R (S) v Chief Constable of West Mercia Constabulary [Administrative Court]

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
Judgment Date18 November 2008
Date18 November 2008
Neutral Citation:

[2008] EWHC 2811 (Admin)

Court:

Administrative Court, CO/8596/06

Judges:

Wyn Williams J

R (S)
and
Chief Constable of West Mercia Constabulary
Appearances:

P Prescott QC (instructed by Beech Jones De Lloyd) for S; G Kent (instructed by Head of Legal Services of the Defendant) for the Chief Constable

Issue:

Whether it had been irrational to include on an enhanced criminal record certificate details of offences which had resulted in acquittals and in respect of which the criminal court had found that the defendant could not have been the offender

Facts:

In March 2004, S was arrested and charged with 11 counts of outraging public decency; he was prosecuted for 5 offences contrary to the Public Order Act 1986. The allegations were of jogging around an area in Birmingham without his shorts; several reports were given by different witnesses; S denied the allegations, though admitted jogging in the area regularly. S was found not guilty on all counts, on the basis of mistaken identity. There were various factors exonerating S, and the magistrates concluded that he could not have been the perpetrator.

In 2006 S applied for a position as a rugby coach and sought an Enhanced Criminal Record Certificate ("ECRC"). The Chief Constable prepared an ECRC which included information about the offences for which S had been acquitted, which the Secretary of State issued. When he received it, S complained that the ECRC was inaccurate in that it should not have contained this information. However, the Chief Constable confirmed that the information was properly included upon the ECRC.

S issued a claim for judicial review seeking declaratory relief to the effect that the information contained in the ECRC had been provided unlawfully by the Chief Constable to the Secretary of State. The Deputy Chief Constable ("DCC") reconsidered the certificate and, after giving S an opportunity to make representations (which was not taken up) the DCC provided a draft new certificate. It contained the same information, but with much greater detail, because the DCC had formed the opinion based on his own appraisal of the material that S may have been the person involved in the alleged unlawful activity notwithstanding his acquittal.

S complained that no information about the alleged offences and his acquittal should be included upon an ECRC but that, in the alternative, the proposed contents of the certificate were so inaccurate as to be seriously misleading in light of his exoneration; he contended that it was unreasonable for the Chief Constable to conclude that he might be guilty of the offences as charged. He also argued that even if the DCC had been entitled to conclude that the allegations might be true, this was not an appropriate case in which to give disclosure in respect of a request made by a would-be coach of rugby union team even if those teams consisted of or included young boys.

Judgment:

1. The Claimant is now aged 49. As a younger man he played rugby union as an amateur but to a high competitive level. For some years preceding 2006 he involved himself in various training and support roles with his local rugby club.

2. In 2006 he decided to re-apply for a position as a coach at his club. As coach, the Claimant would be an employee of the club and, as I understand it, the Rules of the Rugby Football Union required that he apply to the Interested Party for an Enhanced Criminal Record Certificate (hereinafter referred to as "ECRC"). In summary, and ECRC provides not only information about convictions or cautions recorded against a person but also, in some circumstances, gives information about allegations which have been made against him.

3. The Claimant made an application for ECRC on or about 5 March 2006. He did not anticipate receiving anything other than a certificate which stated that he had no criminal convictions or cautions whatsoever.

4. On 17 July 2006 the Interested Party issued an ECRC to the Claimant. The document was headed "Strictly Private and Confidential". However it was sent both to the Claimant and to an administrative assistant at the offices of the Rugby Football Union at Twickenham.

5. Under the heading "Police Records and Convictions Cautions Reprimands and Final Warnings the words "None Recorded" appeared. However in a section entitled "Other relevant

information disclosed at the Chief Police Officer(s) discretion West Mercia" the following appeared:-

"On 14 March 2004, Police arrested and charged the Applicant with 11 counts of outraging public decency. The offences were committed between November 2003 and March 2004.

The details surrounding the incident are that the Applicant drives from his home address to the Lickey Hills and jogs around the area minus his shorts, wishing passing females 'good morning' as he runs past them. Various reports from different females were received at different times.

The Applicant was interviewed in relation to the allegations and denied exposing himself, but did admit jogging in the area every Sunday morning.

The allegations were amended to s5 Public Order Offences and the case proceeded to Redditch Magistrates Court on 7 February 2005. The Applicant pleaded Not Guilty to 5 counts of using threatening abusive or insulting words or behaviour within the hearing or sight of a person likely to cause harassment, alarm or distress.

The Applicant was found Not Guilty on all 5 counts."

6. When he received the ECRC the Claimant telephoned the Interested Party to assert that the ECRC was inaccurate. His complaint was that the information contained in the section to which I have referred should not have appeared at all in the certificate. He completed documentation provided to him by the Interested Party which confirmed the basis of his complaint. However despite his complaint in due course the Claimant was informed by the Interested Party that the Defendant had confirmed that their records were accurate and that the information was properly included upon the ECRC.

7. On 18 October 2006 the Claimant issued these proceedings. In the proceedings, as originally formulated, the Claimant sought declaratory relief to the effect that the information contained in the ECRC had been provided unlawfully by the Defendant to the Interested Party.

8. On 13 November 2006 Master Venne made an order at the request of both Claimant and Defendant whereby the proceedings were stayed until 19 February 2007 "to allow the parties the opportunity to seek informal resolution to this issue". In due course a further order was made for a continuation of the stay.

9. On 4 December 2007 the solicitor for the Defendant wrote to the Claimant's solicitors to inform them that "the proper way forward in this matter is for S's application for an Enhanced Criminal Records Certificate to be reconsidered in the light of the all the information now available". The solicitor suggested that she intended to ask the Deputy Chief Constable of the West Mercia Force, DCC Arundale, (hereinafter referred to as "the DCC") to consider the matter afresh and determine whether or not any reference to the Claimant's arrest, trial and subsequent acquittal should be made in the ECRC.

10. The letter identified the information which the DCC would have before him and the letter concluded with these 2 short paragraphs:-

"If you wish to make representations in writing for the DCC to consider when making his decision, I will also place these before him. Perhaps you would also let me know if there is any material which you think he should be in possession of when making his decision.

I look forward to hearing from you and if you wish to make representations, could I please hear from you by 4 January."

11. It is common ground that the Claimant made no representation in response to this letter. However, he did take the following steps. Firstly he invited the court to grant permission for amendments to be made to the grounds of claim; secondly he invited the court to consider the issue of permission.

12. On 25 April 2008 HHJ Mackie QC gave permission to amend and also granted permission to apply for judicial review.

13. The Defendant's response was two-fold. First, he maintained the stance that he had behaved lawfully, by his delegated subordinates, when providing the information contained in the ECRC to the Interested Party for inclusion within the ECRC. Second, he informed the Claimant that the DCC had made a decision on 6 March 2008 to the effect that the information which the police held about the Claimant being charged with and acquitted of offences ought to be disclosed in an ECRC. This information was communicated to the Claimant by a letter to his solicitors; the letter specified the information which the DCC had taken into account in reaching his decision; it also enclosed a statement dated 16 May 2008 made by the DCC which outlined the reasons why he had reached his decision.

14. The other enclosure sent with the letter was a document, in draft, which contained the wording which the Chief Constable proposed to substitute for the words contained on the ECRC.

15. The draft enclosed was considerably longer than the entry on the ECRC. Nonetheless it is necessary to quote it in full. It reads:-

"1. On 7 February 2005 at the Redditch Magistrates Court the Applicant was tried and acquitted of 5 s5 public act order offences.

2. Six different women alleged that they saw a man jogging in the Lickey Hills on dates between November 2003 and 14 March 2004. They alleged that the man was wearing a vest but no shorts and that the man wished them "good morning" as he jogged past.

3. On 14 March 2004 2 of the women saw the Applicant in his silver BMW car in the car park of the Lickey Hills. They took the Applicant's car registration number and told police that the Applicant was the same man they had seen jogging in the Lickey Hills without shorts that morning and on previous occasions. One of...

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