B e f o r e :
THE HON. MR JUSTICE LANE ____________________
____________________
Mr H Southey QC (instructed by Royal College of Nursing) for the Claimant Mr C Knight (instructed by the Government Legal Department) for the Defendant Hearing date: 30 November 2017 ____________________
HTML VERSION OF JUDGMENT ____________________
Crown Copyright ©
MR JUSTICE LANE:
Introduction
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.
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.
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.
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.
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.
Section 78(1) reads as follows:-
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.
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".
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".
The Recorder concluded as follows:-
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
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.
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".
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:-
The decision of the Nursing and Midwifery Council's Case Examiners
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.
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.
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:-
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".
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:-
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
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
The primary legislation regarding ECRCs, so far as relevant, is as follows:-
Statutory guidance
Statutory guidance has been issued pursuant to section 113B(4A) of the 1997 Act. The guidance includes eight Principles.
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.
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.
The information must be "sufficiently current". It also must be "sufficiently credible". As to this:-
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".
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.
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
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.
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:-
At paragraph 82, Lord Neuberger said:-
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):-
Beginning at paragraph 36, Beatson LJ described the "nature of the exercise" as follows:-
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:-
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.
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.
Paragraph 61 of A is, accordingly, of particular significance:-
Also relevant is paragraph 66:-
On 15 November 2017, the Court of Appeal handed down its judgment in SD v Chief Constable of North Yorkshire [2017] EWCA Civ 1838 .
The relevant facts of this case are set out in the following passages from the judgment of Beatson LJ:-
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".
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".
The court held that the issue concerning the ISA's decision was determinative of the appeal:-
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:-
Discussion
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.
In approaching this task, I follow the law, as set out earlier.
Paragraphs 8 to 10 of the IM's decision concern the "credibility of the information":-
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.
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.
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.
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.
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.
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".
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.
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.
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).
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.
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.
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.
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.
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.
The Nursing and Midwifery Order 2001 (S1 2002/253) so far as relevant, provides as follows:-
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
I must, however, consider the effect of the Court of Appeal's judgment in SD .
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).
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.
That does not, however, dispose of the difficulty. As Beatson LJ said at paragraph 57:-
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.
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.
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:-
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.
These matters, arising only at the hearing, do not admit of easy resolution.
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.
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.
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.
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.
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.
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.
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.
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?
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.
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.
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.
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.