There have been a number of Panopticon posts about the lawfulness of disclosures in enhanced criminal record certificates. The latest decision is that of Mr Justice Stuart-Smith in R (L) v Chief Constable of Cumbria Constabulary  EWHC 869 (Admin).
The principles are now well established. In R (L) v Commissioner of Police of the Metropolis  1 AC 410 the Supreme Court identified that s.113B (4) of the Police Act 1997 requires that information can only be included in an enhanced criminal record certificate if, in the Chief Officer’s opinion, the information might be relevant and ought to be included in the certificate. Where it is alleged that disclosure would breach an individual’s rights under Article 8 ECHR, the Court must take into account up to date information to reach its own judgment (without deference to the Chief Constable) as to whether or not there has been an interference with the applicant’s right to private life and, if such interference has occurred, whether it is lawful.
In this case, the claimant (“L”) was an experienced secondary school teacher aged in his mid-forties. He challenged the Chief Constable of Cumbria Constabulary’s decisions, communicated by letters dated 15 May and 27 July 2012, not to remove contested information from the “other relevant information” section of the claimant’s enhanced criminal record certificates.
The following is an example of the information disclosed to L’s prospective employers:
“Cumbria Constabulary hold the following information which we believe to be relevant to the application of L …. The information relates to an allegation of inappropriate behaviour towards a female pupil of the school where L was employed as a teacher. Cumbria Constabulary believe this information to be relevant to an employer’s risk and suitability assessment when considering L‟s application for the post of supply teacher with vision for education, working with children and vulnerable adults, because the information, which is considered likely to be true, indicates an abuse by L of the position of trust in which he was placed as a teacher.
The information held by police involves an allegation by an 18- year old female that on 07.05.10, whilst in licensed premises, L had inappropriately hugged her and persistently asked her to go home with him, offering her £200 to do so, causing her to feel vulnerable and harassed. The complainant was a pupil at the school where L was employed as a teacher and he had known her since she was 12 or 13 years of age when he was her teacher.
When interviewed by police, L agreed that he had been present that evening but denied all allegations stating that he had not seen or spoken to the complainant. No further police action was taken against L in relation to these allegations as the complainant was 18 years of age and therefore no criminal offences had been committed.
After careful consideration, Cumbria Constabulary considers that this information ought to be disclosed as the alleged incident of inappropriate behaviour occurred in relation to a female pupil of the school where L was a teacher at the time. The information is materially relevant to the post of supply teacher applied for in which L will have regular and unsupervised contact with children and young adults. The risks of similar inappropriate behaviour of a sexual nature by L towards vulnerable young persons must, in this instance, outweigh the prejudicial impact that disclosure may have on L‟s private life and employment prospects as a teacher.”
Mr Justice Stuart-Smith held that the Chief Constable was obliged and right to carry out an assessment of reliability, but that he did not have materials available to him that could justify a determination that some form of communication had taken place between the claimant and the pupil. There was ample material upon which the Chief Constable could have reached the conclusion that the pupil’s evidence may well have been reliable, but the real possibility remained that the allegations were without foundation.
Mr Justice Stuart-Smith went on to find that even if the allegations were true, “the risk disclosed by the one episode of which she complained was not shown to be anything other than slight and was a risk to a very limited class of persons in tightly defined circumstances” (namely, current and former pupils whom L might come across in a pub). The incident alleged was itself relatively minor in the overall scheme of sexually inappropriate behaviour and it was an isolated incident in a long career. The incident had not been properly or fully investigated.
Further, the disclosure was made in circumstances where both the General Teaching Council and the Independent Safeguarding Authority had concluded that there was no case to answer. However, the result of the disclosure “had been as severe for L’s employment prospects as if he had been convicted of a serious offence of sexual misconduct and placed on the Sex Offenders’ Register: it is a killer blow and its effects are likely to be long lasting”.
Mr Justice Stuart-Smith concluded that “any proper balancing exercise comes down in favour of the conclusion that this interference with L’s Article 8 rights is disproportionate and unjustifiable, particularly in a jurisdiction where people are generally to be presumed innocent until proved guilty … the defendant has not shown a pressing need for the disclosure, because of the limited circumstances in which a possible risk of repetition might arise and the relative lack of gravity of the alleged conduct. Nor has the defendant shown that the means used to impair L’s rights are no more than necessary to accomplish a legitimate objective”. The disclosures in the enhanced criminal record certificates had breached his Article 8 ECHR rights.
Rachel Kamm, 11KBW