AB, R (On the Application Of) v The Chief Constable of Hampshire Constabulary [2015] EWHC 1238 (Admin)

[2015] EWHC 1238 (Admin)Case No CO/3444/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 May 2015
Before
MR JUSTICE JEREMY BAKER
Between
R (on the application of AB)ClaimantThe Chief Constable of Hampshire ConstabularyDefendant
Mr Hugh Southey QC (instructed by Thompsons) for ClaimantMr Dijen Basu QC (instructed by Hampshire Constabulary) for DefendantHearing Hearing dates: 26 and 27 March 2015
Judgment
[1]This case concerns the lawfulness of the disclosure, by the police to a Local Authority Designated Officer, of non-conviction material relating to alleged sexual misconduct by a teacher, and the subsequent dismissal of a complaint concerning the disclosure under the Police Reform Act 2002.

Chronology of events

[2]AB (“the claimant”) is a 43 year-old qualified teacher who, after holding posts at a number of schools between 2001 and 2007, (including CD High School from which it is understood that he resigned in July 2006 in order to further his career elsewhere), gained a position at EF College (“the college”). He was employed at the college for a period of about 3 ½ years between January 2007 and November 2010, where he taught science to children at Key Stages 2, 3 and 4, eventually becoming the college’s Assistant Director of Science.[3]However, on 13th July 2009 the claimant received a letter from the college’s principal, GH, informing him of her decision to issue him with a first written warning, as a result of her findings, following an earlier disciplinary hearing on 8th July 2009, that his use of Facebook was unacceptable and that he had breached health and safety regulations during a science lesson.[4]On 22nd September 2010 the claimant received a further letter from GH informing him of her decision to summarily dismiss him for gross misconduct, following the findings of an earlier disciplinary hearing on 20th September 2010 that:
“1. You made comments to students which were inappropriate in nature, some of which could be construed as being of a sexual nature. 2. Your conduct in class constituted an inappropriate sexual response. 3. Your conduct in College was at times inappropriate, using humour and jokes inappropriately leading to the discomfort of students. 4. Aspects of your inappropriate conduct are deemed to have taken place whilst you were subject to a 12-months written warning for unacceptable conduct. 5. Your conduct was in contravention of the General Teaching Council (GTC) Code of Conduct for Registered Teachers specifically point 1 on page 8: ‘Establish and maintain appropriate professional boundaries in their relationships with children and young people’, and the Schools’ Disciplinary Policy & Procedure, Appendix A.”
[5]The claimant appealed against the decision to the college’s disciplinary appeals panel, and on 30th November 2010 the claimant received a letter on behalf of the governors of the college confirming the decision of the panel to dismiss the appeal which was made at a hearing on 22nd November 2010. The letter stated that the dismissal was justified for the reasons given within the original disciplinary hearing, but also confirmed the following relating to his three grounds of appeal, “Point 1, the panel decided that on the balance of probability the inappropriate comments of a sexual nature were made to female students by you and you had therefore not ensured that professional boundaries were maintained. The panel believe this breached the GTC code of conduct and constitutes gross professional misconduct; Point 2, on the balance of probability the panel concluded that you did have an erection in the classroom and then used language which was taken by the students to be of a sexual nature. The panel would expect an experienced teacher, as you are, to be aware of the fact that the words used could be construed as sexual terms or innuendo. The panel believes this constitutes gross professional misconduct. Point 3, as confirmed by your union representative, he has been unable to find evidence to support the claim of being subjected to a detriment as a consequence of your trade union activities, and the panel were unable to find any such evidence either. Your appeal was therefore not upheld on any of your 3 grounds of appeal.” Your appeal was therefore not upheld on any of your 3 grounds of appeal.”[6]It would appear that the college and/or the relevant Council notified both the Independent Safeguarding Authority (“ISA”) and the General Teaching Council of England (“GTC”) of the claimant’s dismissal.[7]On 17th March 2011 the ISA wrote to the claimant informing him that, “We have now concluded our enquiries and have carefully considered all the information available to us. On the basis of this information we have decided that it is not appropriate to include you in the Children’s Barred List or the Adults’ Barred List.” At that time the Safeguarding of Vulnerable Groups Act 2006 provided at s.3(3) that, “[ISA] must include the person in the children’s barred list if –(a) it is satisfied that the person has engaged in the relevant conduct, and(b) it appears to [ISA] that it is appropriate to include the person on the list.” By s.4(1) “relevant conduct” was defined as, inter alia, ... (e) conduct of a sexual nature involving a child, if it appears to [ISA] that the conduct is inappropriate. ....” The ISA also confirmed that the GTC would be informed of its decision.[8]On 2nd September 2011 the GTC wrote to the claimant informing him of the decision of a meeting of their investigating committee, following an investigation carried out by Kingsley Napley LLP on their behalf under the Teaching and Higher Education Act 1998, that, “The Committee was not satisfied that there is a real prospect of a Professional Conduct Committee making a finding of unacceptable professional conduct. The Committee was not satisfied that the evidence is sufficient to establish the alleged facts.” At that time, “Unacceptable professional conduct” was defined in the GTC’s Disciplinary Procedure Rules as, “conduct which falls short of the standard expected of a registered teacher within the meaning of paragraph 8(1) of Schedule 2 of the Act and is behaviour which involves a breach of the standards of propriety expected of the profession.” The GTC also confirmed that both the relevant council and the college would be informed of its decision.[9]On 10th November 2011 the claimant was offered, on behalf of its governing body, a teaching position at the IJ school (“the school”), albeit that he was asked to complete and return an “Application For Teaching Appointments” issued by the relevant City Council (“the council”). The claimant completed the form on the same date, and under the heading, “Previous Teaching Experience…….Reason for Leaving” the claimant included the following in relation to his employment at the college, “Dismissal. Decision not ratified by the GTC who found I had no case to answer.”[10]On 16th November 2011 the school offered the claimant the position of teacher of mathematics and science for a fixed term between 1st December 2011 and 31st August 2012, albeit the Statement of Particulars of Terms of Employment stated that his employer was the council. Subsequently in June 2012 the fixed term was extended until 15th April 2013, and it is understood that thereafter the claimant was likely to have been offered a full-time post at the school.

By paragraph 7 of the guidance it is to be understood that

[11]In about September of 2010 DC Pain, a member of the child abuse investigation public protection unit of the Hampshire Constabulary (“the defendant”), had visited the college in relation to the dismissal of another teacher and been informed by GH that there was an ongoing disciplinary hearing in relation to alleged misconduct by another of its teachers.[12]On 30th September 2010 GH e-mailed DC Pain that, “You may recall that there was another disciplinary investigation going on regarding inappropriate conduct towards female students and that one resulted in dismissal last Monday…”[13]This prompted DC Pain to enquire about the details surrounding the dismissal in an e-mail in the following terms, “In relation to the dismissal of another member of staff re inappropriate conduct last week, on reviewing our computer records I am unable to find any recorded incident. Was this dealt with internally and a Lado referral? Is it possible to provide the teaching member of staff’s name and the inappropriate conduct committed, so at least I am aware of that person ion (sic) case he has further involvement with the Police.”[14]In turn GH replied in an e-mail that, “….I did wonder whether you had been informed about the other member of staff. HR have been involved all the way through ... The member of staff is [AB]. He was dismissed for gross misconduct in relation to inappropriate behaviour and comments towards female students. He was already on a 12 month warning for a similar ‘offence’.”

Information should be viewed as sufficiently serious

[15]As a result of receiving this information DC Pain placed a copy of the e-mail exchange on the defendant’s record management system under reference no.44100214994, and may have informed the relevant Local Authority Designated Officer (“LADO”) about it, albeit this appears to have been a person who, according to the college’s last e-mail, was already aware of it.[16]In June 2013 DC Pain again visited the college and was informed that AB was now working at a girls’ school. This was confirmed in an e-mail dated 6th June 2013 from KL, the college’s assistant head teacher, to DC Pain in the following terms, “… I can confirm that the gentleman we spoke about recently is on the current staffing list on the website of [IJ] School’…”[17]DC Pain initially sought advice about what, if anything, to do about the recent information from his supervisor, DS Aston, who in turn advised that he should take advice from the defendant’s central referral unit, so that they could share this information with the LADO responsible for the school.[18]On 10th June 2013 DC Pain sought that advice in an e-mail to PS Bennett, the training co-ordinator within the defendant’s central public protection department, in the following terms, “Advice required or need a hand to pass this in the right channels…to the LADO … The background is [AB] age 41, was a teacher … He was dismissed from [CD] High and then [the college] a couple of yrs ago…the police were never involved but the Lado/HT of [the college] informed me [AB] was sacked due to touching pupils and getting them to touch him…he never came to Police attention and I placed a working sheet on RMS 44100214994, Which you also placed CRU input on… Now I have heard on Friday (I was off) Back this morning...that [AB]...is working at [IJ] School!!!!!! Can the LADO … be updated asap and for them to possibly liaise with HT [GH] or DHT [KL] from [the college]… From What I’ve been told he should be nowhere near female students. I will put an intel report in on [AB].”[19]It is appropriate to interrupt the chronology at this point in order to interpolate a matter of concern, namely that there is no evidence that the claimant was either dismissed from CD High School, or that the reason that he had been dismissed from the college, was either for touching pupils or getting them to touch him. It is suggested by DC Pain, in somewhat opaque terms in paragraph 3 of his witness statement dated 2nd October 2014, that [GH] had made reference to inappropriate touching in the course of their meeting in September 2010. However, not only is this somewhat difficult to reconcile with the query raised by DC Pain, in his e-mail to her in September 2010, as to the nature of the inappropriate conduct involved, but it is expressly denied in a letter from [GH] dated 8th September 2014. As [GH] was directly involved in the claimant’s disciplinary proceedings at the time, she would have been aware that the nature of the misconduct was limited to that which was found to have been established in those proceedings.[20]The only contemporaneous note, which has been provided by DC Pain, in relation to the details of the misconduct is an entry in one of his police notebooks dated 13th October 2010 in these terms, “Further info – Re [AB] having erection in front of school children.” The date of that note would be consistent with DC Pain making a direct enquiry to the college as to the details of the rather general description of the claimant’s misconduct, namely “inappropriate behaviour”, of which he had been informed in the earlier e-mail from [GH] in September of 2010. Moreover, if DC Pain had been informed that the “inappropriate behaviour” had included, “…touching pupils and getting them to touch him…”, then as, on the face of it, this would be likely to have involved the commission of criminal offences by the claimant, regardless of whether there had been any official complaint by any of the pupils, it would be anticipated that the defendant would have commenced its own investigation into the claimant’s activities at the college.[21]In the event the advice provided by PS Bennett to DC Pain was contained in an e-mail dated 10th June 2013, to the effect that DC Pain should liaise directly about the matter with the relevant LADO, “Can I ask that you liaise directly with her, as there is a safeguarding issue here. I totally agree that an Intel log would be suitable as this is not a referral, and then it’s over to the LADO to take wherever action she deems appropriate as he is not and RSO or of other interest to us on RMS.”[22]On the same day DC Pain contacted the relevant LADO, MN, by e-mail, “Please see e mail correspondence relating to a male called [AB], I have been informed he is a teacher at [IJ] School. There were issues for him as a teacher ... and was dismissed for inappropriate touching of students although Police were not involved. I ran this past CRU and asked if I contact you direct.”[23]Later on the same day MN replied by e-mail to DC Pain informing him that she would sort out a strategy meeting. Unfortunately there is no evidence from MN about what, if anything, she did with this information. The evidence from DC Pain is that he understood from GH that she had attended a strategy meeting at which both the LADO and the school’s head teacher were present, albeit once again this is contradicted by GH in her letter dated 8th September 2014, who states that no-one from the college was present at any such meeting. It would appear from the witness statement of Simon Pettet, the claimant’s union representative, dated 2nd February 2015, that a strategy group meeting did take place and that the school was represented at that meeting, however there is no mention of any attendance by GH.[24]As a result of the information which was provided at that meeting, the school appears to have had an initial meeting with the claimant, following which the school wrote to the claimant on 20th June 2013 in the following terms, “Following our meeting on Tuesday I can confirm the following allegations received in school namely; That you have acted inappropriately towards pupils in previous employment On your application to this school you have not declared sufficient information regarding your previous employment I would like to invite you to a meeting at 1.30 on Wednesday 26th … This is a meeting which forms part of the Managing Allegations of Abuse procedure, a copy of which you have been provided with. The meeting will determine the appropriate way forward in full consideration of the facts available at that time including the possibility of suspension or an alternative measure. ...” That you have acted inappropriately towards pupils in previous employment

I would like to invite you to a meeting at 1.30 on Wednesday 26th …

[25]At that meeting the claimant was informed that a decision had been made by the school to suspend him, pending an investigation into the matter. Subsequently however, it was agreed between the claimant and the school that, in lieu of a full investigation with the possibility of a disciplinary hearing, the claimant would resign his post as from 31st August 2013, and the school would provide him with an agreed reference for the purposes of his future employment.[26]It is once again appropriate to interrupt the chronology at this stage to observe that, although the letter from the school dated 20th June 2013 describes the claimant’s alleged misconduct in rather general terms, such that it could be interpreted that the only information which MN had passed onto the school was that which had been contained in the earlier e-mails placed on the defendant’s record management system, it would appear from a subsequent e-mail sent by Mr Pettet to the defendant, dated 28th January 2014, that at least part, if not the whole, of the inaccurate information contained in DC Pain’s e-mail dated 10th June 2014 had also been provided to the school, “Information has been passed on that [AB] was dismissed from his previous school for inappropriate touching of pupils and that in the officer’s view he is not suitable to work with young women.”[27]Although the agreement between the claimant and the school was put into effect, the claimant was concerned to know the source of the information which had been provided to the school.[28]It would appear that at a relatively early stage, prior to 26th July 2013, Mr Pettet had suggested to the claimant that he should make a “data access request” to both the school and the defendant in order to discover the source of the information. On 26th July 2013 the claimant asked Mr Pettet to assist him in making such a request. Mr Pettet appears to have made an informal approach to the school about the matter in August 2013. However it was not until 16th October 2013 that the claimant made a subject access request under s.7 of the Data Protection Act 1998 (“the DPA 1998”) to the school. This appears to have elicited a relatively prompt response, as by 7th December 2013 the claimant had received a file of documents from the school which disclosed that, whilst MN was the immediate source of the information provided to the school, she had obtained her information from one of the defendant’s officers. On 15th January 2014, MN disclosed that the identity of this officer was DC Pain.[29]On 28th January 2014 Mr Pettet e-mailed a “Notice of Complaint” on behalf of the claimant to the defendant’s professional standards department. The e-mail set out a brief history of the handling of the information concerning the claimant, and suggested that “DC Pain had acted outside of the standard procedures.” It requested “…some clarity on the events in this case.”[30]Although the e-mail had not identified that the complaint was made under the provisions of the Police Reform Act 2002, it appears that the defendant treated it as one, and identified it as a matter which was suitable for local resolution. The complaint was initially investigated by DI Tutton who was provided with the results of the investigations carried out by both the ISA and the GTC.[31]On 5th March 2014 DI Tutton sent a written response to Mr Pettet in which he observed, that DC Pain had been in receipt of information from a senior staff member at a school on the Isle of Wight, and that he had sought advice concerning it from PS Bennett. He concluded that, “Having discussed the actions of DC Pain with the officer and PS Bennett, I am satisfied that they were appropriate in the circumstances and in accordance with the legal duty placed upon partner agencies to share information under the Childrens (sic) Act 2004/Working together to safeguard children 2006. As im (sic) you will appreciate, once the Police are in receipt of such information, the overarching obligation must be towards the safeguarding of children and for the sharing of information with the relevant partner agencies. Having considered the content of the GTC and ISA reports, my view is that whilst they find in favour of [AB], they do not affect the outcome in respect of the actions of DC Pain in this matter”[32]Later the same day, Mr Pettet e-mailed DI Tutton querying three matters: the identity of the source of the inaccurate information concerning CD High School; whether the information would be disclosed in the future; and why the defendant did not “follow the ‘formal’ reporting procedures available to them on the new enhanced DBS disclosure certificate?”[33]E-mail correspondence followed in which DI Tutton stated that it would be inappropriate to disclose the identity of the source of the information concerning CD High School, and that any decision as to the future disclosure of the information would have to be assessed on the basis of the risks involved at the relevant time. In so far as the handling of the information in accordance with the Disclosure and Barring Service (“DBS”) policy and procedures, DI Tutton stated that, “To clarify the position in respect of the DBS enhanced disclosure question you have raised, the position in respect of this matter is that by following the quality assurance framework guidelines, it was not deemed relevant to make a disclosure on this occasion due to no specific criminal offences being disclosed or alleged to Hampshire Constabulary.”[34]On 21st March 2014 Detective Superintendent Smith of the defendant’s professional standards department wrote to Mr Pettet, that it had been determined that, inter alia, “… no persons (sic) performance is unsatisfactory the Appropriate Authority proposes to take no further action in respect of matters subject to report. ...”

no persons (sic) performance is unsatisfactory

[35]On 16th April 2014 Mr Pettet sent a notice of appeal against the decision to the defendant, and on 2nd May 2014 DCI Heelan, the independent appeals officer in the defendant’s professional standards department notified Mr Pettet in writing of his decision to dismiss the appeal. In doing so he stated that, “DI Tutton was satisfied that DC Pain acted in accordance with the legal duty placed upon partner agencies to share information under the Children’s Act 2004 and Working Together to Safeguard Children Act (sic) 2006. I am in agreement with DI Tutton’s conclusions and I do not believe any further investigation is warranted or necessary.”[36]On 29th May 2014 Mr Pettet wrote to the defendant expressing his concern about the dismissal of the appeal, and in particular with the inaccuracy of the information relating to CD High School and the nature of the claimant’s sexual misconduct at the college.[37]On 7th July 2014 DCI Dawson, who was by then the independent appeal officer in the defendant’s professional standards department, replied in the following terms, “... I have appraised myself in this case and contacted the officer concerned, DC Pain. He has supplied me with details of the information he obtained and the e-mail string which proved the advice he sought and the actions he then took. The information was provided by the Head-teacher of [the college], [GH] and her assistant [KL]. It is clear from an e-mail dated 10th June 2013 from DC Pain to PS Bennett of the Central Referral Unit that the information supplied to DC Pain was that [AB] had been dismissed from [CD] High School and [the college] as a result of ‘touching’ pupils and ‘getting pupils to touch him’ and that police had not been involved in the matter. DC Pain also told PS Bennett that he had been told from (sic) [KL] that [AB] was on the current staff list on the website of [IJ] School and DC Pain asked PS Bennett to pass this information to the LADO (Local Authority Designated Officer) …, for obvious child protection reasons. PS Bennett advised DC Pain to liaise directly with the … LADO, [MN], on the basis that there was a clear safeguarding issue and the police were not involved in any specific referral. DC Pain passed to the LADO exactly the information he had received. He did not attend the LADO meeting himself but he was informed that representatives of [the college] did. It is not known why the Head-teacher of [the college] did not pass the information directly to the LADO herself. It appears to me that disclosure was not made by the officer direct to [AB’s] employer but disclosure was made by the officer to LADO in accordance with the legal duty placed upon partner agencies to share information under the Children’s (sic) Act 2004 and ‘Working Together to Safeguard Children’, 2006. I accept that [AB] is stating that he was not dismissed from [CD] High School and that his dismissal from [the college] was not due to the touching of pupils. If the police have passed incorrect information to the … LADO then I of course apologise to [AB] on behalf of Hampshire Constabulary and I uphold his complaint. However, I am satisfied that DC Pain received the information in good faith, sought advice for the duty sergeant at the Central Referral Unit and complied with the instruction from PS Bennett by passing on exactly the same information to the … LADO. I am also satisfied that there was a clear safeguarding issue and that DC Pain was right in his actions. I would have expected the … LADO to carry out the necessary background checks to verify the information, as she would have been in a much better place to do so than my officer. Following an assessment by the Force’s Disclosure and Barring Service Unit (DBS) using their quality assurance framework, they have not made a disclosure of the incident. The DBS Unit have processed a number of DBS checks for [AB] since 2000, all resulting in no disclosures being made. The last check the Unit processed for [AB] was on 3rd June 2014 and the following rationale was recorded in relation to the non disclosure decision: Information relates to an allegation of Child Abuse. I believe that it would be disproportionate to disclose this information because there were no criminal offences or allegations reported. The information was deemed suitable to be dealt with by the school and Social Services with little involvement from Hampshire Police. There are no other incidents of the same nature recorded and therefore in the circumstances I do not feel a disclosure would be justified. The DBS Manager has reviewed the RMS occurrence again on my behalf and stands by her decision. …”

Claimant’s submissions

[38]On 23rd July 2014 the claimant commenced judicial review proceedings against the defendant challenging the legality of DC Pain’s disclosure of information concerning the claimant’s dismissal from the college to MN, and in turn the lawfulness of the decision to dismiss the claimant’s appeal on 2nd May 2014.[39]In his grounds it is pointed out that in MM v United Kingdom, app no 24029/07, the European Court of Human Rights concluded that the retention and disclosure of data regarding a caution was an interference with an individual’s rights under Article 8 of the ECHR. Moreover, that once there is such an interference it is for the public authority concerned to show (Quila v Secretary of State[2011] 3 WLR 44) that; the interference is in accordance with the law (Gillan v United Kingdom(2010) 50 EHRR 45); it is necessary in a democratic society (R (Daly) v Secretary of State[2001] 2 AC 532); and that a fair balance has been struck between the relevant competing rights ( Huang v Secretary of State[2007] 2 AC 167).[40]It is submitted that the information disclosed by DC Pain involved an interference with the claimant’s Article 8 rights, and the defendant is unable to establish any of the above mentioned matters, such that the original decision to disclose the information to MN was unlawful, as in turn was the defendant’s decision to dismiss his complaint.[41]It is submitted that there is no necessary statutory authority for the disclosure, a matter which Parliament has recognised is required by having established the statutory scheme in relation to criminal records under the Police Act 1997, which does not apply to the disclosure made by DC Pain. Moreover, neither the Children Act 2004, nor the statutory guidance provided in “Working Together to Safeguard Children”, justifies the disclosure.[42]Alternatively it is submitted that the decision taken by DC Pain fails to comply with the procedural obligations imposed by Article 8 (Tysiac v Poland(2007) EHRR 42), and having regard to the circumstances, including the conclusions reached by the ISA, the GTC and the DBA unit, the decision to disclose was disproportionate.[43]Although the claimant recognised that the application for judicial review of the original decision is out of time, it is submitted that the application in relation to the defendant’s decision to dismiss the subsequent complaint is in time, and that as the latter is based upon the legality of the former, it is appropriate for time to be extended in this case.

Defendant’s submissions

[44]In the summary grounds for contesting the claim, the defendant acknowledges that the disclosure involved an interference with the claimant’s Article 8 rights, however it submits that there was legal authority for the decision, which was taken in accordance with a fair procedure, and that the circumstances were such that the decision was proportionate to the competing factors which the defendant was obliged to take into account.[45]In this regard the defendant submits that the Children Act 2004 obliged it to share relevant information with its partners, in accordance with the statutory guidance provided by Working Together to Safeguard Children. Moreover, the decision was taken within the statutory framework provided by the Human Rights Act 1998 and the DPA 1998. The defendant points out that the rights contained in Article 8 are not absolute, albeit that any interference with them by a public authority is subject to what is necessary in a democratic society for the prevention of crime and the protection of other individuals’ health, rights and freedoms. Moreover, the DPA 1998 provides clear criteria for the retention and dissemination of data, within a structured framework which is subject to both administrative and judicial control.[46]It is submitted that the decision by DC Pain to disclose the information to MN was both lawful and proportionate given the fact that he had been made aware of the claimant’s further employment at a girls’ school on the mainland. Moreover, the procedure which was followed by DC Pain did not require any prior consultation with the claimant in order to render it lawful.[47]In any event, it is submitted that the application for judicial review is not only out of time, but is inappropriate and targeted at the wrong public body. In this regard it is submitted that an application under s.10 and 13 of the DPA 1998 would have provided an appropriate alternative remedy for the claimant, and that as it was MN who disclosed the information to the school, any proceedings should have been directed at her.[48]The defendant also submits that the dismissal of the claimant’s complaint on appeal does not disclose any error susceptible to public law challenge.

Legal principles

[49]As the European Court of Human Rights made clear in MM v United Kingdom, app no 24029/07, the retention and disclosure of information relating to an individual by a public authority engages the individual’s Article 8 rights. Accordingly the court held that, “191. In order to be justified under Article 8.2 of the Convention, any interference must be in accordance with the law, pursue one of the listed legitimate aims and be necessary in a democratic society. ... 193. The requirement that any interference must be ‘in accordance with the law’ under Article 8.2 means that the impugned measure must have some basis in domestic law and be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise…”[50]The decision related to the retention and disclosure of information by the Northern Ireland Police to the applicant’s prospective employer concerning a previously administered caution. At the relevant time, although both the DPA 1998 and the Human Rights Act 1998 applied, the Police Act 1997 was not yet in force in Northern Ireland, and the 2012 Statutory Disclosure Guidance had not been provided. Against that background the court held that there had been a violation of the applicant’s Article 8 rights. “206. In the present case, the court highlights the absence of a clear legislative framework for the collection and storage of data, and the lack of clarity as to the scope, extent and restrictions of the common law powers of the police to retain and disclose caution data... 207. The cumulative effect of these shortcomings is that the Court is not satisfied that there were, and are, sufficient safeguards in the system for the retention and disclosure of criminal record data to ensure that data relating to the applicant’s private life have not been, and will not be, disclosed in violation of her right to respect for her private life…”[51]In Tysiac v Poland(2007) 45 EHRR 42, the European Court of Human Rights, in a different context, stressed the importance of the need for procedural safeguards to protect individuals’ Article 8 rights from unlawful interference by public bodies. “115. Finally, the Court reiterates that in the assessment of the present case it should be borne in mind that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. Whilst Article 8 contains no explicit procedural requirements, it is important for the effective enjoyment of the rights guaranteed by this provision that the relevant decision-making process is fair and such as to afford due respect to the interests safeguarded by it. What has to be determined is whether, having regard to the particular circumstances for the case and notably the nature of the decisions to be taken, an individual has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide her or him with the requisite protection of their interests.”[52]In R v Chief Constable of North Wales Ex. Parte Thorpe[1999] QB 396, which was concerned with the disclosure of information concerning details of convictions and other information, some of which the police knew to be inaccurate, relating to two individuals who had been convicted of serious sexual offences against a number of children, Lord Woolf in his conclusions observed that, “…it must be remembered that the decision to which the police have to come as to whether or not to disclose the identity of paedophiles to members of the public, is a highly sensitive one. Disclosure should only be made when there is a pressing need for that disclosure. Before reaching their decision as to whether to disclose the police require as much information as can reasonably practicably be obtained in the circumstances. In the majority of the situations which can be anticipated, it will be obvious that the subject of the possible disclosure will often be in the best position to provide information which will be valuable when assessing the risk. In this case the gist of what Detective Sergeant Lewis had learnt about the applicants should have been disclosed to them. At least consideration should have been given as to whether to disclose the report from the Northumbria Police. This did not happen and we were not made aware of any reason why there could not have been disclosure. The applicants might have had information which would have caused the detective sergeant to reassess the degree of risk. Appalling thought their record is, their past offending had been confined to children with their family and a friend of one of their children. As to the problem caused by the closeness of the Easter holidays, we do feel that if Detective Sergeant Lewis had appreciated the importance of giving the applicants an opportunity to comment at least on the gist of the information he had received, the time constraints under which he was acting would not have made it impracticable to disclose to the applicants what he had learnt. Having said that, bearing in mind that the probation officers were aware of the inaccuracies in the information which had been provided by the Northumbria Police but were still of the opinion that the applicants created a high degree of risk, we do not accept that any information which the applicants could have given, if they had been given the opportunity to comment, would have altered the outcome.”[53]In R (L) v Commissioner of Police for the Metropolis[2010] 1 AC 410, the Supreme Court was obliged to consider the provisions of the Police Act 1997 in the context of the disclosure of non-conviction information on an enhanced criminal record certificate to an individual’s prospective employer. It held that the disclosure of such information engaged an individual’s Article 8 rights, and that in addition to considerations of relevancy, due regard must be had to the justification of any interference with those rights. Lord Hope stated that, “42. So the issue is essentially one of proportionality. On the one hand there is a pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the applicant’s right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place … ... 45. The correct approach, as in other cases where competing convention rights are in issue, is that neither consideration has precedence over the other: Campbell v MGN Ltd [2004] 2 AC 457, para 12, per Lord Nicholls of Birkenhead ...” Lord Neuberger of Abbotsbury MR went on to say that, “81. Having decided that information might be relevant under section 115(7)(a), the chief officer then has to decide under section 115(7)(b) whether it ought to be included, and, in making that decision, there will often be a number of different, sometimes competing, factors to weigh up. Examples of factors which could often be relevant are the gravity of the material, the reliability of the information on which it is based, whether the applicant has had a chance to rebut the information, the relevance of the material to the particular job application, the period that has elapsed since the relevant events have occurred, and the impact on the applicant of including the material in the ECRC, both in terms of her prospects of obtaining the post in question and more generally. In many cases, other factors may also come into play, and in other cases, it may be unnecessary or inappropriate to consider one or more of the factors I have mentioned. Thus material may be so obviously reliable, relevant and grave as to be disclosable however detrimental the consequential effect on the applicant. 82. In a nutshell, as Lord Hope has said, the issue is essentially one of proportionality. In some, indeed possibly many, cases where the chief officer is minded to include material in an ECRC on the basis that he inclines to the view that it satisfies section 115(7)(b), he would, in my view, be obliged to contact the applicant to seek her views, and take what she says into account, before reaching a final conclusion. Otherwise, in such cases, the applicant’s article 8 rights will not have been properly protected. Again, it is impossible to be prescriptive as to when that would be required. However, I would have thought that, where the chief officer is not satisfied that the applicant has had a fair opportunity to answer any allegation involved in the material concerned, where he is doubtful as to its potential relevance to the post for which the applicant has applied, or where the information is historical or vague, it would often, indeed perhaps normally, be wrong to include it in an ECRC without first giving the applicant an opportunity to say why it should not be included.[54]In R (T) v Chief Constable of Greater Manchester Police & others[2015] AC 49, the Supreme Court considered the disclosure of convictions and cautions under the Police Act 1997 which at the time provided for the disclosure of all convictions, bind overs and cautions. This was held to be incompatible with the applicants’ Article 8 rights. In the course of their judgments, Lord Wilson said, “The Secretaries of State say, second, that the regime reflected a conclusion by Parliament that it was preferable to make the prospective employer or other registered person the judge of the relevance of the disclosure decision. Rely on him (they say) to sift the wheat from the chaff. But will he do so? In these days of keen competition and defensive decision-making will the candidate with the clean record not be placed ahead of the other, however apparently irrelevant his offence and even if otherwise evenly matched? More fundamentally, the regime reflects exception to the eradication of the offence under the 1974 Act and it is the fact, or even the potentiality, of disclosure, whatever its ultimate consequences, which causes the interference and for the person creates, as a minimum, embarrassment, uncertainty and anxiety.” Lord Reed said, “114…in order for the interference to be ‘in accordance with the law’, there must be safeguards which have the effect of enabling the proportionality of the interference to be adequately examined. Whether the interference in a given case was in fact proportionate is a separate question. 115. The criticism that the court in MM did not allow for any margin of appreciation is therefore misplaced. Whether a system provides adequate safeguards against arbitrary treatment, and is therefore ‘in accordance with the law’ within the meaning of the Convention, is not a question of proportionality, and is therefore not a matter in relation to which the court allows national authorities a margin of appreciation.”[55]In R (Catt) v ACPO[2015] 2 WLR 664 the Supreme Court was concerned with the question of whether the retention by the police of non-conviction information concerning an individual was “in accordance with the law” as required under Article 8. The Court held that it was. Lord Sumption said, “7. At common law the police have the power to obtain and store information for policing purposes, i. e. broadly speaking for the maintenance of public order and the prevention and detection of crime ... 8. The exercise of these powers is subject to an intensive regime of statutory and administrative regulation. The principal element of this regime is the Data Protection Act 1998 … 9. These provisions are supplemented in the case of the police by published administrative codes ... ... 11. The requirement of article 8.2 that any interference with a person’s right to respect for private life should be ‘in accordance with the law’ is a precondition of any attempt to justify it. Its purpose is not limited to requiring an ascertainable legal basis for the interference as a matter of domestic law. It also ensures that the law is not so wide or indefinite as to permit interference with the right on an arbitrary or abusive basis. In R (Gillan) v Comr of Police of the Metropolis [2006] 2 AC 307, para 34, Lord Bingham of Cornhill observed that ‘the lawfulness requirement in the Convention addresses supremely important features of the rule of law’:
‘The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. That is what, in this context, is meant by arbitrariness, which is the antithesis of legality.’
In the context of the retention by the police of cellular samples, DNA profiles and fingerprints, the Grand Chamber observed in S v United Kingdom 48 EHRR 1169, para 99, that there must be:
‘clear, detailed rules governing the scope and application of measures, as well as minimum safeguards concerning, inter alia, duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for its destruction, thus providing sufficient guarantees against the risk of abuse and arbitrariness.’
For this purpose, the rules need not be statutory, provided that they operate within a framework of law and that there are effective means of enforcing them. Their application, including the manner in which any discretion will be exercised, should be reasonably predictable, if necessary with the assistance of expert advice. But except perhaps in the simplest cases, this does not mean that the law has to codify the answers to every possible issue which may arise. It is enough that it lays down principles which are capable of being predictably applied to any situation. 12. The Data Protection Act 1998 is a statute of general application. It is not specifically directed to data obtained or stored by the police. But it lays down principles which are germane and directly applicable to police information, and contains a framework for their enforcement on the police and others through the Information Commissioner and the courts. It deals directly in section 29 and in paragraph 5 of Schedule 2 with the application of the principles to law enforcement. The data protection principles themselves constitute a comprehensive code of corresponding to the requirements of the EU Directive and the Convention. The effect of the first principle, read in conjunction with the requirements of Schedule 2, is that data cannot be obtained, recorded, held or used by the police unless it is necessary for them to do so for the purpose of the administration of justice or the performance of their other functions. The fifth principle prevents the retention of data for any longer than is necessary for this purpose. These principles are supplemented by a statutory Code of Conduct and administrative guidance compliance with which is mandatory. The relevant functions of the police are limited to policing functions which are clearly and narrowly defined in paragraph 2.2 of the statutory Code of Practice. 13. There are discretionary elements in the statutory scheme as there must inevitably be, given the great variety of circumstances that may give rise to allegations that personal data have been improperly processed. But their ambit is limited. In the first place, the Code of Practice governing police information is an administrative document whose contents are determined by police organisations subject to approval of the Home Secretary. It leaves room for discretionary judgment by the police within specified limits, notably in the area of the duration of retention. But the Code and the guidance issued under it are subordinate instruments which are subject to the data protection principles. Neither the Information Commissioner nor the courts are bound or indeed entitled to apply them in a manner inconsistent with those principles. Secondly, the Commissioner has a discretion whether to take action. He need not, for example necessarily issue an enforcement notice in a trivial case or one in which the Contravention has caused no appreciable damage or distress. But he is bound to enforce the Act, and his performance (or non-performance) of his functions is subject to judicial review in the ordinary way. ... 17. In my opinion, the retention of data in police information systems in the United Kingdom is in accordance with law …”[56]The issue of proportionality in the context of the police’s disclosure of non-conviction material in an enhanced criminal records certificate was also considered by the Court of Appeal in R (A) v Chief Constable of Kent[2013] EWCA Civ 1706. As Beatson LJ recognised in the course of his judgment, “1 …The effect of disclosing such information is often, in practice the end of any opportunity for the individual to be employed in an area for which an ECRC is required. Balancing the risks of non-disclosure to the interests of the members of the vulnerable group against the right of the individual concerned to respect for his or her private life is a particularly sensitive and difficult exercise where the allegations have not been substantiated and are strongly denied.” He also noted that subsequent to the decision in R (L) v Commissioner of Police for the Metropolis, the Home Office had issued guidance under s.113B(4A) of the Police Act 1997 to assist chief officers of police in, “making appropriate, proportionate and consistent decisions in providing information from local police records for inclusion in enhanced criminal record certificates (ECRCs)”, which contained a number of principles setting out the need for decision-makers to consider issues of relevancy, necessity, proportionality and consistency.[57]However the court also provided valuable guidance as to the approach which any court should take in relation to the review of the decision- making process in such cases, and the issue of proportionality. It is apparent that whilst a high-intensity review of the decision is required, in that the court must make its own assessment of the factors considered by the decision-maker, the court must not conduct a “merits review.” Moreover, that the evaluation of proportionality must be made by reference to the material which was available at the time, and the court should not generally consider other material which could not have been available to the decision-maker at the time of making the decision. Appropriate weight should be given to the conclusions of the decision-maker, on the basis that the person has been entrusted with the task as a result of their access to special sources of information. Although a decision should not be found to be disproportionate because the decision-maker did not follow a formal structure of reasoning, such that it is the substance rather than the form which is important, Beatson LJ did go on to observe, that in a case in which it was difficult to disentangle substance from form, “52 ...Whilst I respectfully agree fully with the deprecation of requiring ‘formulaic incantations’ of the considerations to be taken into account, some concern with process may assist not only in determining whether a decision is wrong but by providing guidance to the primary decision-maker in future cases and in achieving a better quality of decision ...”

Statutory and regulatory framework

[58]Part V of the Police Act 1997 makes provision for the issue of certificates about criminal records. Under section 113B “(1) The Secretary of State [DBS] must issue an enhanced criminal record certificate to any individual who -(a) makes an application …, and (aa) is aged 16 or over at the time of making the application(b) pays in the prescribed manner any prescribed fee (2) The application must (a) be countersigned by a registered person, and (b) be accompanied by a statement by the registered person that the certificate is required [for the purposes of an exempted question asked] for a prescribed purpose. … (3) An enhanced criminal record certificate is a certificate which - (a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with sub section (4), or (b) states that there is no such matter or information (or states that there is no such matter or information), and (b) if the applicant is subject to notification requirements under Part 2 of the Sexual Offences Act 2003 (c 42), states that fact. (4) Before issuing an enhanced criminal record certificate the Secretary of State (DBS) must request any relevant chief officer to provide any information which - (a) the chief officer reasonably believes to be relevant for the purpose described in the statement under subsection (2), and (b) in the chief officer’s opinion ought to be included in the certificate. …” (a) makes an application …, and (aa) is aged 16 or over at the time of making the application (b) pays in the prescribed manner any prescribed fee (a) be countersigned by a registered person, and (b) be accompanied by a statement by the registered person that the certificate is required [for the purposes of an exempted question asked] for a prescribed purpose. … (a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with sub section (4), or (b) states that there is no such matter or information (or states that there is no such matter or information), and (b) if the applicant is subject to notification requirements under Part 2 of the Sexual Offences Act 2003 (c 42), states that fact. (a) the chief officer reasonably believes to be relevant for the purpose described in the statement under subsection (2), and (b) in the chief officer’s opinion ought to be included in the certificate. …”[59]The Home Office has issued Statutory Disclosure Guidance for those responsible for issuing, interalia, enhanced criminal records certificates. The guidance being issued under section 113B (4A) of the Police Act 1997 which provides “In exercising functions under subsection (4) a relevant chief officer must have regard to any guidance for the time being published by the Secretary of State”. By paragraph 7 of the guidance it is to be understood that “This guidance sits alongside the Quality Assurance Framework (QAF) which is a set of processes and more detailed guidance covering the disclosure of local police information under the Act, drawn up by the Association of Chief Police Officers and the Criminal Records Bureau. Chief Officers should also have regard to the QAF in carrying out functions under section 113B(4) of the Act.” “Principle 1 – there should be no presumption either in favour of or against providing a specific item or category of information 11. Every piece of information should be assessed on its own individual merits. Information should not be included (or excluded) simply because it is of a certain type.” Principal 2 – information must only be provided if the chief officer reasonably believes it to be relevant for the prescribed purpose. … 13. The word ‘relevant’ should be given its natural meaning … Information must only be provided if the chief officer reasonably believes it to be relevant … Forming a reasonable belief that information is relevant is a higher hurdle than merely considering that it might be or could possibly be relevant. The most important factors which should be taken into account in considering relevancy are as follows. However, this is not an exhaustive list and other factors may come into play in individual cases. Information should be reasonably believed to be relevant for the prescribed purpose for which the certificate is being sought. 14. Chief officers should address the purpose in considering issues of relevancy. What may be relevant to an application connected with caring for children or vulnerable adults may not be relevant where the application is, say, seeking a licence under gaming legislation … Information should be viewed as sufficiently serious 15. There are no hard or fast rules to apply in this area, but chief officers should consider whether a specific piece of information is of sufficient gravity to justify its inclusion. It will be disproportionate to disclose information if it is trivial, or simply demonstrates poor behaviour, or relates merely to an individual’s lifestyle. 16. There is some relationship here to the purpose for which the certificate is being sought. A relatively minor piece of intelligence with a clear relationship to that purpose might reasonably be viewed as relevant, while something more serious with no such relationship might not. In some cases it might be reasonable to view information linked to an isolated incident or allegation less seriously than information linked to a sequence … Information should be sufficiently current. … Information should be sufficiently credible.18. This will always be a matter of judgement, but the starting point will be to consider whether the information is from a credible source. Chief officers should consider whether there are any specific circumstances that lead them to consider that information is unlikely to be true or whether the information is so without substance that it is unlikely to be true. In particular, allegations should not be included without taking reasonable steps to ascertain whether they are more likely than not to be true. Principal 3 – Information should only be provided if, in the chief officer’s opinion, it ought to be included in the certificate.19. Having formed what they regard as a reasonable belief that the information is relevant, the chief officer must then consider whether it ought to be included in the certificate. There are two key areas to be considered under this heading, as set out below. The impact of disclosure on the private life of the applicant or a third party.20. The words ‘ought to be included’ should be read and given effect in a way which is compatible with the applicant’s right to respect for their private and family life under Article 8 of the European Convention on Human Rights … Therefore chief officers must ensure that the disclosure of such information is justified in every case.21. Firstly this requires establishing whether there is a legitimate aim pursued by the disclosure; this might be the legitimate aim of crime prevention and/or the protection of the rights and freedoms of others and/or ensuring public safety. Every case should be evaluated on its own facts.22. If there is a legitimate aim pursued, the next step is to consider whether the disclosure of the information is necessary to pursue that aim including consideration of whether there are any other realistic and practical options to pursue that aim. If disclosure is considered necessary to pursue that aim then the question becomes one of proportionality. In practice this will involve weighing factors underpinning relevancy, such as seriousness, currency and credibility against any potential interference with privacy. All decisions must be proportionate. This means that the decision is no more than necessary to achieve the legitimate aim and that it strikes a fair balance between the rights of the applicant and the rights of those the disclosure is intended to protect. It is therefore essential that the reasoning in reaching a decision is fully and accurately recorded in each case. … Principal 4 – The chief officer should consider whether the applicant should be afforded the opportunity to make representations. 26. In any case where a chief officer is minded to provide information for inclusion in a certificate or is uncertain whether to do so, they should consider whether the applicant should be offered the opportunity to make representations before the information is submitted. Some of the factors relevant to this consideration are: … … is there any doubt as to whether factual information is correct or remains valid? is it questionable whether disclosure of this information would represent a disproportionate interference with the applicant’s private life? …”

is there any doubt as to whether factual information is correct or remains valid?

[60]The Police Act 1997 (Criminal Records) Regulations 2002 provides under Regulation 5A Enhanced Criminal Records Certificates: prescribed purposes “The purposes for which an enhanced criminal record certificate may be required in accordance with a statement made by a registered person under section 113B(2)(b) of the Act are prescribed as follows, namely the purposes of - (a) considering the applicant’s suitability in the circumstances set out in Regulation 5C. ….” Regulation 5C provides for the circumstances referred to in Regulation 5A(a) for working with children. ….”[61]The Data Protection Act 1998 provides at section 1(1) that, “‘processing’ in relation to information or data means obtaining, recording or holding the information or data or carrying out any operation or set of operations or set of operations on the information or data, including - … (c) ‘disclosure of the information or data … …” Under section 4(4) “Subject to section 27(1), it shall be the duty of a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller.” Part 4 at IV sets out the exemptions from the statutory principles. Section 27(1) provides “References in any of the data protection principles or any provision of parts II and III to personal data or to the processing of personal data do not include references to data or processing which by virtue of this Part are exempt from that principle or other provision. …” By section 29(1) “Personal data processed for any of the following purposes -(a) the prevention or detection of crime … are exempt from the first data protection principle (except to the extent to which it requires compliance with the conditions in Schedules 2 and 3) and section 7 in any case to the extent to which the application of those provisions to the data would be likely to prejudice any of the matters mentioned in this subsection. … (3) Personal data are exempt from the non-disclosure provisions in any case in which - (a) the disclosure is for any of the purposes mentioned in sub section (1), and(b) the application of those provisions in relation to the disclosure would be likely to prejudice any of the matters mentioned in that subsection”. The Act provides for those rights of individuals vis a vis the data controller including section 7 rights of access to personal data, under section 10 the right to prevent processing likely to cause damage or distress under section 13 compensation for failure to comply with certain requirements. At section 14 the rectification blocking erasure and destruction of data. These matters and others being enforceable by way of complaint to the Information Commissioner and or by action in court. Schedule 1 Part 1 sets out the relevant data protection principles. At paragraph 1 “Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless – (a). at least one of the conditions in Schedule 2 is met, and …” … Paragraph 4 “Personal data shall be accurate and, where necessary, kept up to date”. Paragraph 6 provides “Personal data shall be processed in accordance with the rights of data subjects under this Act”. By Schedule 2 of the Act paragraph 5 “The processing is necessary - … (d) for the exercise of any functions of a public nature exercised in the public interest by any person”.(c) ‘disclosure of the information or data … …” “References in any of the data protection principles or any provision of parts II and III to personal data or to the processing of personal data do not include references to data or processing which by virtue of this Part are exempt from that principle or other provision. …” “Personal data processed for any of the following purposes - (a) the prevention or detection of crime … … are exempt from the first data protection principle (except to the extent to which it requires compliance with the conditions in Schedules 2 and 3) and section 7 in any case to the extent to which the application of those provisions to the data would be likely to prejudice any of the matters mentioned in this subsection. … (3) Personal data are exempt from the non-disclosure provisions in any case in which - (a) the disclosure is for any of the purposes mentioned in sub section (1), and (b) the application of those provisions in relation to the disclosure would be likely to prejudice any of the matters mentioned in that subsection”. “Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless – (a). at least one of the conditions in Schedule 2 is met, and …” … “Personal data shall be accurate and, where necessary, kept up to date”. “Personal data shall be processed in accordance with the rights of data subjects under this Act”. “The processing is necessary - …(d) for the exercise of any functions of a public nature exercised in the public interest by any person”.[62]Section 10 of the Children Act 2004 provides that “(1) Each local authority in England must make arrangements to promote co-operation between -(a) the authority(b) each of the authority’s relevant partners; and(c) such other persons or bodies as the authority consider appropriate …” (c) such other persons or bodies as the authority consider appropriate …”[63]“Working Together to Safeguard Children” is the current statutory guidance provided under section 11(4) of the Children Act 2004. It provides at paragraph 6 “This guidance aims to help professionals understand what they need to do, and what they can expect of one another, to safeguard children. … In doing so, it seeks to emphasise that effective safeguarding systems are those where: … all professionals share appropriate information in a timely way and can discuss any concerns about an individual child with colleagues and local authority children’s social care; Paragraph 13 “Effective safeguarding systems are child-centred” “Failings in safeguarding systems are too often the result of losing sight of the needs and views of the children within them, or placing the interests of adults ahead of the needs of children.” Under Chapter 2 paragraph 4 … “county level and unitary local authorities should have a Local Authority Designated Officer (LADO) to be involved in the management and oversight of individual cases. The LADO should provide advice and guidance to employers and voluntary organisations, liaising with the police and other agencies and monitoring the progress of cases to ensure that they are dealt with as quickly as possible, consistent with a thorough and fair process; any allegation should be reported immediately to a senior manager within the organisation. The LADO should also be informed within one working day of all allegations that come to an employer’s attention or that are made directly to the police; and …” Under paragraph 14 “… In addition to identifying when a child may be a victim of a crime, police officers should be aware of the effect of other incidents which might pose safeguarding risks to children and where officers should pay particular attention. …” Paragraph 15 provides “The police can hold important information about children who may be suffering, or likely to suffer, significant harm, as well as those who cause such harm. They should always share this information with other organisations where this is necessary to protect children …”[64]The Police Reform Act 2002 at section 12 sub-section 1 provides “In this part references to a complaint are references (subject to the following provisions of this section) to any complaint about the conduct of a person serving with the police which is made (whether in writing or otherwise) by - (a) a member of the public who claims to be the person in relation to whom the conduct took place; … (d) a person acting on behalf of a person falling within any of paragraphs (a) to (c)”. (a) a member of the public who claims to be the person in relation to whom the conduct took place; Discussion Accordance with law

Discussion

[65]It is now well established that both the retention and disclosure by public authorities of information concerning allegations of non-conviction misconduct by an individual will engage his/her Article 8 rights, such that it will be necessary for the public authority to be able to establish that its activities in relation to information concerning that individual are in accordance with law, necessary in a democratic society, and that a fair balance has been struck between the relevant competing ECHR rights i.e. that the decision to retain and/or disclose the information is proportionate.[66]The Supreme Court in R (Catt) v ACPO considered that the common law afforded the police the power to obtain and store information for policing purposes, which they broadly defined as being the maintenance of public order and the prevention and detection of crime. Moreover, that the DPA 1998, together with the relevant statutory and administrative codes, provides a sufficiently clear, accessible and consistent set of rules, so as to prevent arbitrary or abusive interference with an individual’s Article 8 rights; such that the retention of data by the police is in accordance with law.[67]Moreover, it is implicit in the decisions of both R (L) v Commissioner of Police for the MetropolisandR (A) v Chief Constable of Kent, that the Police Act 1997, together with the relevant statutory regulation, provide sufficient relevant safeguards for the disclosure of information by the police in relation to enhanced criminal record certificates, so to be considered to be in accordance with law.[68]However, the disclosure in this case was not provided within an enhanced criminal record certificate, a reactive measure requiring a prior request on behalf of the individual, but was a proactive measure carried out by DC Pain. The question arises therefore, as to whether this disclosure was in accordance with law.[69]In the course of his submissions Mr Hugh Southey QC, on behalf of the claimant, sought to argue that the police had no common law power to disclose such information. Alternatively, if they did, the effect of MM was that in the absence of statutory authority, such as the Police Act 1997, disclosures which may once have been in accordance with law, have now ceased to be so.[70]It is true that in R (Catt) v ACPO the Supreme Court was not dealing with the issue of disclosure of information by the police, only that of its retention and storage. However, Lord Sumption’s observation that, “15 ...the prospect of future disclosure is limited by comprehensive restrictions. It is limited to policing purposes, and is subject to an internal proportionality review and the review by the Information Commissioner and the courts.” not only appears to acknowledge that a common law power to disclose such material exists, where it is necessary for police purposes, but that the same statutory and administrative provisions which rendered the retention and storage of such material in accordance with law, would also render its disclosure likewise.[71]It is correct to acknowledge that various exemptions apply to the application of certain of the data protection principles under the DPA 1998, and that one of those, s.29, relates, inter alia, to the prevention or detection of crime. However, it is apparent that this exemption is only permitted where it is established that the application of those principles “….would be likely to prejudice….” the prevention or detection of crime. It seems to me that this exemption is not only justified, given the purpose for which it is permitted, but also the limitation on its application is such that the DPA 1998, together with the relevant statutory and administrative codes, provide sufficient safeguards so as to prevent arbitrary or abusive interference with an individual’s Article 8 rights. On the one hand given the police’s duties and concomitant powers, it is clearly necessary for the exemption to exist, in that the police will, on a daily basis, be in receipt of large quantities of information about individuals, of varying quality and accuracy, which it would not only be wholly unreasonable to expect them to ascertain its accuracy prior to its recording and retention, but to do so would be prejudicial to those lawful aims. On the other hand, where, for example, disclosure of such information to a third party is being considered, then although, in some circumstances, it may be prejudicial to those lawful aims to expect the police to ascertain its accuracy prior to doing so, in which case the exemption will apply, there may be other circumstances in which it would not be prejudicial, and the exemption will not apply. In my judgment the limitation on this necessary exemption allows those involved in the process to strike the correct balance between the competing considerations under the ECHR.[72]Moreover, although the police purposes with which the Supreme Court in R (Catt) v ACPO was concerned were the maintenance of public order and the prevention and detection of crime, these are not the only police purposes, another of which involves public protection; a matter which appears to have underpinned the disclosures made by the police inR v Chief Constable of North Wales ex. Parte Thorpe & others, and one which, on its own, is not afforded any exemption from the application of the DPA 1998.[73]In these circumstances it seems to me that not only does the common law empower the police to disclose relevant information to relevant parties, where it is necessary for one of these police purposes, but that the DPA 1998, together with the relevant statutory and administrative codes, provide a sufficiently clear, accessible and consistent set of rules, so as to prevent arbitrary or abusive interference with an individual’s Article 8 rights; such that the disclosure will be in accordance with law.[74]However, it will clearly be necessary in any case, and in particular in relation to a decision to disclose information to a third party, for the decision-maker to examine with care the context in which his/her decision is being made.[75]In the present case, although the disclosure of the information by the police was to a LADO in circumstances involving the safeguarding of children, it also took place in the context of the claimant’s employment. The relevance of this being, as DC Pain was clearly aware from the contents of his e-mail to PS Bennett dated 10th June 2013, that the disclosure of the information had the potential to adversely affect the continuation of the claimant’s employment at the school. In these circumstances, although it is not without relevance that the disclosure of the information by DC Pain was to a LADO, I do not consider that either this or the provisions of the Children Act 2004 or Working Together to Safeguard Children, absolved the defendant from considering whether it was necessary and proportionate to disclose the information to MN. Indeed, although the provisions of the Police Act 1997 and the relevant statutory guidance did not apply to DC Pain’s decision, as he was not considering the inclusion of the information on an enhanced criminal record certificate, it was in my judgment necessary for DC Pain to have due regard to the criteria within those provisions; not only for the purposes of consistency in decision making in the same contextual field of employment, but in particular to ensure that he took into account the matters which were necessary in making a proportionate decision.

The disclosure decision

[76]I turn then to deal with the lawfulness of DC Pain’s decision to disclose the information in this case. I would observe at once, as I raised with counsel during the course of submissions, that the evidence in this case, particularly that provided on behalf of the defendant, is woefully inadequate; comprising a short witness statement from DC Pain, which is unclear on its face and inconsistent with some of the contemporary and other material. I am also conscious that over and above the letter from GH, I have no evidence from any of the others involved in the various decision-making processes in this case. Therefore I appreciate that any observation which I make about the decisions taken by these others is made in the absence of any contribution which they may have been able to make about them.[77]I mention these matters because although I do not intend to do any more than review the decision made by DC Pain, and in turn the decisions by those involved in the subsequent police complaint procedure, it is necessary for the review to take place within a factual context.[78]In this regard, although I have no reason to doubt that DC Pain believed that the information originally provided to him by the college was that which he provided in his e-mail to PS Bennett dated 10th June 2010, not only was this information inaccurate in the sense of being untrue, (as is apparent from the records of the college’s disciplinary proceedings), but in the light of the letter from GH dated 8th September 2014, and the other matters to which I have already referred in the chronology of events, I am not prepared to accept that it was the information which the college had provided to DC Pain concerning the claimant. As I have already observed, a material difference between these two pieces of information was that, whilst the information which DC Pain mistakenly believed to have been provided to him by the college was likely to have involved the commission of sexual offences by the claimant upon young females, the information which had in fact been provided to him by the college in the e-mail exchange in September 2010, including the information recorded by him in his notebook on 13th October 2010, did not do so; a matter which appears to have been the rationale for the decision by the defendant’s DBS unit not to disclose the information which it considered, which appears to have been limited to that contained in the defendant’s record management system, namely the exchange of e-mails between DC Pain and the college in September 2010. Furthermore, in the light of the e-mail from Mr Pettet to the defendant dated 28th January 2014, I consider that the information which DC Pain provided to MN comprised all of that which was contained in his e-mail to PS Bennett dated 10th June 2010.[79]In this context when, in June 2013, DC Pain was informed by the college that the claimant was working at a girls’ school on the mainland, because of his mistaken belief that it was likely that the claimant had previously been involved in the commission of sexual offences upon young females, I fully accept that he would have had justified concerns for public protection, and that in these circumstances it was doubtless appropriate for him to have sought the advice of a more senior officer, especially one working in the defendant’s central public protection department, namely PS Bennett, in relation to the issue of the disclosure of this potentially relevant information.[80]However, as I have already indicated, although safeguarding issues were in play and the anticipation was disclosure to a LADO, in my judgment it was still necessary for both DC Pain and PS Bennett to consider, not only whether it was necessary to disclose this information, but also whether it was proportionate to do so. As both of these officers worked in departments which dealt with child protection issues, they would have had familiarity with the necessity for those working with children, including teachers, to obtain enhanced criminal record certificates, and therefore the likelihood, if not inevitability, of the claimant previously having had to obtain such a certificate from the defendant, in order for it to be provided to the school; a matter which, as they were aware, was dealt with by the defendant’s DBS unit. In these circumstances, it was in my judgment, a necessary procedural step for DC Pain to ascertain from the DBS unit as to, whether, and if so, what information it had already disclosed on any enhanced criminal record certificate, as clearly if the unit had already disclosed the information which DC Pain believed had been provided to him by the college, then it would not have been necessary for him to have made any further disclosure of that information.[81]If either DC Pain or PS Bennett had taken this basic procedural step, then not only would it have been immediately obvious that this information had not been provided to the school, but more importantly, in the context of this case, it would also have been obvious that further enquiries were required to be made: firstly as to why no such disclosure had been made by the DBS unit; and secondly, once it had been ascertained that the only information which was in the possession of the DBS unit was the exchange of e-mails on the defendant’s management system, as to the accuracy of the information with which DC Pain believed he had been provided by the college.[82]The initial enquiry would no doubt have involved him checking the defendant’s records relating to the information from the college. However, having done so, and given the lack of contemporaneous material beyond the e-mail exchange between himself and GH in September 2010 and his own note of 13th October 2010, neither of which confirmed the inaccurate information which he understood had been provided to him, in my judgment he would have been obliged to make further enquiries, at the very least of GH, as to the findings made in the course of the college’s disciplinary proceedings, and if he had made those further enquiries, GH would no doubt have provided him with information in accordance with her letter dated 8th September 2014.[83]It is unclear from the witness statement of DC Pain whether either he or PS Bennett made the necessary enquiry of the defendant’s DBS unit. There is certainly no mention of such an enquiry, and it perhaps matters little: on the one hand, if neither of them did so, then this omission has led directly to the disclosure decision being made on an entirely false basis; on the other hand, if such an enquiry was made, then in the absence of any explanation for the decision to disclose the inaccurate information, there has been a serious omission to make further enquiries, at the very least with [GH], if not the claimant, which in turn has led directly to the disclosure decision being made on a false basis.[84]As I have already observed, I appreciate that the decision which was actually made by DC Pain and PS Bennett was not to disclose this information to the school directly, but to disclose it to MN, and it was her decision, in turn, to disclose the information to the school. In this regard it is obviously of relevance that s.11(2)(a) and (4) of the Children Act 2004 imposes duties upon the police to discharge their function having regard to the need to safeguard and promote the welfare of children, and in doing so have regard to the relevant statutory guidance, which in turn emphasises the paramountcy of children’s needs and necessity for the timely sharing of information concerning child protection. Moreover MN will have been under a duty to make a separate Article 8 compliant decision as to whether to disclose the information to the school.[85]However, not only am I unpersuaded that this permits the police to abdicate all responsibility for making an article 8 compliant decision whether to disclose the information to the LADO, but in this case, because of the significant failures to follow appropriate procedures, the defendant has provided false information to her of such apparent seriousness that it was almost inevitable that MN would in turn decide to provide this information to the school. In this regard I consider that there is no foundation to DCI Dawson’s assertion in her letter of 7th July 2014, that MN “…would have been in a much better place….” to make enquiries about the information than DC Pain.[86]I am of course conscious of the necessary limitations upon the role of the court in relation to the review of decisions, especially those that are made by individuals who have been specifically entrusted with making them because of their particular experience, expertise and/or authority. Moreover, that the court should not take into account material which could not have been available to the decision-maker at the time of making the decision. However, it seems to me that, given the evidential context, this is one of those unusual cases which, as Beatson LJ said in R (A) v Chief Constable of Kent, “reflect a category of case in which substance and procedure can be difficult to disentangle.” Moreover, it seems to me that unlike the circumstances of that case, where the court had taken into account the decision of another body which was made after the decision under review, the accurate reason for the claimant’s dismissal from the college, not only could have been available to DC Pain when he made the disclosure decision in this case, but would have been available to him had the necessary procedural enquires been carried out by him and/or PS Bennett.[87]The reality is that in the present case, false information has been disclosed by the defendant to the relevant LADO of far greater seriousness than that which accorded with reality, and that the reason for its disclosure was a failure by DC Pain and/or PS Bennett to make the necessary enquiries which were required in order for them to be able to make an Article 8 compliant decision. Moreover, to the extent that s.29 of the DPA 1998 is of relevance, not only does it appear that this was a matter being considered under the defendant’s public protection powers, but it seems to me that in the context of this case there would have been no prejudice to any of the relevant purposes from the application of the disclosure principles and/or non-disclosure provisions to the disclosure in this case.[88]It seems to me that, in the circumstances of this case, it is unnecessary to consider whether, if those further enquiries had been made and the accurate information had been considered by DC Pain, he would in any event have decided to disclose that information. However, bearing in mind the nature and extent of the accurate information which does not appear to have involved criminal conduct, the findings of both the ISA and the GTC, and the need to have due regard to the criteria in the Police Act 1997 and its statutory guidance, although it is likely that it would have been both necessary and proportionate for this information to be retained by the defendant in order to enable it to assess the significance of any further information which it received about the claimant, I do not consider that it would have been proportionate to disclose the information to the relevant LADO at this stage. In this regard, although, because the matter is unclear, I do not rely upon it, if the recent decision which was made by the defendant’s DBS unit on 3rd June 2014 not to disclose anything on the enhanced criminal records certificate reflects proper consideration of the accurate reasons why the claimant was dismissed from the college, then this would support this view.[89]Accordingly, I am satisfied that the decision to disclose the information concerning the claimant to MN was unlawful, in that it failed to have sufficient regard to the claimant’s Article 8 rights.

The police complaint decision

[90]The observations which I made in relation to the evidential deficit concerning the disclosure decision, apply all the more to the police complaint decision. Apart from the documentary evidence, there is no witness evidence as to the procedure undertaken by the defendant in relation to this matter. The result is that, although I am of course prepared to accept that at various junctures officers who were tasked to investigate this matter spoke to DC Pain, and it may be to other police officers, about the matter, in the absence of other evidence, I consider that DC Pain’s explanation is unlikely to have been any more revealing than that contained in his witness statement made for the purpose of these proceedings.[91]In this regard although it is possible that, because of the lack of clarity in the drafting of the original letter of complaint, it may not initially have been appreciated that it was being suggested that the information disclosed by DC Pain was false, it is apparent that at least by the time the matter came to be considered by DCI Dawson, this was fully understood.[92]I again remind myself that my approach to assessing the lawfulness of the police complaint decision is one of review of its legality, rather than a merits review; such that if, after an appropriate investigatory procedure had been carried out, the original decision-maker had found that DC Pain had received the false information in good faith, then absent irrationality, I would have been bound by it. However, given the appropriate importance which the police accord to the making of the contemporaneous recording of the provision of information, I consider that it is of considerable significance that there is no reference in any of the documentation emanating from the investigation to any of those who were charged with the duty to investigate this matter having considered, not only the lack of any contemporaneous recording of the false information, but the inconsistency of the that information with such contemporaneous records as do exist, namely the e-mail exchange between DC Pain and [GH] in September 2010 and the entry in DC Pain’s notebook dated 13th October 2010. The only document which DCI Dawson relies upon in support of DC Pain having been provided with the false information is the e-mail dated 10th June 2013. However, not only does this not purport to be a contemporaneous record, but according to DC Pain’s witness statement it appears that the false information was provided to him about three years earlier.[93]Moreover, it is not at all clear, either from DCI Dawson’s letter dated 7th July 2014, or from any of her predecessors, that they have appreciated the significance of the fact that the material which the defendant’s DBS unit considered for the purposes of providing the claimant with an enhanced criminal records certificate, was limited to the e-mail exchange between DC Pain and [GH] in September 2010. If they failed to appreciate this matter, then the lack of rigour which this exhibits is another significant deficit in their investigation. On the other hand if they did appreciate it, then it exhibits an even more serious lack of thoroughness in the investigation, in that it immediately highlighted the need to make further enquiries.[94]As it became apparent that the disclosure of false information by DC Pain lay at the heart of the complaint, it seems to me that it was necessary for this issue to be properly investigated, in order for the complaint proceedings to have been adequately conducted with a view to reaching a lawful decision. In this regard the most obvious matter would have been to contact [GH] for her explanation. This would not have been unduly onerous for the investigation, and, in my view, the seriousness of the complaint required it. Whilst the investigation would not have been bound to have accepted what it may be assumed would be an explanation from her in line with her letter dated 8th September 2014, (although the contemporaneous records which exist appear to favour her account), there is no reference to anyone outside the defendant’s officers being contacted about this matter, and in these circumstances I consider that the failure to conduct an appropriate and sufficient investigation is so procedurally unfair as to render the resulting decision unlawful, in that it has been reached upon an entirely false basis.[95]However, in addition to the procedural unfairness involved in the decision, there are other factors which adversely affect the legality of the complaint decision. Firstly, I have already alluded to the potential procedural significance of the lack of clarity as to whether any of those involved in the complaints procedure appreciated that there was a lack of correlation between the inaccurate information which DC Pain took into account when making his disclosure decision, and the limited yet more accurate information which formed the basis of the DBS unit’s decision not to include any information in the enhanced criminal record certificates which were issued to the claimant. However if in fact they had appreciated this matter, another factor which it reveals is that the decision-makers failed to appreciate the apparent inconsistency between the two decisions. In that if the DBS unit, which will have been particularly experienced in such matters, did not consider that disclosure was either necessary and/or proportionate, then, absent cogent reasons, it would be difficult for those considering the complaint to have concluded that there was no fault on the part of DC Pain and PS Bennett. Secondly, I have already mentioned the lack of foundation for DCI Dawson’s assertion that MN would have been much better placed to make the necessary enquiries about the information. Thirdly, DCI Dawson appears to have given undue weight to the significance of the disclosure having been made to MN, as opposed to the school, and her predecessor’s undue weight to the “overarching obligation” to the safeguarding of children. Although these factors in themselves may not have been sufficient to render the complaint decision unlawful, they are matters which contribute to the overall concern about the basis upon which the decisions in regard to the complaint were reached.

Alternative remedy

[96]I have given careful consideration as to whether, bearing in mind the provisions of the DPA 1998, the claimant ought to be granted permission to judicially review the decisions in this case. Mr Dijen Basu QC, on behalf of the defendant, has rightly pointed out that the availability of an alternative remedy is a significant factor against the granting of permission. (See: R(U) v Special Immigration Appeals Commission[2010] 2 WLR 1012; R(Hussein) v Secretary of State[2014] EWHC 4151 (Admin)). However, it is clear that the availability of such a remedy does not oust the court’s power to grant judicial review, and it seems to me that in the particular circumstances of this case, I should grant permission.[97]Firstly, although the claimant could have chosen to raise the issue concerning the disclosure of the inaccurate information under the DPA 1998, he did not simply ignore the availability of an alternative remedy. Instead he selected another alternative statutory remedy, namely a complaint under the provisions of the Police Reform Act 2002. Although in hindsight this may not have been the most beneficial route for him to have selected, this is not a case in which the option of pursuing an alternative remedy has simply been ignored by him. Indeed if the investigation into the complaint had been carried out appropriately, as it should, this would have precluded the need for judicial review. Secondly, having chosen this alternative remedy, the resolution of the legality of the complaint procedure would not have been one which would necessarily have been fully reviewed under the DPA 1998. Thirdly, although ultimately the claimant has not succeeded on the main challenge to the defendant’s power to disclose non-conviction material outside the ambit of the Police Act 1997, not only does the case raise an important issue as to the ambit of the police’s power to disclose matters to other agencies, such as a LADO, but it raises significant issues in relation to the legality of both the original disclosures decision, and the subsequent complaint decision.[98]Now that the first of these issues has been considered, it may hereafter be difficult for a claimant, in similar circumstances, to argue that, in the absence of pursuing the statutory remedies under the DPA 1998, permission for judicial review should be granted. However, for the reasons I have provided in the present case, I do, subject to the resolution of the timeliness issue, consider that this is an appropriate case in which to grant permission.

Timeliness

[99]The claim form was issued on 23rd July 2014. The claimant acknowledges that he is out of time in relation to the judicial review claim concerning the original disclosure decision, albeit within the 3 months outer time limit for the complaint decision. In regard to the former decision, although there are some grounds for arguing an earlier date, the effective date of knowledge in this case was 7th December 2013, the date of the complaint decision being either 2nd May 2014 or 7th July 2014. In regard to this latter decision, I consider that in view of DCI Dawson having undertaken a review of the earlier decisions, it was appropriate for the claimant to await her decision, such that the appropriate date is 7th July 2014, following which the claimant commenced proceedings promptly in respect of that decision on 23rd July 2014.[100]The court does have power, where appropriate to extend time, and some of the relevant criteria to consider are those set out in the judgment of Maurice Kay J. (as he then was) in R v Sec of State Ex Parte Greenpeace[2000] Env LR 221, namely; whether there is a relevant objective excuse for the delay; the extent of any hardship to third party rights or good administration in allowing the application to proceed; and the public interest in allowing the application to proceed. In the present case, the claimant having decided to pursue the alternative remedy under the Police Reform Act 2002, I do consider that there is a relevant objective excuse for the delay. It does not seem to me that there is in reality any hardship if the application is allowed to be pursued, and for the reasons I have already provided it seems to me that there is sufficient public interest in some of the matters which have had to be considered in this case, so as to justify the pursuance of this application. In these circumstances I consider that it is appropriate to extend time in relation to the first decision, the claim in respect of the second decision being well within time.

Conclusion

[101]Accordingly, I grant declarations that the both the original disclosure decision and the police complaints decision were unlawful.