L, R (on the application of) v Cumbria Constabulary

In a challenge under article 8, the court must decide whether disclosure of information was a justified and proportionate interference with private life. It conducts its own evaluation of the current facts, rather than merely reviewing whether the decision-maker acted rationally or took account of the claimant’s rights. The court should consider all relevant factors, including reliability, gravity, the opportunity to rebut, relevance to the proposed employment, elapsed time, risk of repetition and the impact of disclosure. There is no presumption in favour of disclosure. Information should not be disclosed without a pressing need, and the means used must go no further than necessary to protect vulnerable people.

The claimant, an experienced secondary-school teacher, challenged decisions by the Chief Constable to retain allegations in the “other relevant information” section of his enhanced criminal record certificate. The information concerned an alleged incident involving an 18-year-old pupil whom he had taught. The police had taken no further action, the General Teaching Council had found no case to answer, and the Independent Safeguarding Authority had not placed him on either barred list.

The claimant alleged that disclosure disproportionately interfered with his article 8 right to private life. The court considered the proper approach to reviewing the Chief Constable’s decisions, including whether later evidence and the current consequences of disclosure could be considered, and whether the disclosure was proportionate.

1. Nature of the review. This was an article 8 proportionality challenge, not a conventional Wednesbury challenge. The court had to decide for itself whether the claimant’s rights had been infringed and whether the interference was justified. It was not confined to the information available when the Chief Constable made the decisions. As a public authority under section 6 of the Human Rights Act 1998, the court had to consider the continuing effect of its decision and have regard to up-to-date information.
2. Enhanced criminal record certificates. Section 113B(4) of the Police Act 1997 imposed a low threshold for information which might be relevant, but disclosure also required the Chief Officer to conclude that it ought to be included. The factors identified in R (L) v Commissioner of Police of the Metropolis were important signposts, not an exhaustive list. They included gravity, reliability, the opportunity to rebut, relevance to the job, elapsed time and the impact on the applicant.
3. Assessment of the evidence. The Chief Constable was entitled to assess reliability, but neither he nor the court could properly determine that communication had occurred as an established fact where the allegation had not been fully investigated or tested. The possibility that the allegation was unfounded remained material.
4. Proportionality. The alleged conduct was relatively limited and isolated. Any possible risk of repetition was confined to a small class in tightly defined circumstances and was slight. There was no evidence of a direct risk in the claimant’s teaching employment. By contrast, disclosure was foreseeably a “killer blow” to his employment prospects. The defendant had shown neither a pressing need for disclosure nor that the means used were no more than necessary.
5. Result. The decisions to retain the information constituted disproportionate and unjustifiable infringements of article 8. The challenge succeeded. The court did not direct the Chief Constable how to edit the certificate; a fresh lawful decision was required.