SL, R (on the application of) v Commissioner of Police for the Metropolis

An enhanced criminal record certificate may disclose information which might be materially relevant to assessing suitability for work with children. The decision-maker may consider the applicant’s relationship with another person and the possibility of contact with pupils. The applicant’s homosexuality, viewed alone, is irrelevant.

Disclosure must remain particularised, accurate and no wider than strictly justified. Unclear presentation of the significance of information may make the certificate unlawful, even though a certificate could lawfully have been issued in properly expressed terms. Damages require proof that the identified defects caused the loss claimed.

The claimant sought judicial review of the Commissioner’s refusal to amend information disclosed in an enhanced criminal record certificate issued for prospective teaching employment. The certificate referred to the claimant’s arrest, mental health, material found in his partner’s possession, and the partner’s conviction and registration as a sex offender.

The central issues were whether the information might be relevant under section 113B of the Police Act 1997, whether the certificate accurately and sufficiently explained the information disclosed, and whether damages were recoverable for alleged breaches of Article 8.

1. Statutory threshold. The first question under section 113B of the Police Act 1997 was whether a reasonable decision-maker could conclude that the information might be relevant to assessing suitability for work involving regular care, training, supervision or sole charge of children. The relevance had to be real rather than fanciful, remote or speculative.
2. Relevant context. The claimant’s homosexuality was not, by itself, relevant or disclosable. The Commissioner was entitled to consider the claimant’s long-term relationship with the person whose criminal and sexual-offence history was disclosed, including the possibility that a teacher’s partner might come into contact with pupils through extra-curricular activities.
3. Accuracy and clarity. An enhanced certificate must be particularised, accurate and no wider than strictly justified. The certificate failed that standard because it did not make clear the partner’s denial of knowledge of the child images, the much greater quantity of adult material, the limited nature of the video, or that the registration under the Sexual Offences Act 1997 related only to the video. Those omissions materially affected the weight to be attached to the information.
4. The court followed the statutory approach explained in X v Chief Constable of West Midlands Police [2004] EWCA Civ 1068 and L v Commissioner of Police for the Metropolis and Another [2007] EWCA Civ 168. The existing certificate was quashed and declared unlawful for want of clarity. The Commissioner remained free to consider issuing a fresh certificate in properly expressed terms.
5. Damages. Even assuming an Article 8 violation, the claimant could not show that the defects identified in the certificate caused his pecuniary or non-pecuniary loss. The damages claim therefore failed on causation, applying the guidance in R v Secretary of State for the Home Department ex p Greenfield [2005] UKHL 14.
6. The claimant was awarded 15 per cent of his costs, subject to detailed assessment if not agreed.

First-instance judicial review proceedings. Permission was granted by Mr Justice Underhill on the papers on 20 April 2007. The Administrative Court quashed the existing enhanced criminal record certificate and declared it unlawful for want of clarity, but refused damages.