W, R (on the application of) v Warwickshire Police

Under section 113B(4) of the Police Act 1997, disclosure on an enhanced criminal record certificate involves two distinct questions. First, the chief officer asks whether the information might be relevant. This is a low threshold, and the opinion is reviewable on conventional Wednesbury grounds. Secondly, the chief officer asks whether the information ought to be included. That decision engages Article 8 and requires a proportionality assessment which weighs the applicant’s private-life interests against the protection of children or vulnerable adults. The reviewing court must assess the balance actually struck, rather than merely ask whether the decision was rational. A related tribunal’s factual findings are not binding where the decision-makers have properly considered the different evidence, statutory purpose and proceedings.

The claimant, an experienced teacher, challenged an enhanced criminal record certificate issued after he applied for work involving children. The certificate disclosed four allegations arising during a six-month period in 2002, including allegations that pupils had been assaulted or injured. He had not been prosecuted, and an Employment Tribunal had found that his dismissal was unfair and accepted his account of one incident.

He sought judicial review under section 113B of the Police Act 1997 and damages for alleged breach of Article 8. The central issues were whether the information might be relevant, whether it ought to be disclosed after a Convention-compliant balancing exercise, and what weight should be given to the Employment Tribunal’s decision.

1. The claim was dismissed. The certificate complied with the two-stage statutory scheme in section 113B(4) of the Police Act 1997.
2. At the first stage, the question was whether the allegations might be relevant to the proposed work. The threshold was low. The four allegations, considered individually and as a possible pattern of conduct involving vulnerable pupils, plainly met it. The chief officer was entitled to consider whether the information might be true; the court reviewed that evaluative judgment on Wednesbury grounds.
3. The Employment Tribunal’s decision did not bind the chief officer. Under the principles derived from R (Bradley) v Secretary of State for Work and Pensions [2008] EWCA Civ 36, a decision-maker may form an independent view of a related tribunal’s findings. The rationality of rejecting those findings depends on the statutory context, the nature and basis of the finding, the evidence tested, and the tribunal’s role. Here the Tribunal had considered only one incident, had limited direct evidence, and had not addressed the other allegations or any pattern. The police decision was therefore properly reasoned and not irrational.
4. At the second stage, the police had to decide whether disclosure was proportionate for the particular employment sought. They considered the seriousness, age and evidential weight of the allegations, the claimant’s previously unblemished record, the Employment Tribunal’s decision, the impact on his career, and the risks to children and vulnerable adults. The court applied the more intense proportionality review identified in R (B) v Derbyshire Constabulary [2011] EWHC 2362 (Admin), and concluded that the balance had been struck lawfully. The age of the allegations did not substantially reduce the risk because the claimant had not since worked as a teacher in comparable circumstances.

The claim was dismissed with costs. Permission to appeal could be sought in writing by the date specified in the order.