AB, R (On the Application Of) v The Chief Constable of Hampshire Constabulary

This case concerns the lawfulness of the disclosure, by the police to a Local Authority Designated Officer, of non-conviction material relating to alleged sexual misconduct by a teacher, and the subsequent dismissal of a complaint concerning the disclosure under the Police Reform Act 2002.

AB (“the claimant”) is a 43 year-old qualified teacher who, after holding posts at a number of schools between 2001 and 2007, (including CD High School from which it is understood that he resigned in July 2006 in order to further his career elsewhere), gained a position at EF College (“the college”). He was employed at the college for a period of about 3 ½ years between January 2007 and November 2010, where he taught science to children at Key Stages 2, 3 and 4, eventually becoming the college’s Assistant Director of Science.

However, on 13^th July 2009 the claimant received a letter from the college’s principal, GH, informing him of her decision to issue him with a first written warning, as a result of her findings, following an earlier disciplinary hearing on 8^th July 2009, that his use of Facebook was unacceptable and that he had breached health and safety regulations during a science lesson.

On 22^nd September 2010 the claimant received a further letter from GH informing him of her decision to summarily dismiss him for gross misconduct, following the findings of an earlier disciplinary hearing on 20^th September 2010 that:

“1.

You made comments to students which were inappropriate in nature, some of which could be construed as being of a sexual nature.

2.

Your conduct in class constituted an inappropriate sexual response.

3.

Your conduct in College was at times inappropriate, using humour and jokes inappropriately leading to the discomfort of students.

4.

Aspects of your inappropriate conduct are deemed to have taken place whilst you were subject to a 12-months written warning for unacceptable conduct.

5.

Your conduct was in contravention of the General Teaching Council (GTC) Code of Conduct for Registered Teachers specifically point 1 on page 8: ‘Establish and maintain appropriate professional boundaries in their relationships with children and young people’, and the Schools’ Disciplinary Policy & Procedure, Appendix A.”

The claimant appealed against the decision to the college’s disciplinary appeals panel, and on 30^th November 2010 the claimant received a letter on behalf of the governors of the college confirming the decision of the panel to dismiss the appeal which was made at a hearing on 22^nd November 2010. The letter stated that the dismissal was justified for the reasons given within the original disciplinary hearing, but also confirmed the following relating to his three grounds of appeal,

“Point 1, the panel decided that on the balance of probability the inappropriate comments of a sexual nature were made to female students by you and you had therefore not ensured that professional boundaries were maintained. The panel believe this breached the GTC code of conduct and constitutes gross professional misconduct;

Point 2, on the balance of probability the panel concluded that you did have an erection in the classroom and then used language which was taken by the students to be of a sexual nature. The panel would expect an experienced teacher, as you are, to be aware of the fact that the words used could be construed as sexual terms or innuendo. The panel believes this constitutes gross professional misconduct.

Point 3, as confirmed by your union representative, he has been unable to find evidence to support the claim of being subjected to a detriment as a consequence of your trade union activities, and the panel were unable to find any such evidence either.

Your appeal was therefore not upheld on any of your 3 grounds of appeal.”

It would appear that the college and/or the relevant Council notified both the Independent Safeguarding Authority (“ISA”) and the General Teaching Council of England (“GTC”) of the claimant’s dismissal.

On 17^th March 2011 the ISA wrote to the claimant informing him that,

“We have now concluded our enquiries and have carefully considered all the information available to us. On the basis of this information we have decided that it is not appropriate to include you in the Children’s Barred List or the Adults’ Barred List.”

At that time the Safeguarding of Vulnerable Groups Act 2006 provided at s.3(3) that,

“[ISA] must include the person in the children’s barred list if –

(a)

it is satisfied that the person has engaged in the relevant conduct, and

(b)

it appears to [ISA] that it is appropriate to include the person on the list.”

By s.4(1) “relevant conduct” was defined as, inter alia,

...

(e)

conduct of a sexual nature involving a child, if it appears to [ISA] that the conduct is inappropriate.

....”

The ISA also confirmed that the GTC would be informed of its decision.

On 2^nd September 2011 the GTC wrote to the claimant informing him of the decision of a meeting of their investigating committee, following an investigation carried out by Kingsley Napley LLP on their behalf under the Teaching and Higher Education Act 1998, that,

“The Committee was not satisfied that there is a real prospect of a Professional Conduct Committee making a finding of unacceptable professional conduct. The Committee was not satisfied that the evidence is sufficient to establish the alleged facts.”

At that time, “Unacceptable professional conduct” was defined in the GTC’s Disciplinary Procedure Rules as, “conduct which falls short of the standard expected of a registered teacher within the meaning of paragraph 8(1) of Schedule 2 of the Act and is behaviour which involves a breach of the standards of propriety expected of the profession.” The GTC also confirmed that both the relevant council and the college would be informed of its decision.

On 10^th November 2011 the claimant was offered, on behalf of its governing body, a teaching position at the IJ school (“the school”), albeit that he was asked to complete and return an “Application For Teaching Appointments” issued by the relevant City Council (“the council”). The claimant completed the form on the same date, and under the heading,

“Previous Teaching Experience…….Reason for Leaving”

the claimant included the following in relation to his employment at the college,

“Dismissal. Decision not ratified by the GTC who found I had no case to answer.”

On 16^th November 2011 the school offered the claimant the position of teacher of mathematics and science for a fixed term between 1^st December 2011 and 31^st August 2012, albeit the Statement of Particulars of Terms of Employment stated that his employer was the council. Subsequently in June 2012 the fixed term was extended until 15^th April 2013, and it is understood that thereafter the claimant was likely to have been offered a full-time post at the school.

In about September of 2010 DC Pain, a member of the child abuse investigation public protection unit of the Hampshire Constabulary (“the defendant”), had visited the college in relation to the dismissal of another teacher and been informed by GH that there was an ongoing disciplinary hearing in relation to alleged misconduct by another of its teachers.

On 30^th September 2010 GH e-mailed DC Pain that,

“You may recall that there was another disciplinary investigation going on regarding inappropriate conduct towards female students and that one resulted in dismissal last Monday…”

This prompted DC Pain to enquire about the details surrounding the dismissal in an e-mail in the following terms,

“In relation to the dismissal of another member of staff re inappropriate conduct last week, on reviewing our computer records I am unable to find any recorded incident. Was this dealt with internally and a Lado referral? Is it possible to provide the teaching member of staff’s name and the inappropriate conduct committed, so at least I am aware of that person ion (sic) case he has further involvement with the Police.”

In turn GH replied in an e-mail that,

“….I did wonder whether you had been informed about the other member of staff. HR have been involved all the way through ... The member of staff is [AB]. He was dismissed for gross misconduct in relation to inappropriate behaviour and comments towards female students. He was already on a 12 month warning for a similar ‘offence’.”

As a result of receiving this information DC Pain placed a copy of the e-mail exchange on the defendant’s record management system under reference no.44100214994, and may have informed the relevant Local Authority Designated Officer (“LADO”) about it, albeit this appears to have been a person who, according to the college’s last e-mail, was already aware of it.

In June 2013 DC Pain again visited the college and was informed that AB was now working at a girls’ school. This was confirmed in an e-mail dated 6^th June 2013 from KL, the college’s assistant head teacher, to DC Pain in the following terms,

“… I can confirm that the gentleman we spoke about recently is on the current staffing list on the website of [IJ] School’…”

DC Pain initially sought advice about what, if anything, to do about the recent information from his supervisor, DS Aston, who in turn advised that he should take advice from the defendant’s central referral unit, so that they could share this information with the LADO responsible for the school.

On 10^th June 2013 DC Pain sought that advice in an e-mail to PS Bennett, the training co-ordinator within the defendant’s central public protection department, in the following terms,

“Advice required or need a hand to pass this in the right channels…to the LADO …

The background is [AB] age 41, was a teacher … He was dismissed from [CD] High and then [the college] a couple of yrs ago…the police were never involved but the Lado/HT of [the college] informed me [AB] was sacked due to touching pupils and getting them to touch him…he never came to Police attention and I placed a working sheet on RMS 44100214994, Which you also placed CRU input on…

Now I have heard on Friday (I was off) Back this morning...that [AB]...is working at [IJ] School!!!!!! Can the LADO … be updated asap and for them to possibly liaise with HT [GH] or DHT [KL] from [the college]…

From What I’ve been told he should be nowhere near female students. I will put an intel report in on [AB].”

It is appropriate to interrupt the chronology at this point in order to interpolate a matter of concern, namely that there is no evidence that the claimant was either dismissed from CD High School, or that the reason that he had been dismissed from the college, was either for touching pupils or getting them to touch him. It is suggested by DC Pain, in somewhat opaque terms in paragraph 3 of his witness statement dated 2^nd October 2014, that [GH] had made reference to inappropriate touching in the course of their meeting in September 2010. However, not only is this somewhat difficult to reconcile with the query raised by DC Pain, in his e-mail to her in September 2010, as to the nature of the inappropriate conduct involved, but it is expressly denied in a letter from [GH] dated 8^th September 2014. As [GH] was directly involved in the claimant’s disciplinary proceedings at the time, she would have been aware that the nature of the misconduct was limited to that which was found to have been established in those proceedings.

The only contemporaneous note, which has been provided by DC Pain, in relation to the details of the misconduct is an entry in one of his police notebooks dated 13^th October 2010 in these terms,

“Further info – Re [AB] having erection in front of school children.”

The date of that note would be consistent with DC Pain making a direct enquiry to the college as to the details of the rather general description of the claimant’s misconduct, namely “inappropriate behaviour”, of which he had been informed in the earlier e-mail from [GH] in September of 2010. Moreover, if DC Pain had been informed that the “inappropriate behaviour” had included, “…touching pupils and getting them to touch him…”, then as, on the face of it, this would be likely to have involved the commission of criminal offences by the claimant, regardless of whether there had been any official complaint by any of the pupils, it would be anticipated that the defendant would have commenced its own investigation into the claimant’s activities at the college.

In the event the advice provided by PS Bennett to DC Pain was contained in an e-mail dated 10^th June 2013, to the effect that DC Pain should liaise directly about the matter with the relevant LADO,

“Can I ask that you liaise directly with her, as there is a safeguarding issue here.

I totally agree that an Intel log would be suitable as this is not a referral, and then it’s over to the LADO to take wherever action she deems appropriate as he is not and RSO or of other interest to us on RMS.”

On the same day DC Pain contacted the relevant LADO, MN, by e-mail,

“Please see e mail correspondence relating to a male called [AB], I have been informed he is a teacher at [IJ] School. There were issues for him as a teacher ... and was dismissed for inappropriate touching of students although Police were not involved. I ran this past CRU and asked if I contact you direct.”

Later on the same day MN replied by e-mail to DC Pain informing him that she would sort out a strategy meeting. Unfortunately there is no evidence from MN about what, if anything, she did with this information. The evidence from DC Pain is that he understood from GH that she had attended a strategy meeting at which both the LADO and the school’s head teacher were present, albeit once again this is contradicted by GH in her letter dated 8^th September 2014, who states that no-one from the college was present at any such meeting. It would appear from the witness statement of Simon Pettet, the claimant’s union representative, dated 2^nd February 2015, that a strategy group meeting did take place and that the school was represented at that meeting, however there is no mention of any attendance by GH.

As a result of the information which was provided at that meeting, the school appears to have had an initial meeting with the claimant, following which the school wrote to the claimant on 20^th June 2013 in the following terms,

“Following our meeting on Tuesday I can confirm the following allegations received in school namely;

That you have acted inappropriately towards pupils in previous employment

On your application to this school you have not declared sufficient information regarding your previous employment

I would like to invite you to a meeting at 1.30 on Wednesday 26^th …

This is a meeting which forms part of the Managing Allegations of Abuse procedure, a copy of which you have been provided with. The meeting will determine the appropriate way forward in full consideration of the facts available at that time including the possibility of suspension or an alternative measure.

...”

At that meeting the claimant was informed that a decision had been made by the school to suspend him, pending an investigation into the matter. Subsequently however, it was agreed between the claimant and the school that, in lieu of a full investigation with the possibility of a disciplinary hearing, the claimant would resign his post as from 31^st August 2013, and the school would provide him with an agreed reference for the purposes of his future employment.

It is once again appropriate to interrupt the chronology at this stage to observe that, although the letter from the school dated 20^th June 2013 describes the claimant’s alleged misconduct in rather general terms, such that it could be interpreted that the only information which MN had passed onto the school was that which had been contained in the earlier e-mails placed on the defendant’s record management system, it would appear from a subsequent e-mail sent by Mr Pettet to the defendant, dated 28^th January 2014, that at least part, if not the whole, of the inaccurate information contained in DC Pain’s e-mail dated 10^th June 2014 had also been provided to the school,

“Information has been passed on that [AB] was dismissed from his previous school for inappropriate touching of pupils and that in the officer’s view he is not suitable to work with young women.”

Although the agreement between the claimant and the school was put into effect, the claimant was concerned to know the source of the information which had been provided to the school.

It would appear that at a relatively early stage, prior to 26^th July 2013, Mr Pettet had suggested to the claimant that he should make a “data access request” to both the school and the defendant in order to discover the source of the information. On 26^th July 2013 the claimant asked Mr Pettet to assist him in making such a request. Mr Pettet appears to have made an informal approach to the school about the matter in August 2013. However it was not until 16^th October 2013 that the claimant made a subject access request under s.7 of the Data Protection Act 1998 (“the DPA 1998”) to the school. This appears to have elicited a relatively prompt response, as by 7^th December 2013 the claimant had received a file of documents from the school which disclosed that, whilst MN was the immediate source of the information provided to the school, she had obtained her information from one of the defendant’s officers. On 15^th January 2014, MN disclosed that the identity of this officer was DC Pain.

On 28^th January 2014 Mr Pettet e-mailed a “Notice of Complaint” on behalf of the claimant to the defendant’s professional standards department. The e-mail set out a brief history of the handling of the information concerning the claimant, and suggested that “DC Pain had acted outside of the standard procedures.” It requested “…some clarity on the events in this case.”

Although the e-mail had not identified that the complaint was made under the provisions of the Police Reform Act 2002, it appears that the defendant treated it as one, and identified it as a matter which was suitable for local resolution. The complaint was initially investigated by DI Tutton who was provided with the results of the investigations carried out by both the ISA and the GTC.

On 5^th March 2014 DI Tutton sent a written response to Mr Pettet in which he observed, that DC Pain had been in receipt of information from a senior staff member at a school on the Isle of Wight, and that he had sought advice concerning it from PS Bennett. He concluded that,

“Having discussed the actions of DC Pain with the officer and PS Bennett, I am satisfied that they were appropriate in the circumstances and in accordance with the legal duty placed upon partner agencies to share information under the Childrens (sic) Act 2004/Working together to safeguard children 2006.

As im (sic) you will appreciate, once the Police are in receipt of such information, the overarching obligation must be towards the safeguarding of children and for the sharing of information with the relevant partner agencies.

Having considered the content of the GTC and ISA reports, my view is that whilst they find in favour of [AB], they do not affect the outcome in respect of the actions of DC Pain in this matter”

Later the same day, Mr Pettet e-mailed DI Tutton querying three matters: the identity of the source of the inaccurate information concerning CD High School; whether the information would be disclosed in the future; and why the defendant did not “follow the ‘formal’ reporting procedures available to them on the new enhanced DBS disclosure certificate?”

E-mail correspondence followed in which DI Tutton stated that it would be inappropriate to disclose the identity of the source of the information concerning CD High School, and that any decision as to the future disclosure of the information would have to be assessed on the basis of the risks involved at the relevant time. In so far as the handling of the information in accordance with the Disclosure and Barring Service (“DBS”) policy and procedures, DI Tutton stated that,

“To clarify the position in respect of the DBS enhanced disclosure question you have raised, the position in respect of this matter is that by following the quality assurance framework guidelines, it was not deemed relevant to make a disclosure on this occasion due to no specific criminal offences being disclosed or alleged to Hampshire Constabulary.”

On 21^st March 2014 Detective Superintendent Smith of the defendant’s professional standards department wrote to Mr Pettet, that it had been determined that, inter alia,

“…

no persons (sic) performance is unsatisfactory

the Appropriate Authority proposes to take no further action in respect of matters subject to report.

...”

On 16^th April 2014 Mr Pettet sent a notice of appeal against the decision to the defendant, and on 2^nd May 2014 DCI Heelan, the independent appeals officer in the defendant’s professional standards department notified Mr Pettet in writing of his decision to dismiss the appeal. In doing so he stated that,

“DI Tutton was satisfied that DC Pain acted in accordance with the legal duty placed upon partner agencies to share information under the Children’s Act 2004 and Working Together to Safeguard Children Act (sic) 2006.

I am in agreement with DI Tutton’s conclusions and I do not believe any further investigation is warranted or necessary.”

On 29^th May 2014 Mr Pettet wrote to the defendant expressing his concern about the dismissal of the appeal, and in particular with the inaccuracy of the information relating to CD High School and the nature of the claimant’s sexual misconduct at the college.

On 7^th July 2014 DCI Dawson, who was by then the independent appeal officer in the defendant’s professional standards department, replied in the following terms,

“...

I have appraised myself in this case and contacted the officer concerned, DC Pain. He has supplied me with details of the information he obtained and the e-mail string which proved the advice he sought and the actions he then took. The information was provided by the Head-teacher of [the college], [GH] and her assistant [KL]. It is clear from an e-mail dated 10^th June 2013 from DC Pain to PS Bennett of the Central Referral Unit that the information supplied to DC Pain was that [AB] had been dismissed from [CD] High School and [the college] as a result of ‘touching’ pupils and ‘getting pupils to touch him’ and that police had not been involved in the matter. DC Pain also told PS Bennett that he had been told from (sic) [KL] that [AB] was on the current staff list on the website of [IJ] School and DC Pain asked PS Bennett to pass this information to the LADO (Local Authority Designated Officer) …, for obvious child protection reasons.

PS Bennett advised DC Pain to liaise directly with the … LADO, [MN], on the basis that there was a clear safeguarding issue and the police were not involved in any specific referral. DC Pain passed to the LADO exactly the information he had received. He did not attend the LADO meeting himself but he was informed that representatives of [the college] did. It is not known why the Head-teacher of [the college] did not pass the information directly to the LADO herself.

It appears to me that disclosure was not made by the officer direct to [AB’s] employer but disclosure was made by the officer to LADO in accordance with the legal duty placed upon partner agencies to share information under the Children’s (sic) Act 2004 and ‘Working Together to Safeguard Children’, 2006.

I accept that [AB] is stating that he was not dismissed from [CD] High School and that his dismissal from [the college] was not due to the touching of pupils. If the police have passed incorrect information to the … LADO then I of course apologise to [AB] on behalf of Hampshire Constabulary and I uphold his complaint.

However, I am satisfied that DC Pain received the information in good faith, sought advice for the duty sergeant at the Central Referral Unit and complied with the instruction from PS Bennett by passing on exactly the same information to the … LADO. I am also satisfied that there was a clear safeguarding issue and that DC Pain was right in his actions. I would have expected the … LADO to carry out the necessary background checks to verify the information, as she would have been in a much better place to do so than my officer.

Following an assessment by the Force’s Disclosure and Barring Service Unit (DBS) using their quality assurance framework, they have not made a disclosure of the incident. The DBS Unit have processed a number of DBS checks for [AB] since 2000, all resulting in no disclosures being made. The last check the Unit processed for [AB] was on 3^rd June 2014 and the following rationale was recorded in relation to the non disclosure decision:

Information relates to an allegation of Child Abuse. I believe that it would be disproportionate to disclose this information because there were no criminal offences or allegations reported. The information was deemed suitable to be dealt with by the school and Social Services with little involvement from Hampshire Police. There are no other incidents of the same nature recorded and therefore in the circumstances I do not feel a disclosure would be justified.

The DBS Manager has reviewed the RMS occurrence again on my behalf and stands by her decision.

…”

On 23^rd July 2014 the claimant commenced judicial review proceedings against the defendant challenging the legality of DC Pain’s disclosure of information concerning the claimant’s dismissal from the college to MN, and in turn the lawfulness of the decision to dismiss the claimant’s appeal on 2^nd May 2014.

In his grounds it is pointed out that in MM v United Kingdom , app no 24029/07, the European Court of Human Rights concluded that the retention and disclosure of data regarding a caution was an interference with an individual’s rights under Article 8 of the ECHR. Moreover, that once there is such an interference it is for the public authority concerned to show ( Quila v Secretary of State [2011] 3 WLR 44) that; the interference is in accordance with the law ( Gillan v United Kingdom (2010) 50 EHRR 45); it is necessary in a democratic society ( R (Daly) v Secretary of State [2001] 2 AC 532); and that a fair balance has been struck between the relevant competing rights ( Huang v Secretary of State [2007] 2 AC 167).

It is submitted that the information disclosed by DC Pain involved an interference with the claimant’s Article 8 rights, and the defendant is unable to establish any of the above mentioned matters, such that the original decision to disclose the information to MN was unlawful, as in turn was the defendant’s decision to dismiss his complaint.

It is submitted that there is no necessary statutory authority for the disclosure, a matter which Parliament has recognised is required by having established the statutory scheme in relation to criminal records under the Police Act 1997, which does not apply to the disclosure made by DC Pain. Moreover, neither the Children Act 2004, nor the statutory guidance provided in “Working Together to Safeguard Children”, justifies the disclosure.

Alternatively it is submitted that the decision taken by DC Pain fails to comply with the procedural obligations imposed by Article 8 ( Tysiac v Poland (2007) EHRR 42), and having regard to the circumstances, including the conclusions reached by the ISA, the GTC and the DBA unit, the decision to disclose was disproportionate.

Although the claimant recognised that the application for judicial review of the original decision is out of time, it is submitted that the application in relation to the defendant’s decision to dismiss the subsequent complaint is in time, and that as the latter is based upon the legality of the former, it is appropriate for time to be extended in this case.

In the summary grounds for contesting the claim, the defendant acknowledges that the disclosure involved an interference with the claimant’s Article 8 rights, however it submits that there was legal authority for the decision, which was taken in accordance with a fair procedure, and that the circumstances were such that the decision was proportionate to the competing factors which the defendant was obliged to take into account.

In this regard the defendant submits that the Children Act 2004 obliged it to share relevant information with its partners, in accordance with the statutory guidance provided by Working Together to Safeguard Children. Moreover, the decision was taken within the statutory framework provided by the Human Rights Act 1998 and the DPA 1998. The defendant points out that the rights contained in Article 8 are not absolute, albeit that any interference with them by a public authority is subject to what is necessary in a democratic society for the prevention of crime and the protection of other individuals’ health, rights and freedoms. Moreover, the DPA 1998 provides clear criteria for the retention and dissemination of data, within a structured framework which is subject to both administrative and judicial control.

It is submitted that the decision by DC Pain to disclose the information to MN was both lawful and proportionate given the fact that he had been made aware of the claimant’s further employment at a girls’ school on the mainland. Moreover, the procedure which was followed by DC Pain did not require any prior consultation with the claimant in order to render it lawful.

In any event, it is submitted that the application for judicial review is not only out of time, but is inappropriate and targeted at the wrong public body. In this regard it is submitted that an application under s.10 and 13 of the DPA 1998 would have provided an appropriate alternative remedy for the claimant, and that as it was MN who disclosed the information to the school, any proceedings should have been directed at her.

The defendant also submits that the dismissal of the claimant’s complaint on appeal does not disclose any error susceptible to public law challenge.

As the European Court of Human Rights made clear in MM v United Kingdom , app no 24029/07, the retention and disclosure of information relating to an individual by a public authority engages the individual’s Article 8 rights. Accordingly the court held that,

“191.

In order to be justified under Article 8.2 of the Convention, any interference must be in accordance with the law, pursue one of the listed legitimate aims and be necessary in a democratic society.

...

193.

The requirement that any interference must be ‘in accordance with the law’ under Article 8.2 means that the impugned measure must have some basis in domestic law and be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise…”

The decision related to the retention and disclosure of information by the Northern Ireland Police to the applicant’s prospective employer concerning a previously administered caution. At the relevant time, although both the DPA 1998 and the Human Rights Act 1998 applied, the Police Act 1997 was not yet in force in Northern Ireland, and the 2012 Statutory Disclosure Guidance had not been provided. Against that background the court held that there had been a violation of the applicant’s Article 8 rights.

“206.

In the present case, the court highlights the absence of a clear legislative framework for the collection and storage of data, and the lack of clarity as to the scope, extent and restrictions of the common law powers of the police to retain and disclose caution data...

207.

The cumulative effect of these shortcomings is that the Court is not satisfied that there were, and are, sufficient safeguards in the system for the retention and disclosure of criminal record data to ensure that data relating to the applicant’s private life have not been, and will not be, disclosed in violation of her right to respect for her private life…”

In Tysiac v Poland (2007) 45 EHRR 42, the European Court of Human Rights, in a different context, stressed the importance of the need for procedural safeguards to protect individuals’ Article 8 rights from unlawful interference by public bodies.

“115.

Finally, the Court reiterates that in the assessment of the present case it should be borne in mind that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. Whilst Article 8 contains no explicit procedural requirements, it is important for the effective enjoyment of the rights guaranteed by this provision that the relevant decision-making process is fair and such as to afford due respect to the interests safeguarded by it. What has to be determined is whether, having regard to the particular circumstances for the case and notably the nature of the decisions to be taken, an individual has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide her or him with the requisite protection of their interests.”

In R v Chief Constable of North Wales Ex. Parte Thorpe [1999] QB 396, which was concerned with the disclosure of information concerning details of convictions and other information, some of which the police knew to be inaccurate, relating to two individuals who had been convicted of serious sexual offences against a number of children, Lord Woolf in his conclusions observed that,

“…it must be remembered that the decision to which the police have to come as to whether or not to disclose the identity of paedophiles to members of the public, is a highly sensitive one. Disclosure should only be made when there is a pressing need for that disclosure. Before reaching their decision as to whether to disclose the police require as much information as can reasonably practicably be obtained in the circumstances. In the majority of the situations which can be anticipated, it will be obvious that the subject of the possible disclosure will often be in the best position to provide information which will be valuable when assessing the risk. In this case the gist of what Detective Sergeant Lewis had learnt about the applicants should have been disclosed to them. At least consideration should have been given as to whether to disclose the report from the Northumbria Police. This did not happen and we were not made aware of any reason why there could not have been disclosure. The applicants might have had information which would have caused the detective sergeant to reassess the degree of risk. Appalling thought their record is, their past offending had been confined to children with their family and a friend of one of their children. As to the problem caused by the closeness of the Easter holidays, we do feel that if Detective Sergeant Lewis had appreciated the importance of giving the applicants an opportunity to comment at least on the gist of the information he had received, the time constraints under which he was acting would not have made it impracticable to disclose to the applicants what he had learnt. Having said that, bearing in mind that the probation officers were aware of the inaccuracies in the information which had been provided by the Northumbria Police but were still of the opinion that the applicants created a high degree of risk, we do not accept that any information which the applicants could have given, if they had been given the opportunity to comment, would have altered the outcome.”

In R (L) v Commissioner of Police for the Metropolis [2010] 1 AC 410, the Supreme Court was obliged to consider the provisions of the Police Act 1997 in the context of the disclosure of non-conviction information on an enhanced criminal record certificate to an individual’s prospective employer. It held that the disclosure of such information engaged an individual’s Article 8 rights, and that in addition to considerations of relevancy, due regard must be had to the justification of any interference with those rights. Lord Hope stated that,

“42.

So the issue is essentially one of proportionality. On the one hand there is a pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the applicant’s right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place …

...

45.

The correct approach, as in other cases where competing convention rights are in issue, is that neither consideration has precedence over the other: Campbell v MGN Ltd [2004] 2 AC 457, para 12, per Lord Nicholls of Birkenhead ...”

Lord Neuberger of Abbotsbury MR went on to say that,

“81.

Having decided that information might be relevant under section 115(7)(a), the chief officer then has to decide under section 115(7)(b) whether it ought to be included, and, in making that decision, there will often be a number of different, sometimes competing, factors to weigh up. Examples of factors which could often be relevant are the gravity of the material, the reliability of the information on which it is based, whether the applicant has had a chance to rebut the information, the relevance of the material to the particular job application, the period that has elapsed since the relevant events have occurred, and the impact on the applicant of including the material in the ECRC, both in terms of her prospects of obtaining the post in question and more generally. In many cases, other factors may also come into play, and in other cases, it may be unnecessary or inappropriate to consider one or more of the factors I have mentioned. Thus material may be so obviously reliable, relevant and grave as to be disclosable however detrimental the consequential effect on the applicant.

82.

In a nutshell, as Lord Hope has said, the issue is essentially one of proportionality. In some, indeed possibly many, cases where the chief officer is minded to include material in an ECRC on the basis that he inclines to the view that it satisfies section 115(7)(b), he would, in my view, be obliged to contact the applicant to seek her views, and take what she says into account, before reaching a final conclusion. Otherwise, in such cases, the applicant’s article 8 rights will not have been properly protected. Again, it is impossible to be prescriptive as to when that would be required. However, I would have thought that, where the chief officer is not satisfied that the applicant has had a fair opportunity to answer any allegation involved in the material concerned, where he is doubtful as to its potential relevance to the post for which the applicant has applied, or where the information is historical or vague, it would often, indeed perhaps normally, be wrong to include it in an ECRC without first giving the applicant an opportunity to say why it should not be included.

In R (T) v Chief Constable of Greater Manchester Police & others [2015] AC 49, the Supreme Court considered the disclosure of convictions and cautions under the Police Act 1997 which at the time provided for the disclosure of all convictions, bind overs and cautions. This was held to be incompatible with the applicants’ Article 8 rights. In the course of their judgments, Lord Wilson said,

“The Secretaries of State say, second, that the regime reflected a conclusion by Parliament that it was preferable to make the prospective employer or other registered person the judge of the relevance of the disclosure decision. Rely on him (they say) to sift the wheat from the chaff. But will he do so? In these days of keen competition and defensive decision-making will the candidate with the clean record not be placed ahead of the other, however apparently irrelevant his offence and even if otherwise evenly matched? More fundamentally, the regime reflects exception to the eradication of the offence under the 1974 Act and it is the fact, or even the potentiality, of disclosure, whatever its ultimate consequences, which causes the interference and for the person creates, as a minimum, embarrassment, uncertainty and anxiety.”

Lord Reed said,

“114…in order for the interference to be ‘in accordance with the law’, there must be safeguards which have the effect of enabling the proportionality of the interference to be adequately examined. Whether the interference in a given case was in fact proportionate is a separate question.

115.

The criticism that the court in MM did not allow for any margin of appreciation is therefore misplaced. Whether a system provides adequate safeguards against arbitrary treatment, and is therefore ‘in accordance with the law’ within the meaning of the Convention, is not a question of proportionality, and is therefore not a matter in relation to which the court allows national authorities a margin of appreciation.”

In R (Catt) v ACPO [2015] 2 WLR 664 the Supreme Court was concerned with the question of whether the retention by the police of non-conviction information concerning an individual was “in accordance with the law” as required under Article 8. The Court held that it was. Lord Sumption said,

“7.

At common law the police have the power to obtain and store information for policing purposes, i. e. broadly speaking for the maintenance of public order and the prevention and detection of crime ...

8.

The exercise of these powers is subject to an intensive regime of statutory and administrative regulation. The principal element of this regime is the Data Protection Act 1998 …

9.

These provisions are supplemented in the case of the police by published administrative codes ...

...

11.

The requirement of article 8.2 that any interference with a person’s right to respect for private life should be ‘in accordance with the law’ is a precondition of any attempt to justify it. Its purpose is not limited to requiring an ascertainable legal basis for the interference as a matter of domestic law. It also ensures that the law is not so wide or indefinite as to permit interference with the right on an arbitrary or abusive basis. In R (Gillan) v Comr of Police of the Metropolis [2006] 2 AC 307, para 34, Lord Bingham of Cornhill observed that ‘the lawfulness requirement in the Convention addresses supremely important features of the rule of law’:

‘The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. That is what, in this context, is meant by arbitrariness, which is the antithesis of legality.’

In the context of the retention by the police of cellular samples, DNA profiles and fingerprints, the Grand Chamber observed in S v United Kingdom 48 EHRR 1169, para 99, that there must be:

‘clear, detailed rules governing the scope and application of measures, as well as minimum safeguards concerning, inter alia, duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for its destruction, thus providing sufficient guarantees against the risk of abuse and arbitrariness.’

For this purpose, the rules need not be statutory, provided that they operate within a framework of law and that there are effective means of enforcing them. Their application, including the manner in which any discretion will be exercised, should be reasonably predictable, if necessary with the assistance of expert advice. But except perhaps in the simplest cases, this does not mean that the law has to codify the answers to every possible issue which may arise. It is enough that it lays down principles which are capable of being predictably applied to any situation.

12.

The Data Protection Act 1998 is a statute of general application. It is not specifically directed to data obtained or stored by the police. But it lays down principles which are germane and directly applicable to police information, and contains a framework for their enforcement on the police and others through the Information Commissioner and the courts. It deals directly in section 29 and in paragraph 5 of Schedule 2 with the application of the principles to law enforcement. The data protection principles themselves constitute a comprehensive code of corresponding to the requirements of the EU Directive and the Convention. The effect of the first principle, read in conjunction with the requirements of Schedule 2, is that data cannot be obtained, recorded, held or used by the police unless it is necessary for them to do so for the purpose of the administration of justice or the performance of their other functions. The fifth principle prevents the retention of data for any longer than is necessary for this purpose. These principles are supplemented by a statutory Code of Conduct and administrative guidance compliance with which is mandatory. The relevant functions of the police are limited to policing functions which are clearly and narrowly defined in paragraph 2.2 of the statutory Code of Practice.

13.

There are discretionary elements in the statutory scheme as there must inevitably be, given the great variety of circumstances that may give rise to allegations that personal data have been improperly processed. But their ambit is limited. In the first place, the Code of Practice governing police information is an administrative document whose contents are determined by police organisations subject to approval of the Home Secretary. It leaves room for discretionary judgment by the police within specified limits, notably in the area of the duration of retention. But the Code and the guidance issued under it are subordinate instruments which are subject to the data protection principles. Neither the Information Commissioner nor the courts are bound or indeed entitled to apply them in a manner inconsistent with those principles. Secondly, the Commissioner has a discretion whether to take action. He need not, for example necessarily issue an enforcement notice in a trivial case or one in which the Contravention has caused no appreciable damage or distress. But he is bound to enforce the Act, and his performance (or non-performance) of his functions is subject to judicial review in the ordinary way.

...

17.

In my opinion, the retention of data in police information systems in the United Kingdom is in accordance with law …”

The issue of proportionality in the context of the police’s disclosure of non-conviction material in an enhanced criminal records certificate was also considered by the Court of Appeal in R (A) v Chief Constable of Kent [2013] EWCA Civ 1706. As Beatson LJ recognised in the course of his judgment,

“1 …The effect of disclosing such information is often, in practice the end of any opportunity for the individual to be employed in an area for which an ECRC is required. Balancing the risks of non-disclosure to the interests of the members of the vulnerable group against the right of the individual concerned to respect for his or her private life is a particularly sensitive and difficult exercise where the allegations have not been substantiated and are strongly denied.”

He also noted that subsequent to the decision in R (L) v Commissioner of Police for the Metropolis , the Home Office had issued guidance under s.113B(4A) of the Police Act 1997 to assist chief officers of police in,

“making appropriate, proportionate and consistent decisions in providing information from local police records for inclusion in enhanced criminal record certificates (ECRCs)”,

which contained a number of principles setting out the need for decision-makers to consider issues of relevancy, necessity, proportionality and consistency.

However the court also provided valuable guidance as to the approach which any court should take in relation to the review of the decision- making process in such cases, and the issue of proportionality. It is apparent that whilst a high-intensity review of the decision is required, in that the court must make its own assessment of the factors considered by the decision-maker, the court must not conduct a “merits review.” Moreover, that the evaluation of proportionality must be made by reference to the material which was available at the time, and the court should not generally consider other material which could not have been available to the decision-maker at the time of making the decision. Appropriate weight should be given to the conclusions of the decision-maker, on the basis that the person has been entrusted with the task as a result of their access to special sources of information. Although a decision should not be found to be disproportionate because the decision-maker did not follow a formal structure of reasoning, such that it is the substance rather than the form which is important, Beatson LJ did go on to observe, that in a case in which it was difficult to disentangle substance from form,

“52 ...Whilst I respectfully agree fully with the deprecation of requiring ‘formulaic incantations’ of the considerations to be taken into account, some concern with process may assist not only in determining whether a decision is wrong but by providing guidance to the primary decision-maker in future cases and in achieving a better quality of decision ...”

Part V of the Police Act 1997 makes provision for the issue of certificates about criminal records. Under section 113B

“(1)

The Secretary of State [DBS] must issue an enhanced criminal record certificate to any individual who -

(a)

makes an application …, and

(aa) is aged 16 or over at the time of making the application

(b)

pays in the prescribed manner any prescribed fee

(2)

The application must

(a)

be countersigned by a registered person, and

(b)

be accompanied by a statement by the registered person that the certificate is required [for the purposes of an exempted question asked] for a prescribed purpose.

…

(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 sub section (4), or

(b)

states that there is no such matter or information (or states that there is no such matter or information), and

(b)

if the applicant is subject to notification requirements under Part 2 of the Sexual Offences Act 2003 (c 42), states that fact.

(4)

Before issuing an enhanced criminal record certificate the Secretary of State (DBS) must request any relevant chief officer 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.

…”

The Home Office has issued Statutory Disclosure Guidance for those responsible for issuing, interalia, enhanced criminal records certificates. The guidance being issued under section 113B (4A) of the Police Act 1997 which provides

“In exercising functions under subsection (4) a relevant chief officer must have regard to any guidance for the time being published by the Secretary of State”.

Every piece of information should be assessed on its own individual merits. Information should not be included (or excluded) simply because it is of a certain type.”

The word ‘relevant’ should be given its natural meaning … Information must only be provided if the chief officer reasonably believes it to be relevant … Forming a reasonable belief that information is relevant is a higher hurdle than merely considering that it might be or could possibly be relevant. The most important factors which should be taken into account in considering relevancy are as follows. However, this is not an exhaustive list and other factors may come into play in individual cases.

Chief officers should address the purpose in considering issues of relevancy. What may be relevant to an application connected with caring for children or vulnerable adults may not be relevant where the application is, say, seeking a licence under gaming legislation …

There are no hard or fast rules to apply in this area, but chief officers should consider whether a specific piece of information is of sufficient gravity to justify its inclusion. It will be disproportionate to disclose information if it is trivial, or simply demonstrates poor behaviour, or relates merely to an individual’s lifestyle.

There is some relationship here to the purpose for which the certificate is being sought. A relatively minor piece of intelligence with a clear relationship to that purpose might reasonably be viewed as relevant, while something more serious with no such relationship might not. In some cases it might be reasonable to view information linked to an isolated incident or allegation less seriously than information linked to a sequence …

This will always be a matter of judgement, but the starting point will be to consider whether the information is from a credible source. Chief officers should consider whether there are any specific circumstances that lead them to consider that information is unlikely to be true or whether the information is so without substance that it is unlikely to be true. In particular, allegations should not be included without taking reasonable steps to ascertain whether they are more likely than not to be true.

Having formed what they regard as a reasonable belief that the information is relevant, the chief officer must then consider whether it ought to be included in the certificate. There are two key areas to be considered under this heading, as set out below.

The words ‘ought to be included’ should be read and given effect in a way which is compatible with the applicant’s right to respect for their private and family life under Article 8 of the European Convention on Human Rights … Therefore chief officers must ensure that the disclosure of such information is justified in every case.

Firstly this requires establishing whether there is a legitimate aim pursued by the disclosure; this might be the legitimate aim of crime prevention and/or the protection of the rights and freedoms of others and/or ensuring public safety. Every case should be evaluated on its own facts.

If there is a legitimate aim pursued, the next step is to consider whether the disclosure of the information is necessary to pursue that aim including consideration of whether there are any other realistic and practical options to pursue that aim. If disclosure is considered necessary to pursue that aim then the question becomes one of proportionality. In practice this will involve weighing factors underpinning relevancy, such as seriousness, currency and credibility against any potential interference with privacy. All decisions must be proportionate. This means that the decision is no more than necessary to achieve the legitimate aim and that it strikes a fair balance between the rights of the applicant and the rights of those the disclosure is intended to protect. It is therefore essential that the reasoning in reaching a decision is fully and accurately recorded in each case.

In any case where a chief officer is minded to provide information for inclusion in a certificate or is uncertain whether to do so, they should consider whether the applicant should be offered the opportunity to make representations before the information is submitted. Some of the factors relevant to this consideration are: …

The Police Act 1997 (Criminal Records) Regulations 2002 provides under Regulation 5A Enhanced Criminal Records Certificates: prescribed purposes

“The purposes for which an enhanced criminal record certificate may be required in accordance with a statement made by a registered person under section 113B(2)(b) of the Act are prescribed as follows, namely the purposes of -

(a)

considering the applicant’s suitability in the circumstances set out in Regulation 5C.

….”

Regulation 5C provides for the circumstances referred to in Regulation 5A(a) for working with children.

The Data Protection Act 1998 provides at section 1(1) that,

“‘processing’ in relation to information or data means obtaining, recording or holding the information or data or carrying out any operation or set of operations or set of operations on the information or data, including -

…

(c)

‘disclosure of the information or data …

…”

Under section 4(4)

“Subject to section 27(1), it shall be the duty of a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller.”

Part 4 at IV sets out the exemptions from the statutory principles.

Section 27(1) provides

“References in any of the data protection principles or any provision of parts II and III to personal data or to the processing of personal data do not include references to data or processing which by virtue of this Part are exempt from that principle or other provision.

…”

By section 29(1)

“Personal data processed for any of the following purposes -

(a)

the prevention or detection of crime

…

are exempt from the first data protection principle (except to the extent to which it requires compliance with the conditions in Schedules 2 and 3) and section 7 in any case to the extent to which the application of those provisions to the data would be likely to prejudice any of the matters mentioned in this subsection.

…

(3)

Personal data are exempt from the non-disclosure provisions in any case in which -

(a)

the disclosure is for any of the purposes mentioned in sub section (1), and

(b)

the application of those provisions in relation to the disclosure would be likely to prejudice any of the matters mentioned in that subsection”.

The Act provides for those rights of individuals vis a vis the data controller including section 7 rights of access to personal data, under section 10 the right to prevent processing likely to cause damage or distress under section 13 compensation for failure to comply with certain requirements. At section 14 the rectification blocking erasure and destruction of data. These matters and others being enforceable by way of complaint to the Information Commissioner and or by action in court.

Schedule 1 Part 1 sets out the relevant data protection principles. At paragraph 1

“Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless –

(a). at least one of the conditions in Schedule 2 is met, and

…”

…

Paragraph 4

“Personal data shall be accurate and, where necessary, kept up to date”.

Paragraph 6 provides

“Personal data shall be processed in accordance with the rights of data subjects under this Act”.

By Schedule 2 of the Act paragraph 5

“The processing is necessary -

…

(d)

for the exercise of any functions of a public nature exercised in the public interest by any person”.

Section 10 of the Children Act 2004 provides that

“(1)

Each local authority in England must make arrangements to promote co-operation between -

(a)

the authority

(b)

each of the authority’s relevant partners; and

(c)

such other persons or bodies as the authority consider appropriate …”

“Working Together to Safeguard Children” is the current statutory guidance provided under section 11(4) of the Children Act 2004. It provides at paragraph 6

“This guidance aims to help professionals understand what they need to do, and what they can expect of one another, to safeguard children. … In doing so, it seeks to emphasise that effective safeguarding systems are those where:

…

all professionals share appropriate information in a timely way and can discuss any concerns about an individual child with colleagues and local authority children’s social care;

Paragraph 13 “Effective safeguarding systems are child-centred”

“Failings in safeguarding systems are too often the result of losing sight of the needs and views of the children within them, or placing the interests of adults ahead of the needs of children.”

Under Chapter 2 paragraph 4 …

“county level and unitary local authorities should have a Local Authority Designated Officer (LADO) to be involved in the management and oversight of individual cases. The LADO should provide advice and guidance to employers and voluntary organisations, liaising with the police and other agencies and monitoring the progress of cases to ensure that they are dealt with as quickly as possible, consistent with a thorough and fair process;

any allegation should be reported immediately to a senior manager within the organisation. The LADO should also be informed within one working day of all allegations that come to an employer’s attention or that are made directly to the police; and

…”

Under paragraph 14

“… In addition to identifying when a child may be a victim of a crime, police officers should be aware of the effect of other incidents which might pose safeguarding risks to children and where officers should pay particular attention.

…”

Paragraph 15 provides

“The police can hold important information about children who may be suffering, or likely to suffer, significant harm, as well as those who cause such harm. They should always share this information with other organisations where this is necessary to protect children …”

The Police Reform Act 2002 at section 12 sub-section 1 provides

“In this part references to a complaint are references (subject to the following provisions of this section) to any complaint about the conduct of a person serving with the police which is made (whether in writing or otherwise) by -

(a)

a member of the public who claims to be the person in relation to whom the conduct took place;

…

(d)

a person acting on behalf of a person falling within any of paragraphs (a) to (c)”.