on Human Rights (“ECHR”).
2. Whether the Respondent’s decision to disclose the impugned information in the Appellant’s ECRC should be quashed.
3. If incompatibility exists, whether section 115(7) should be read down under the Human Rights Act 1998 or the court should issue a declaration of incompatibility.

Arguments of the Parties

Appellant's Arguments

• Article 8 is engaged because disclosure of sensitive personal information affects her reputation, employability and ability to develop relationships.
• The statutory threshold (“might be relevant”) is too low and results in disproportionate interference with private life.
• The prevailing guidance, derived from R (X) v Chief Constable of the West Midlands Police, creates an inflexible presumption in favour of disclosure and fails to strike a fair balance.
• Sought: (i) quashing of the Respondent’s disclosure decision; (ii) declaration that section 115(7) is incompatible with Article 8, or alternatively a Convention-compliant reading limiting disclosure.

Respondent's Arguments

• The statutory scheme pursues a legitimate aim—protecting children and vulnerable adults—and is “necessary in a democratic society” under Article 8(2).
• R (X) correctly holds that, absent good reason, information that might be relevant must be disclosed; this fulfils Parliament’s intention.
• The applicant voluntarily applied for an ECRC; the consequent disclosure therefore involves informed consent.
• The impugned information was accurate, had clear safeguarding relevance, and was properly disclosed.

Intervener (Secretary of State) – Key Submissions

• Article 8 is engaged only where disclosure is disproportionate; the statutory safeguards and employer confidentiality obligations generally ensure proportionality.
• The balance between public protection and individual privacy must respect the legislative judgment embodied in section 115.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Article 8 Engagement. Judge Hope (for the majority) held that the storage and disclosure of police information about an applicant inevitably engage Article 8 because they impact reputation, employability and relationships.

2. Statutory Construction. Section 115(7) contains two cumulative tests: (a) information might be relevant; and (b) it ought to be included. Previous case-law had under-emphasised limb (b). Giving proper weight to “ought” ensures Convention-compliant proportionality.

3. Balancing Exercise. The court rejected any rigid presumption for disclosure. Neither child-protection interests nor privacy interests automatically prevail; a contextual balancing is required in every case.

4. Operational Guidance. Existing police guidance (the MP9 “risk/human-rights” matrix) mirrors the disapproved R (X) approach by giving precedence to disclosure. The court indicated that guidance must be redrafted so that:

• Careful consideration is required whenever privacy disruption is equal to or greater than safeguarding risk.
• The rationale for disclosure must explicitly justify why interference with private life is proportionate.
• In borderline cases applicants should be invited to make representations before disclosure.

5. Compatibility. When section 115(7) is applied with the above safeguards, it can be read compatibly with Article 8; no statutory amendment is necessary.

6. Application to the Appellant. Although privacy interests were undervalued in the decision-making process, the information was accurate, directly relevant to child-safety, and its disclosure proportionate. Accordingly the individual decision, though flawed in reasoning, was substantively lawful.

Holding and Implications

APPEAL DISMISSED.

Section 115(7) of the Police Act 1997 is capable of Convention-compliant operation; therefore no declaration of incompatibility is issued and the Respondent’s disclosure decision is upheld.

Implications:

• Police forces must revise disclosure guidance to incorporate a genuine proportionality assessment and, where appropriate, a pre-disclosure consultation with applicants.
• The decision recalibrates the balance between safeguarding and privacy, but sets no new cause of action; it clarifies the statutory test and the procedural safeguards required.
• Employers remain free to consider disclosed information, but future ECRCs should reflect the enhanced privacy protections articulated by the Supreme Court.