S, R (on the application of) v West Mercia Constabulary & Anor

In deciding whether information may be included in an enhanced criminal record certificate, the chief officer must ask whether it might be true and might be relevant to the stated employment purpose. The court applies a straightforward Wednesbury review and adds no heightened threshold. An acquittal does not, by itself, prevent disclosure. The circumstances of the acquittal may, however, make mistaken identity so probable that disclosure is unreasonable. Where relevant material is missing, the decision-maker must take reasonable steps to establish the reason for the acquittal before deciding. Disclosure must also be accurate and not misleading. The fact that an employer could obtain the information by direct questioning does not determine whether statutory disclosure is justified.

The claimant sought judicial review of information disclosed by West Mercia Constabulary for inclusion in an enhanced criminal record certificate required for a proposed rugby-coaching post. The certificate referred to allegations of public indecency, the claimant’s charge and prosecution, and his acquittal.

An initial disclosure decision was made without knowledge of why the claimant had been acquitted, after the relevant criminal file had been lost. A deputy chief constable reconsidered the matter with additional evidence and decided that a fuller disclosure should be made. The claimant challenged both decisions, arguing that disclosure was irrational and that the proposed wording was misleading. The central issues were whether the allegations might be true and relevant under section 113B of the Police Act 1997, and whether the proposed certificate would be accurate.

The claim succeeded. Both disclosure decisions were unlawful, and the proposed draft certificate was in any event misleading.

1. Statutory test. Section 113B of the Police Act 1997 requires the chief officer to form an opinion whether information might be relevant to the stated purpose and ought to be included. The supervisory question is whether that opinion was reasonably open to the officer. The court applied the straightforward Wednesbury test. The officer must ask whether the information might be true; no additional or heightened test is required.
2. Initial decision. Ms Binnersley acted unreasonably because she knew that the claimant had been acquitted but had no information explaining the acquittal. A reasonable decision-maker should have taken reasonable steps to discover why the criminal court acquitted him, including approaching the prosecuting advocate, before deciding whether to disclose the allegations.
3. Reconsidered decision. The deputy chief constable failed properly to evaluate the magistrates’ findings that the prosecution witnesses were honest but mistaken, and that the claimant could not have committed the allegation dated 7 March 2004. The alibi evidence, the failed identification procedures and the absence of evidence from anyone present at trial created powerful grounds for mistaken identity. Since the prosecution case involved one offender acting repeatedly, the conclusion that the claimant might have committed the other offences was also undermined. It was irrational to conclude that he might be the offender.
4. Scope and accuracy. An acquittal alone does not prevent disclosure. Where an acquittal leaves substantial doubt, disclosure may remain rational if the information might be true and relevant to employment involving children. The prospective employer’s ability to ask directly about charges is not determinative. The proposed draft was nevertheless inaccurate to the point of being misleading because it did not fairly reflect the true state of the criminal proceedings.

The court stressed that the decision was fact-specific and did not establish that allegations must be withheld whenever the alleged offender has been acquitted.