A, R (on the application of) v B

Police disclosure of lawful private sexual information engages the right to private life. Disclosure is justified only where there is a sufficiently pressing social need and the means adopted are proportionate.

The decision-maker must identify the nature and gravity of the risk, its evidential basis, and the risk in the particular setting to which disclosure is proposed. The court must apply intense scrutiny. Honest professional concern is insufficient where the assessment is substantially intuitive, lacks empirical or professionally mediated support, and may cause severe consequences. A restrictive common-law approach to confidential information also requires a pressing need for disclosure.

The claimant challenged a police decision to disclose information about his lawful sexual behaviour to his university, a counselling organisation and his trade union. The information included adult pornography, use of sex chat lines and prostitutes, and photographs of women taken without their knowledge.

The police considered that the material indicated a risk of escalating sexual behaviour and that disclosure was necessary to protect women. The claimant relied on article 8, the common law relating to confidential information, the Data Protection Act 1998 and the Computer Misuse Act 1990. The central questions were whether disclosure was in accordance with the law, necessary in a democratic society and proportionate.

1. Claim succeeded. The proposed disclosure was disproportionate under article 8 and was not justified under the restrictive common-law principles governing police disclosure of confidential information.
2. Disclosure of lawful private sexual information constituted an interference with article 8. Any justification required identification of a pressing social need, rational and fair means, and impairment of the right no more than reasonably necessary. The court was required to apply intense scrutiny to the factual justification.
3. The assessment of risk was insufficient. The claimant had committed no offence, had no adverse record or complaint concerning his work, and the principal inference of danger arose from photographs of women taken in public. The police evidence did not clearly identify whether the risk was of an intermediate act, sexual offending or serious sexual assault.
4. The decision-maker had relied substantially on personal intuition. There was no empirical evidence showing that the identified behaviour predicted offending, and the later reference to Finkelhor’s model and a psychotherapist’s lecture could not have informed a decision already made. A professionally mediated assessment would have been important given the grave consequences of disclosure.
5. The risk had to be assessed separately in relation to each proposed recipient. Access to women at the university and union was not shown to differ materially from ordinary social access. Although the counselling context involved one-to-one contact, the evidence still failed to establish a sufficiently clear and serious risk.
6. A policy or objectively reliable guidance concerning the predictive significance of otherwise lawful behaviour would have reduced the risk of arbitrary decision-making and would have assisted accessibility and predictability under article 8. The absence of such guidance created additional doubt, although the claim succeeded in any event on proportionality.
7. The Data Protection Act 1998 and Computer Misuse Act 1990 grounds added nothing on the evidence. Confidentiality was not absolute: disclosure could be authorised or required where a pressing social need made proportionate disclosure necessary.

First-instance judicial review decision. No earlier decision in the same proceedings is stated.