R: and Another v Chief Constable of South Yorkshire Police (First Defendant) Disclosure and Banning Service (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Coulson |
| Judgment Date | 10 June 2013 |
| Neutral Citation | [2013] EWHC 1555 (Admin) |
| Docket Number | Case No: 3SE90085 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 June 2013 |
[2013] EWHC 1555 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
SHEFFIELD DISTRICT REGISTRY
The Law Courts
50, West Bar, Sheffield
The Honourable Mr. Justice Coulson
Case No: 3SE90085
and
Mr Alex Offer (instructed by Lester Morrill inc Davies Gore Lomax Solicitors) for the Claimant
Mr Simon Pallo (instructed by South Yorkshire Police) for the First Defendant
The Second Defendant was not present or represented at the hearing
Hearing date: 20 May 2013
Approved Judgment
INTRODUCTION
This case represents a further stage in the long and unhappy dispute between the claimant and South Yorkshire Police ("SYP") in connection with the latter's proposed disclosure to prospective employers of information relating to events allegedly involving the claimant that occurred almost ten years ago. Casting a long shadow across this case is an issue of wider significance: in what circumstances is it appropriate for the police to disclose to prospective employers details of allegations in respect of which the prospective employee was tried and acquitted?
The claimant and SYP have already been through one set of Judicial Review proceedings. When, in early April 2013, the claimant saw the revamped draft disclosure that SYP proposed to make about him, he applied for and was granted an injunction on the papers. At a hearing on 11 April I continued the injunction. Following the grant of legal aid to the claimant on 29 April, the case came before me again on 9 May. In order to address the real issues in the shortest possible time, with the parties' consent, I transferred this case to the Administrative Court, ordered the necessary Perfected Grounds and Reply to be exchanged, and fixed a 'rolled up' hearing for 20 May. The matter was argued in full on that occasion, and I am extremely grateful to both counsel for their helpful submissions.
Because of its importance, I set out a brief chronology in Section 2 below. In Section 3 I deal with the relevant principles of law. In Section 4 I set out the issues and then, in Sections 5 to 8 I address each of those issues. My conclusions are set out in Section 9 below.
BRIEF CHRONOLOGY
The claimant was a teacher at a school in Sheffield. In 2005 he was the subject of six allegations, made by four girls at the school aged around 15, of indecent assault and sexual activity with a child. The allegations were all of a similar nature, involving brief instances of the tapping or touching of the girls' bottoms. In addition to problems connected with the credibility of the complainants, there were also concerns about collusion, and a suggestion that the girls had acted together to revenge a male pupil whom the claimant had got expelled a few weeks before.
The defendant denied all of the charges and was consistent in his detailed responses to the allegations made. At a trial at Sheffield Crown Court on 5 October 2005, the claimant was acquitted on all charges. However, the following month, in November 2005, SYP disclosed material (which related to the trial) which caused the claimant to lose his volunteer job with the Red Cross, and his post with the local Neighbourhood Watch.
In May 2006, the claimant was dismissed from his job as a teacher. Unhappily it remains unclear precisely why he was dismissed. There is a suggestion in the proposed disclosure that one of the reasons was his use of inappropriate language in front of the pupils but, since the high watermark of that conduct was saying "shut the book up" and his admonition to his pupils not to "chat shit", I cannot believe that this was regarded as appropriate grounds for dismissal. The other ground for dismissal identified in the documents was his apparent contact with pupils outside school hours, although the claimant appeared to have a number of innocent explanations for this conduct (such as giving pupils lifts to football matches). Although the claimant appealed against his dismissal, his appeal failed.
In 2008, the Department for Children, Schools and Families considered whether or not he should be barred from working with children or vulnerable adults. In a letter dated 10 September 2008, the Secretary of State decided that he should neither be barred nor restricted for carrying on such work. In addition, the General Teaching Council took no action against him and he was not removed from the register of teachers.
On 9 June 2009, SYP provided the claimant with a draft of the disclosure that they proposed to make in connection with any application that they received for information about him. This disclosure set out a good deal of material about the allegations in respect of which the claimant was acquitted. Accordingly, in October 2010 the claimant issued judicial review proceedings. In the end, the case was compromised by agreement but plainly represented something of a victory for the claimant (who was awarded some of his costs). Eady J ordered that SYP had to decide afresh what, if any, information to disclose. Moreover, attached to the order was a detailed memorandum which dealt, not only with SYP's obligation to consider the claimant's Article 8 rights, and to consult with him in advance of any disclosure, but which also included detailed guidance as to how to deal with the allegations of which the claimant had been acquitted. Paragraph 3 of the memorandum attached to Eady J's order said:
"If the defendant decides to disclose any information about the allegations made against the claimant by four female pupils at [name of school] in or around May 2004, he shall also disclose information about the claimant's defence to those allegations and shall endeavour to produce a fair and balanced account. Such material shall include:
(1) The fact that the claimant denied the allegations and that his account has been consistent throughout.
(2) The fact that there were a number of inconsistencies in the prosecution evidence.
(3) The fact that it was the claimant's case, which as left to the jury, that the prosecution witnesses had colluded to punish the claimant for the expulsion of a fellow pupil.
(4) The fact that the claimant was acquitted by a jury of all charges in October 2005."
On 21 March 2012, SYP wrote to the claimant to say that, having considered his request afresh, they had decided that the material held "is, at this time, still relevant to your working in regular contact with children under 18 years of age…we repeat that this is the disclosure that would be made, at this point in time, in respect of a position involving children." The claimant complained about his treatment by SYP and, in consequence, Hampshire Constabulary were invited to review SYP's disclosure.
The report of Hampshire Constabulary, dated 3 August 2012, was critical of SYP's approach for a number of reasons. The summary of their findings were set out in these terms:
"In our opinion, disclosure of information held on [the claimant] could not be considered to be wholly unreasonable; however, in this instance, the supporting audit trail rationales, the wording of the disclosure itself, were found to not reach the standard required.
It is our opinion that, should [the claimant] apply again for an ECRC, working in similar field, and the same/similar disclosure text and supporting rationale be used, [the claimant] will resort again to legal action and the audit trail would not reflect well upon SYP."
One of the principal criticisms made by Hampshire Constabulary was that SYP treated the allegations as if they had been proved, rather than rejected.
In December 2012, the claimant made a fresh application for disclosure of the draft Enhanced Criminal Records Certificate ("ECRC"), which SYP would provide to a prospective employer. They sent their proposed draft on 28 February 2013 and sought the claimant's representations. He replied on 13 March 2013 and set out in detail his response to the points raised. Following that, SYP went through their decision-making process, which was recorded in the AT3 document (see paragraphs 18 and 19 below). Amongst other things, box 6 of the AT3 said:
"Although found Not Guilty of the Sexual allegations at court I still believe that there is enough substance to the allegations to warrant disclosure as I do not believe that there were so many inconsistencies or collusion by all concerned in this case to make me believe the information to be so untrue that it cannot be substantiated…"
Further, in the chief officer's declaration, the writer referred to the claimant's "offences" and concluded:
"I am also of the opinion that something did occur here due to the gaps in instances and also one of the females not being friendly with the others also making allegations therefore making me believe that she did not collude with the others in this case."
On 2 April 2013, SYP sent the claimant the final version of the proposed ECRC. Amongst other things, that said:
"The information relates to unprofessional conduct and sexual offences against female students who attended his science lessons.
South Yorkshire Police believe this information to be relevant to an employer's risk and suitability assessment when considering [the claimant's] application for Supply Teacher working in regular contact with Children and Vulnerable Adults because the evidence available indicates that he has clearly overstepped the boundaries of teacher child relationship by acting inappropriately in his position and...
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