R (on the application of L) v Chief Constable of Kent (2014) QBD Admin

The claimant (“L”) was one of nine siblings.  His father had been convicted of sexually abusing L’s brother and had been imprisoned and his name placed on the sex offenders register.  The children were consequently removed from the home.  L’s sister then made allegations of sexual abuse against L and allegations of abuse against an uncle by marriage.  Due to the unreliability of the evidence not guilty verdicts were returned.  The uncle pleaded guilty to some of the charges.

L had volunteered for work at a church which would involve him having access to children and vulnerable adults.  He applied for an Enhanced Criminal Record Certificate.  Section 113B(4) of the Police Act 1997 required the chief constable to provide any information which in their opinion might be relevant and ought to be included in the certificate.

L was asked to make representations on the information that was held.  L stated that the trial judge had stopped the trial as he could not be sure that the convictions would be safe.  L’s sister had admitted that she had been lying.  The medical evidence showed that she was a virgin and the disclosure of the evidence had not been proportionate.  However, the chief constable found that the information should still be disclosed as L’s father could have access to children through L.  The fact that L’s father had also confessed to indecently assaulting L’s sister also raised concern about L working with children.  A fresh review was made and some changes were made to the certificate but L was unhappy about this and claimed judicial review of the decision.

L sought and order quashing the Enhanced Criminal Record Certificate; an injunction preventing disclosure of the disputed information; an order requiring the correction of certain inaccuracies on the police database and damages.  He also submitted that the decision to disclose the disputed information was Wednesbury unreasonable.

The court held that in considering whether information should be included in an Enhanced Criminal Record Certificate there had to be compliance with article 8 of the European Convention on Human Rights 1950.  The chief constable in this case had to consider whether there was likely to be an interference with an applicant’s private life, and if so whether that interference could be justified.  There is the need to protect children and vulnerable adults.  But there are also the article 8 rights of the applicant.  The issue is proportionality.

It was stated that the issues that might come into consideration included the gravity of the information involved, the reliability of the information, whether the applicant has had a chance to rebut the information, the relevance of the information to the particular job application, the period of time that had elapsed since the relevant events occurred and the impact on the applicant of including the information in the Enhanced Criminal Record Certificate.  It was held that in some cases the information had to be disclosed no matter how detrimental it would be to the applicant.

It was held that the information about L did not raise significant concerns about him working with children.  This situation may have been different if there had been a full trial.  However, the trial had been stopped by the trial judge after the prosecution had stated its case on the basis of the medical evidence and because the evidence was wholly unreliable.  The decisions complained of were unlawful and had to be quashed.

Whilst the court understood L’s concerns, it was not necessary to grant an injunction to avoid repetition of the information.  The police would have the instant judgement in mind if L wanted to apply for another Enhanced Criminal Record Certificate.

Mrs Justice Andrews stated in her judgement that: “As for the correction of the record, I have already indicated that that would be a desirable outcome, but that it is not something which I should order the Defendant to do. I understand that L is concerned that there is a risk, albeit a very small one, that if he were to be the subject of allegations of a similar nature in the future, going back historically to the period concerned, and there is no correction he may face double jeopardy. He explained this is because he would not be able to prove, at least without producing further material, that the “new” allegation was a repetition of something of which he has already been acquitted.  In my judgment, the chances of that happening are remote. Prosecuting authorities will not normally bring charges in relation to matters which have already been before the court unless there is compelling fresh evidence. Therefore I do not consider that there is such a risk to justice as to warrant making orders as to the minute examination of dates, and corrections of the record. But as I have said, insofar as the police authority now has some information available that would enable it to correct the dates, it is desirable that that should be done just to meet that risk, however small it may be.”

The court stated that obtaining damages was rare as it was difficult to measure in financial terms the damage to reputation. The fair thing was to reflect it in terms of the costs so that L was compensated in those terms and would not be out of pocket.  The court held that an order for costs in addition to quashing the order was enough for just satisfaction.  There was no question of bad faith on the part of the chief constable, nor had his approach been flawed from the beginning.

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