Pinnington, R (on the application of) v Chief Constable of Thames Valley Police

Under s.115(7) of the Police Act 1997, the chief constable must decide whether information might be relevant to the applicant’s suitability for the specified position. The court reviews that opinion on ordinary Wednesbury principles. The officer must consider whether the information might be true, but no higher statutory threshold or additional legal test applies. Allegations obtained through facilitated communication require very great caution, particularly where validation is absent or unsuccessful. That caution may make further criminal proceedings inappropriate, but does not necessarily prevent the allegations from being disclosed. Disclosure may be disproportionate in exceptional cases, but the threshold for disclosure remains relatively low. The employer must assess the disclosed information together with the applicant’s explanation; a blanket policy requiring a clean certificate may prevent a properly informed decision.

The claimant, a deputy principal and care worker at a college for young autistic adults, challenged the decision of the Assistant Chief Constable of Thames Valley Police to provide information about three sexual-abuse allegations for inclusion in an enhanced criminal record certificate. The allegations had not resulted in criminal charges, and the claimant had been dismissed after his employment transferred to an employer requiring a clean certificate.

The claimant argued that the allegations were insufficiently cogent or credible to meet the statutory test and, alternatively, that the certificate should have included fuller contextual information about the investigations and the use of facilitated communication. The court considered whether the disclosure decision was reasonably open to the officer and whether the proposed wording was unlawful.

1. Statutory test and standard of review. The question under s.115(7)(a) of the Police Act 1997 was whether the information might be relevant. The chief constable or delegate had to form an opinion on that issue. The court’s task was to ask whether the opinion was reasonably open to the decision-maker on ordinary Wednesbury principles. In assessing relevance, the officer had to ask whether the information might be true. No additional legal test or higher threshold was required.
2. Assessment of the allegations. The allegations had to be assessed by reference to the totality of the available material. Facilitated communication required very great caution because of the risk that the facilitator could affect the communication. The absence or failure of a validation exercise reinforced that caution and effectively precluded further proceedings based on the material, but it did not establish that the allegations could not be true. The allegations were seriously weakened but were not so devoid of substance that disclosure was unreasonable. There was also material independent of facilitated communication, particularly concerning the third allegation.
3. Proportionality and statutory policy. The possibility that disclosure would cause serious personal and employment consequences did not itself make disclosure disproportionate. The case did not fall within the exceptional category where the evidence made it so unlikely that the information was correct that disclosure would be disproportionate. The legislative scheme placed the ultimate employment decision with the prospective employer.
4. Form of disclosure. The Assistant Chief Constable was not required to include every limitation or criticism of the evidence in the certificate. The claimant could provide further explanation to the employer. Omitting the additional matters proposed by the claimant did not make the disclosure so inadequate or unfair that no reasonable decision-maker could have made it in those terms. The claim for judicial review was dismissed.