P, R (on the application of) v Thames Valley Police

When deciding whether information should be included in an enhanced criminal record certificate, the chief officer must balance the seriousness and reliability of the information, the applicant’s opportunity to answer it, its relevance to the proposed work, the time elapsed and the likely impact of disclosure. The court must determine for itself whether disclosure is a proportionate interference with Article 8 rights, assessing the circumstances existing when the case comes before it. Procedural fairness may require advance notice of proposed adverse material and a meaningful opportunity to rebut it. Disclosure is disproportionate where relatively minor, disputed and potentially unreliable allegations would have a severe and lasting effect on employment prospects without a sufficiently demonstrated risk to vulnerable people.

The claimant sought judicial review of decisions by the Chief Constable of Thames Valley Police to include information in the “Other Relevant Information” section of his enhanced criminal record certificate and to refuse its removal. The certificate referred to allegations that, while working at a residential drug and alcohol treatment centre, he had made inappropriate sexual comments to service users. The alleged sexual assault giving rise to the police investigation had resulted in no further action and was removed from the certificate.

The claimant alleged a disproportionate interference with his Article 8 rights and breach of the common law right to fairness. The central issues were whether the information was sufficiently reliable and relevant to proposed care work, whether he had a fair opportunity to answer it, and whether its disclosure was proportionate.

1. The claim succeeded. The enhanced criminal record certificate should no longer refer to the disputed comments.
2. Under section 115(7)(b) of the Police Act 1997, the decision whether information ought to be included requires a fact-sensitive balancing exercise. Relevant considerations may include the gravity of the material, the reliability of its evidential basis, the applicant’s opportunity to rebut it, its relevance to the proposed employment, the time elapsed and the impact of disclosure on the applicant’s employment prospects and more generally.
3. The ultimate question of proportionality was for the court. The assessment had to be made by reference to the circumstances existing when the case was before the court, while focusing initially on the decision under challenge.
4. The allegations concerned vulgar and explicit comments, not criminal conduct or physical contact with children. Their evidential basis was disputed. Although the senior officer had relied on corroboration by other residents, there had been no police statements or interviews from those residents, and the circumstances raised residual doubts about reliability. The claimant’s express denials had also been omitted from the certificate.
5. Fairness required that the claimant’s solicitors should have been told that these particular matters were proposed for disclosure. They could then have made representations about the evidential foundation. The absence of a revised guidance requirement did not remove the common law obligation of fairness.
6. The alleged comments did not, without more, demonstrate an obvious risk that the claimant would use similar language with children or young adults with autistic difficulties. Weighed against the “killer blow” effect on his employment prospects, the disclosure was a disproportionate interference with Article 8.