R (Nakash) v Metropolitan Police Service; General Medical Council

The Administrative Court has handed down an important judgment on the balance between an individual’s right to privacy and the public interest in regulators having access to potentially relevant material.

The claimant doctor was acquitted of sexual assault of a patient who subsequently committed suicide. The Metropolitan Police wished to disclose certain material to the General Medical Council (GMC), to be used in an investigation into the claimant’s fitness to practise. The material comprised an extract of a Skype conversation between the claimant and a friend, and a police interview with the claimant carried out the day after the alleged offence.

The claimant sought judicial review of the police’s decision to disclose this material to the GMC. He argued that the material was obtained through an unlawful arrest and search (which the CPS had effectively conceded by withdrawing their application to adduce the material at trial) and that his Article 8 ECHR right to privacy would be infringed by disclosure. It was not disputed for the purposes of the judicial review proceedings that the arrest and search were unlawful.

Cox J dismissed the claim. She concluded that the Skype extract was clearly relevant to the GMC’s inquiry, and accepted the GMC’s submission that the circumstances in which it was obtained carried little weight in the balancing exercise required under Article 8. The fact that the material was obtained unlawfully did not outweigh the legitimate aim served by its disclosure, namely to enable the GMC, in the exercise of its statutory functions, to protect public health and safety and to protect the rights and freedoms of others. Disclosure therefore did not violate the claimant’s Article 8 rights. As to the interview, this was also relevant to the GMC’s inquiry, and disclosure to the GMC was reasonable and justified.

The judgment is available at:
http://www.bailii.org/ew/cases/EWHC/Admin/2014/3810.html

Iain Steele acted for the GMC.