R (on the application of BW) v INDEPENDENT MONITOR (2015)

R (on the application of BW) v INDEPENDENT MONITOR (2015)

Keywords: Human Rights, DBS
It was held that it was proportionate and justifiable for an enhanced criminal record certificate to include information regarding an alleged sexual assault notwithstanding the individual’s subsequent acquittal and the impact of the disclosure on the individual. The grounds were the gravity and credibility of the underlying information and the relatively recent nature of the disclosed incident.

The 19 year old applicant had applied for an ECRC in order to study education at University. Aged 15, he had been acquitted of sexual assault. However he had admitted the facts of the incident, which were that he had arranged via Facebook to meet a 13 year old girl from his school, tied her wrists and ankles with rope, gagged her, and allegedly tickled her bottom. His facebook messages to her included enquiring whether she was “bendy”. He denied any sexual purpose, describing the incident as an unplanned prank that went too far.

The ECRC disclosed information about the incident under “other relevant information” (Police Act 1997 s.113B(4). The applicant contended that the decision to disclose the information was unlawful on the grounds of (1) irrationality with respect to the finding of relevance; (2) disproportionateness in breach of his Article 8 rights.

The three factors to be considered in determining relevance are the credibility, seriousness and currency of the information. The respondent had judged the information to be credible and accurate. In coming to that conclusion the respondent had taken into account the applicants’ admission of the facts and, additionally, had made a rational determination to reject the applicants’ explanation of his motive, deciding on the evidence of the Facebook messages that the incident had been planned and was not a prank. The respondent’s decision that the incident was sufficiently serious to justify disclosure was similarly rational. Whilst the physical actions of the applicant were towards the low end of the scale of sexual offences, sexual offences generally were not towards the least serious end of potential information considered for disclosure under the s.113B regime. On the issue of currency, it was not irrational to consider that an incident four years previously was sufficiently recent to be relevant. Therefore it was held that the decision that the information was sufficiently relevant to warrant disclosure was not irrational.

The issue of whether the disclosure was proportionate was more nuanced but based on similar factors.  Reliability and gravity had already been determined sufficiently to satisfy the requirements for proportionality. The issue of the lapse of time required further evaluation to take into account the applicant’s youth at the time of the incident. The difference in decision making between a 15-year-old and an older adult, especially in relation to sexual matters, should properly be taken into account. The span of four years which had passed was a more significant time for a 19 year old than for a more mature adult. In the court’s view, the respondent had not properly considered these issues or the impact on the applicant. Nevertheless four years was not a sufficient span of time to entirely refute concerns as to the applicant’s future behaviour following a worrying and unusual incident that he had never satisfactorily explained. Therefore the decision to disclose was proportionate.

Comment: Unfortunately for decision makers the judgement doesn’t specify a particular period which would be considered a sufficient span of time to refute concerns regarding future behaviour. Such decisions will continue to depend on the interaction between complex factors in individual cases, but this case does illustrate that a decision to disclose information can be proportionate in relation to an individual’s article 8 rights in the absence of a conviction where a decision has been carefully weighed and is evidence based.

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