RK, R (on the application of) v South Yorkshire Police & Anor

Disclosure of information in an enhanced criminal record certificate requires a genuine assessment of proportionality. The chief officer must consider the gravity and reliability of the information, its relevance to the particular employment, the passage of time, the applicant’s opportunity to respond, and the impact of disclosure on the applicant. An acquittal does not automatically prevent disclosure, but it is a significant factor, particularly where the allegations were weak or unreliable. The decision-maker must give coherent reasons, accurately distinguish allegations from proved offences, and consider relevant representations. A decision based on an assumption that rejected allegations were substantiated, without analysing the evidence or the consequences of disclosure, is unlawful.

The claimant, a teacher, had been acquitted in 2005 of six sexual-offence allegations made by pupils. South Yorkshire Police later proposed including information about those allegations, together with other matters, in an enhanced criminal record certificate for prospective teaching employment.

Following earlier judicial review proceedings and a fresh decision-making exercise, the claimant challenged the proposed disclosure. The central issues were whether the police had applied proportionality lawfully, given adequate reasons, considered relevant and irrelevant material, and avoided apparent bias.

1. Proportionality. Under Part V of the Police Act 1997, the chief officer had to decide both whether the information might be relevant and whether it ought to be included. That required a careful proportionality assessment, not a presumption for or against disclosure. Relevant considerations included gravity, reliability, the opportunity to rebut the information, relevance to the particular post, elapsed time and impact on the applicant. The approach described in SSHD ex parte Daly [2001] UKHL 26, R (L) v Commissioner of Police of the Metropolis [2010] UKSC 3 and C v Chief Constable of Greater Manchester [2010] EWHC 1609 (Admin) was applied.
2. The acquittals did not make disclosure automatically disproportionate, but materially affected the reliability and weight of the allegations. The police had treated the allegations as substantiated, failed to analyse the trial evidence, overlooked inconsistencies and possible collusion, and failed to take account of the claimant’s consistent defence. They also failed to give proper weight to the passage of time and the severe impact on his professional career.
3. The audit document and proposed certificate were fundamentally flawed. They confused unproved allegations with offences, relied on subjective assertions rather than reasons, omitted or ignored the claimant’s explanations, and combined unrelated matters in an incoherent way. The decision was therefore unlawful for failure to apply proportionality and for inadequate reasons.
4. The police had relied on irrelevant matters, including videoing lessons and inappropriate language, and failed to consider relevant representations concerning the photograph and the claimant’s association with pupils outside school. The court did not determine apparent bias, but advised that different officers should undertake any reconsideration.
5. The disclosure decision was quashed. South Yorkshire Police were allowed eight weeks to reconsider it. The court indicated, without making a final ruling on the contents of any future certificate, that the acquitted allegations and several minor matters should not be included on the material then available; any reference to dismissal would need to be accurate and accompanied by the decisions not to bar the claimant from teaching.

First-instance judicial review proceedings. The judgment records earlier judicial review proceedings which were compromised, with directions for South Yorkshire Police to reconsider its proposed disclosure.