AB, R (On the Application Of) v The Chief Constable of Hampshire Constabulary

The police have a common-law power to disclose relevant information to appropriate parties for legitimate policing or public-protection purposes. Such disclosure engages Article 8 and must be lawful, necessary and proportionate. Safeguarding duties do not remove the obligation to assess the accuracy, relevance, necessity and proportionality of the proposed disclosure. Where disclosure may affect employment, decision-makers should have regard to the criteria and safeguards governing enhanced criminal-record disclosures, including the reliability of the information and the person’s opportunity to respond. A failure to make basic enquiries which would have exposed materially false information renders the disclosure unlawful. A related complaint investigation is also unlawful if it fails to investigate the alleged falsity fairly and sufficiently.

The claimant was a teacher dismissed following disciplinary findings concerning inappropriate comments and conduct towards pupils. The Independent Safeguarding Authority and General Teaching Council subsequently found insufficient grounds for barring or professional-conduct proceedings.

After learning that the claimant worked at another school, a police officer disclosed information to a Local Authority Designated Officer. The information inaccurately suggested that the claimant had been dismissed for touching pupils and causing them to touch him. The claimant later complained under the Police Reform Act 2002. The complaint and appeal were rejected.

The claimant sought judicial review of both the original disclosure and the police complaint decisions. The central issues were whether the police had power to make the disclosure, whether it complied with Article 8, whether the complaint investigation was lawful, and whether permission and an extension of time should be granted.

1. Power and legal framework. The retention and disclosure of non-conviction information engage Article 8. A disclosure must have a basis in domestic law, pursue a legitimate aim, be necessary in a democratic society and strike a fair balance between competing rights. The common law empowers the police to disclose relevant information to relevant parties where necessary for policing purposes, including public protection. The Data Protection Act 1998, together with applicable statutory and administrative codes, supplies safeguards against arbitrary or abusive interference.
2. Necessity and proportionality. Disclosure to a Local Authority Designated Officer for safeguarding purposes did not absolve the police from making their own Article 8-compliant decision. Although the Police Act 1997 and its guidance did not directly govern the officer’s decision, their criteria should have been considered for consistency and proportionality, particularly the seriousness, relevance, currency, credibility and impact of the information.
3. Unlawful disclosure. The officer and supervising officer should first have checked what information the police disclosure unit had considered or disclosed, examined the contemporaneous records, and made further enquiries of the former employer and, if necessary, the claimant. Those enquiries would have exposed that the information relied upon was materially false. The failure to make them meant that the disclosure was made on an entirely false basis. The disclosure to the Local Authority Designated Officer was therefore unlawful.
4. Complaint decision. The police investigation failed to address the absence of contemporaneous support for the alleged information, its inconsistency with the records, and the significance of the disclosure unit’s decision not to disclose information. The failure to contact the former employer, despite the seriousness of the complaint, made the investigation procedurally unfair and the resulting decision unlawful.
5. Alternative remedy and time. The availability of remedies under the Data Protection Act 1998 did not oust the jurisdiction to grant judicial review. Permission was appropriate because the claimant had pursued a different statutory complaint route and the case raised important issues concerning police disclosure. Time was extended for the challenge to the original disclosure because pursuing that alternative route provided an objective explanation for delay.
6. Orders. Declarations were granted that both the original disclosure decision and the police complaint decision were unlawful.

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