In R (L) v Chief Constable of Cumbria [2013] EWHC 869 (Admin) a teacher successfully challenged the Chief Constable’s decision to disclose certain information about him for the purposes of an Enhanced Criminal Record Certificate. The Court’s decision is instructive for disclosure officers because of the comprehensive summary of the relevant principles. It is also instructive for investigators, in terms of the solemnity required of them when asked to comment on allegations.

Introduction

Four brief notes before we get started:

  • The Enhanced Criminal Record Certificate [“ECRC”] process is now managed by the Disclosure and Barring Service [“DBS”], which replaced the Criminal Records Bureau [“CRB”] and the Independent Safeguarding Authority [“ISA”] on 1 December 2012. ECRCs help employers make decisions about the suitability of people applying to work with vulnerable groups including children. The information provided by police forces into this process often proves crucial.
  • Disclosure officers will be aware of the Statutory Disclosure Guidance published in September 2012 (the guidance did not loom large in the present case).
  • The present case should not be confused with the Supreme Court authority of R(L) v Commissioner of Police of the Metropolis [2009] UKSC 3, which also concerned ECRCs and was relied upon heavily in this case by Stuart-Smith J.
  • There has been a raft of police information law challenges of late: e.g. see the similar ECRC case of R (on the application of A) v Chief Constable of Kent [2013] EWHC 424 (Admin) [2013] EWHC 1555 (Admin).

Facts

In 2010 Cumbria Police was made aware of an allegation against L by an 18-year-old former pupil to the effect that, while at a public house, L had inappropriately hugged her and persistently asked her to go home with him, offering her £200 for that purpose.

L denied that any conversation had taken place between him and the woman on that night. He challenged the Chief Constable’s decision not to remove the information from his ECRC and sought damages to compensate him for the impact of the disclosure, described by the Judge as a “killer blow” to his employment prospects.

Decision

The Judge found that the disclosures under challenge constituted disproportionate and unjustifiable infringements of L’s European Convention right to privacy (Article 8). The essential reasoning is found at [89]:

“In my judgment, 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.”

In addition to the limited risk referred to above, and the fact that there had been no other allegations of any substance against L, the Judge emphasised that the allegations had not been tested: there were no criminal proceedings, and both the General Teaching Council and the ISA had considered the matter but not taken it further. In that respect the facts are similar to those in R (A), albeit that case involved less credible allegations against a nurse.

The allegation against L appears to have been amplified by the suspicions of one investigating officer in particular, who corresponded directly with the disclosure officer, conveying assessments of L’s demeanor in interview and sharing separate and entirely unsubstantiated rumours. That kind of approach to allegations by an investigating officer was deemed to be too lax given the high stakes for L’s career. Regarding the limited investigation, the Judge said “… I repeat that this is not to imply criticism of the deployment of scarce police resources at the time, but it has major implications for the decision whether or not to disclose” [88].

Law on ECRCs

The statutory test for disclosure of information in an ECRC is deceptively simple. The Police Act 1997, s.113B provides:

“Enhanced criminal record certificates

(3) An enhanced criminal record certificate is a certificate which

(a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with subsection (4), or

(b) states that there is no such matter or information.

(4) Before issuing an enhanced criminal record certificate DBS must request any relevant chief officer force to provide any information which

(a) the chief officer reasonably believes to be relevant for the purpose described in the statement under subsection (2), and

(b) in the chief officer’s opinion ought to be included in the certificate.”

Disclosure officers will already have the words of s.113B in mind when addressing ECRC requests. But as the L case makes clear, that will not be enough. For instance, the Judge held that the Chief Constable had “not shown a pressing need for the disclosure” [89]. You will not find those words in s.113B, which refers only to officers’ assessments of relevance and the exercise of professional judgement. But the professional judgement of a modern police officer must entail consideration of the applicant’s ECRC human rights. This requires a real balancing exercise, taking into account the purpose, however it is couched.

Many disclosure officers are already careful to contextualise the relevant information, e.g. “the allegation was denied”, or “the allegation was not fully investigated and did not result in criminal charges”. But that will not always be sufficient protection for the applicant’s Article 8 rights, given the inevitable taint of the mere fact of an allegation, whatever the qualification.

And note that the standard of review that the court will apply to police disclosure decisions in this area is not the high threshold of irrationality or unreasonableness. Instead the court will engage with the substance of the challenge and conduct a balancing exercise to determine whether disclosure was justified and proportionate. While account is taken of the Chief Constable’s reasons for disclosure, the scope for deference to his or her decision by the court is limited in challenges of this kind.

Stuart-Smith J set out a valuable summary of the case law at [4] to [27]. It is too lengthy to repeat here, but disclosure officers (and senior officers reviewing their decisions) simply must keep the principles set out in those paragraphs in mind, or risk costly litigation. You can find a link to the decision here.