R (on the application of W) v Chief Constable of Northumbria (2009) EWCH 747

The Claimant (‘W’) challenged the decision by the Chief Constable to disclose to W’s employer a spent conviction of a sexual assault against a young boy which had taken place in 1987 and the fact that W had again been arrested in 2001, though no prosecution had resulted, after his stepson had alleged that he had abused both him and his daughter who was aged 4 at the time. His daughter later, in 2007, also made an allegation that he had abused her and as a result of these allegations the Local Authority began care proceedings. During the course of these proceedings the Local Authority alerted the police that they were concerned that in the course of his employment (as a delivery man of household goods) W might deliver to private homes and therefore come into contact with children. The police interviewed W who refused to answer questions or consent to the disclosure of his arrest to his employer. The Chief Constable took the view however that disclosure was necessary and, with the support of the Local Authority, notified his employer. W was subsequently sacked from his job. Later the Crown Prosecution Services made the decision not to prosecute W in respect of the allegations made by his daughter in 2007, however a finding of fact was made in the care proceedings that he had carried out the abuse for a number of years. W challenged the decision by the Chief Constable to inform his employer as illegal on the basis that the conviction was spent, they had not first ascertained whether it was likely that he would come into contact with children during the course of his employment, they had not made enquiries regarding the likelihood of him being charged with an offence following the allegations in 2007 and further that the test of ‘pressing need’ was not met.

The Court confirmed that under s.4(3)(b) of the Rehabilitation of Offender Act 1974 the conviction for the sexual assault was spent and therefore the Police were not required to disclose this. Furthermore regard had to be given to the Home Office circular which advised that spent convictions should only be disclosed if covered by the terms of the Rehabilitation of Offender (Exceptions) Order 1975, so that if the Chief Constable decided to disregard this advice, clear reasons for doing so must be given. The Court concluded that because the 1975 Order did not apply in this case, and there was no evidence that the Chief Constable had taken the advice within the circular into account, he should not have disclosed the earlier conviction.

The Court did however find that the Police had not acted unfairly in respect of the disclosure of the 2007 allegations. They taken steps to ascertain his contact with children, but his refusal to answer questions meant he had not been treated unfairly. Furthermore there was no obligation on the police to confirm with the CPS whether they intended to prosecute. The Chief Constable had taken into account the factors that lead the CPS to determine that they would not prosecute but had not believed that those issues would mean that no prosecution could result. The Court also commented that the findings of fact in the care proceedings, although they apply a lower burden of proof than is applied in criminal proceedings, indicated that the allegations were not weak. As such the Chief Constable was entitled to conclude that the test of pressing need was met and notify his employer, not least in order to verify W’s statement that he was not left alone with children during the course of his employment and to ascertain the information necessary to properly evaluate W’s risk of offending. Finally the Court commented that the Police were expert in assessing such risk and that it was right that their opinion was given proper weight. The fact that the Local Authority had endorsed this disclosure was also considered relevant to whether the disclosure was lawful.

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