Case Update: R (on the application of A) v Chief Constable of Kent Constabulary

13 January 2014

Court of Appeal warns against conducting a paper trial on the merits in a claim for judicial review and gives guidance on when it is appropriate for a review court to take into account post-decision material. 

Judgement date: 20 December 2013

Background

The respondent nurse (A) began employment with Southern Cross Healthcare (the Employer) in September 2011. A was employed as a staff nurse at C Nursing Home (the Nursing Home). The Nursing Home catered for patients over 65 year of age suffering with dementia and physical ailments. In the course of her employment a number of allegations were made against A by healthcare assistants. Initially, these allegations were made to A’s employer and subsequently they were referred to the police. Further allegations were also made to the police.

It suffices to say that the allegations made against A amounted to 6 separate incidents of patient abuse and a generalised allegation of sleeping on duty. A strongly denied all the allegations throughout and claimed they were made maliciously as a result of issues the healthcare assistants had with her management style. On the basis of the allegations a disciplinary hearing was convened by the Employer, the result of which was A’s dismissal.

A appealed against her dismissal and a further investigation was undertaken by the Employer. This investigation concluded that there was no evidence other than the testimony of the healthcare assistants to support the allegations and that where evidence did exist it was supportive of A’s contentions. On this basis the investigation concluded that A should be reinstated, which she duly was.

A referral was also made to the Independent Safeguarding Authority (ISA) by the Employer as a result of their original decision to dismiss. The ISA considered all the documentation provided to them by the Employer and concluded on 14 June 2012 that it was not appropriate to include A on the Children’s Barred List or the Adults Barred List.

Concurrently with the internal investigation detailed in brief above, Kent Police undertook their own investigation into the allegations made and referred the allegations to the Nursing and Midwifery Council (NMC). On 16 May 2012, Kent Police interviewed the Manager who had conducted the appeal investigation detailed above and took a witness statement from her. This statement cast doubt on the accuracy of the earlier statements made by the healthcare assistants and ultimately the Crown Prosecution Service (CPS) took the view that, due to serious concerns about the reliability of two of the main witnesses, the only proper course of action was to offer no evidence. The CPS informed A of this on 12 June 2012 and on 18 June 2012 offered no evidence at A’s trial leading to her acquittal.

On 03 August 2013, the Chief Constable of Kent Constabulary (the Chief Constable) received a request from the Criminal Records Bureau for an enhanced check (ECRB) in respect of A concerning her proposed employment with a nursing agency.  Ms Bottomley, on behalf of the Chief Constable, dealt with the request. The ECRB allows for other relevant information to be disclosed at the Chief Police Officer’s discretion and a detailed articulation of the above allegations made against A and the subsequent trial was provided on this basis. The reasons given for providing this information were that it was relevant to the employer’s risk and suitability assessment, that the alleged incidents had occurred recently (less than two years ago) and that the injured parties were all vulnerable adults in a care home; something that led to concerns that A may mistreat children or vulnerable adults again in the future. In dealing with A’s Article 8 rights and noting that the disclosure was likely to impact on A’s employment prospects, Ms Bottomley was of the opinion that the nature and degree of relevance to the post applied for was such that disclosure was reasonable and proportionate.

On 12 December 2012, the Investigating Committee of the NMC found in respect of the allegations referred to them by the NMC that the Registrant had no case to answer.

A sought judicial review of the Chief Constable’s decision to disclose the above allegations and, on 8 March 2013, Lang J held that the disclosure by the Chief Constable amounted to a disproportionate interference with A’s right to respect for her private life and was therefore an unlawful interference with her right to private life under Article 8 of the European Convention of Human Rights (the ECHR). She held this on the basis that, in her view, the evidence upon which the allegations was based was unreliable and that this impacted on any assessment of proportionality. In reaching this conclusion Lang J took into account the investigation conducted by the Employer on appeal and the fact that the CPS, ISA, the Employer and importantly, the NMC, had concluded that the allegations were not sufficiently well made out to take action against A. Lang J ordered that the decision to disclose be quashed as an unlawful interference with A’s right pursuant to Article 8 ECHR, and ordered damages to be assessed at a subsequent hearing. The Chief Constable appealed this order.

Appeal

The Chief Constable appealed on a number of grounds which Beatson LJ distilled in his judgement in to two principal contentions:

  1. The judge at first instance conducted an impermissible paper trial of the merits, making findings of fact including findings about the reliability of witnesses; and in doing so, went beyond the ‘higher intensity review’ which is required in a claim for judicial review of a decision where Convention rights are in issue, and
  2. The judge erred in relying on material which could not have been available to the Chief Constable at the time the decision to disclose was made, or on the date of disclosure. The material referred to here was the decision of the Investigating Committee of the NMC that A had no case to answer.

Decision

Beatson LJ held that the judge below was correct to find that the Chief Constable’s decision was flawed but that she fell into error in her assessment of proportionality.

In addressing the two principal contentions as articulated above, Beatson LJ held that, whilst the judge below’s approach came ‘very close’ to being fact finding, it did not do so. Beatson LJ concluded this on the basis that, in his view, Lang J did not in fact and did not purport to make any findings of fact in her judgement in the sense of whether a particular event did or did not happen. Rather she evaluated the reliability of allegations, and this was permissible; as it was necessary to assess reliability in this case to adequately determine whether the decision to disclose was proportionate.

Nonetheless, Beatson LJ further held that in taking account of material that could not have been available to the Chief Constable at the time the decision to disclose was made, she did fall into error. He stated that where the primary decision maker is not under a continuing duty in relation to the matter the reviewing court should not consider post-decision material, such as the Investigating Committee’s decision that A had no case to answer, when conducting its assessment of whether an infringement of an ECHR right was justified as proportionate. He concluded this on the basis, that as a matter of policy, where the decision maker is not under a continuing duty, the correct approach is to remit the matter; or for the Claimant to make a further application to the primary decision maker drawing attention to the new material and inviting a new decision.

Ultimately, in giving judgement Beatson LJ considered whether the disclosure was proportionate and thus justified interference with A’s Article 8 rights, and concluded that it was not; and that therefore the decision to disclose was unlawful. He concluded this on the basis that there were, as the judge below had found, serious questions about the reliability of the allegations; and further, that A had an otherwise clean nursing record and was a person of good character.  In concluding this, Beatson LJ declined to set aside the judge below’s order.

A useful case which serves to clarify the remit of a review court in applications for judicial review both in terms of what the court may properly take into account when reaching a determination of proportionality, and when it will be appropriate to consider post-decision material.

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