R (Pinnington) v Chief Constable of Thames Valley Police
| Jurisdiction | England & Wales |
| Judgment Date | 31 July 2008 |
| Date | 31 July 2008 |
| Court | High Court |
Court and Reference: Administrative Court, CO/9310/2007
: Richards LJ and Keith J
Appearances: T Griffiths QC (instructed by Chris Saltrese) for P; J Beer (instructed by The Solicitor to the Thames Valley Police) for the Chief Constable
: Whether the Assistant Chief Constable had been entitled to consider allegations of sexual abuse made by autistic men by means of facilitated communication which had not led to criminal charges being brought as sufficiently relevant to be included on an enhanced criminal record certificate
: Allegations had been made that P had subjected 3 autistic young men to serious sexual abuse. The allegations were made to a large extent by the use of "facilitated communication", ie by communication through supported pointing at objects, pictures, words or letters, a form of communication which had been held to be potentially unreliable. In each case, a police investigation led to a decision that no action should be taken against P.
In 2005, the college for young autistic adults at which P was the deputy principal came to be administered by a national charity which had a policy of requiring employees to possess a "clean" enhanced criminal record certificate. P applied to the Criminal Records Bureau for an ECRC. The Assistant Chief Constable dealing with the application decided that the allegations of serious sexual abuse against autistic young adult males that had been made against P were relevant and so should be detailed on the ECRC: this resulted in P's dismissal from employment.
P challenged the decision of the Assistant Chief Constable, contending that none of the allegations should have been disclosed as they were not relevant because they lacked cogency and credibility and, on a properly objective and informed assessment, no-one could reasonably have believed that any of them might be true. Alternatively, he contended that if disclosure was necessary, it should have been limited in its scope and its relevance ought to have been properly explained to the employer, which was not done.
1. This claim for judicial review concerns the issue of an enhanced criminal record certificate (to which I will refer simply as a "certificate") pursuant to s. 115 of the Police Act 1997. In 2005 the claimant was the deputy principal of a college for young autistic adults in Oxfordshire. Following a reorganisation at work, his employment was to be transferred to a national charity which had a policy of requiring employees to possess a "clean" certificate. The claimant applied to the Criminal Records Bureau ("the CRB") for a certificate, but the certificate issued to him recorded details of 3 allegations which had been made against him. This resulted in his dismissal from employment. Leaving aside the issues raised by the 3 allegations, he was and is of good character.
2. The claim form identifies the certificate as the subject of the challenge, but the true target is the decision by the police to provide the information which was included in the certificate. That decision was taken by Mr Francis Habgood, Assistant Chief Constable of the Thames Valley Police, to whom the relevant function had been delegated by the Chief Constable. Thus it is the Chief Constable, not the CRB, who is named as a defendant to the claim.
Statutory framework
3. Section 115 of the 1997 Act provides in subs(1) that the Secretary of State shall issue an enhanced criminal record certificate to any individual who makes an application in the prescribed form, countersigned by a registered person, and who pays the relevant fee. The functions of the Secretary of State under the legislation are discharged by the CRB.
4. By subs(2), an application must be accompanied by a statement by a registered person (in this case the employer) that the certificate is required for the purposes of an "exempted question" asked, so far as relevant, "in the course of considering the applicant's suitability for a position within subs(3) or (4)". An "exempted question" is defined in s. 113 as a question in relation to which s. 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974has been excluded by an order made by the Secretary of State. Section 4(2) of the 1974 concerns non-disclosure of information about spent convictions or circumstances ancillary thereto. The certificate in this case was required for an exempted question.
5. A position is within subs(3) if it involves regularly caring for, training, supervising or being in sole charge of persons aged under 18. A position is within subs(4) if it is of a kind specified in regulations made by the Secretary of State and it involves regularly caring for, training, supervising or being in sole charge of persons aged 18 or over. The claimant's position at the college fell within subs(4).
6. Subsections (6) to (8) provide as follows:
"(6) An enhanced criminal record certificate is a certificate which -
(a) gives -
(i) the prescribed details of every relevant matter relating to the applicant which is recorded in central records, and
(ii) any information provided in accordance with subs(7), or
(b) states that there is no such matter or information.
(7) Before issuing an enhanced criminal record certificate the Secretary of State shall request the chief officer of every relevant police force to provide any information which, in the chief officer's opinion -
(a) might be relevant for the purpose described in the statement under subs(2), and
(b) ought to be included in the certificate.
(8) The Secretary of State shall also request the chief officer of every relevant police force to provide any information which, in the chief officer's opinion -
(a) might be relevant for the purpose described in the statement under subs(2),
(b) ought not to be included in the certificate, in the interests of the prevention or detection of crime, and
(c) can, without harming those interests, be disclosed to the registered person."
7. The information in this case was provided under subs(7). I have quoted subs(8) only because it is touched on incidentally later in this judgment.
8. Section 117 provides that where an applicant for a certificate believes that the information contained in the certificate is inaccurate he may make an application in writing to the Secretary of State for a new certificate; and where the Secretary of State is of the opinion that the information in the certificate is inaccurate he shall issue a new certificate. It was held in R (B) v Secretary of State for the Home Department [2008] Police Law Reports 11 that the duty of the Secretary of State under that section is to determine the accuracy of the fact that allegations have been made, not to consider whether any allegations made have any foundation. On that construction, the section has no application to the present case, and it is not suggested by the defendant that recourse to the Secretary of State under the section provided an appropriate alternative remedy.
9. Guidance on the operation of the relevant provisions is contained in Home Office Circular 5/2005, Criminal Records Bureau: Local Checks by Police Forces for the Purpose of Enhanced Disclosures. I shall need to refer to a part of the guidance when considering the claimant's case.
10. The legislative scheme and policy were considered by the Court of Appeal in R (X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65, [2005] Police Law Reports 24.Lord Woolf CJ, giving the leading judgment, noted the following significant aspects of the scheme (at para 18):
"(i) The whole process of obtaining an ECRC is initiated by the person to whom the certificate will relate. The certificate is for his purposes to enable him to obtain employment which, at least in practical terms, will not be available to him unless he obtains a certificate.
(ii) The certificate will only be seen by the applicant and his prospective employer.
(iii) The applicant has the opportunity to persuade the Secretary of State to correct the certificate.
(iv) The Chief Constable is under a duty to provide the information referred to in s. 115(7). This is subject to the requirement that the information might be relevant and ought to be included in the certificate. What might be relevant and what ought to be included is a matter for the opinion of the Chief Constable.
(v) The applicant is in a position to provide additional information if he wishes, whether in conflict with the certificate or not, to the prospective employer and it is the prospective employer who will make the decision as to whether he should or should not be employed."
11. At para 36 Lord Woolf stressed that there is no presumption against disclosure by the Chief Constable. He said that having regard to the language of s. 115 "the Chief Constable was under a duty to disclose if the information might be relevant, unless there was some good reason for not making such a disclosure". He went on to say in para 37:
"This was obviously required by Parliament because it was important (for the protection of children and vulnerable adults) that the information should be disclosed even if it only might be true. If it might be true, the person who was proposing to employ the claimant should be entitled to take it into account before the decision was made as to whether or not to employ the claimant. This was the policy of the legislation in order to serve a pressing social need " (emphasis added).
12. Lord Woolf considered the statutory scheme to be compatible with Art 8 ECHR, but accepted that Art 8 might still have a role to play in relation to the individual disclosure decision by the Chief Constable. He expressed the point in this way (para 41):
"As already indicated, the Chief Constable starts off with the advantage that his statutory role is not in conflict with Art 8, because the statute meets the...
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