SD, R (on the application of) v North Yorkshire Police & Anor

When deciding whether local police information should be included in an enhanced criminal record certificate, the chief officer must assess both its relevance and whether disclosure ought to be made. The decision requires a fair balance between protecting children or vulnerable adults and the applicant’s Article 8 right to respect for private life.

On judicial review, the court conducts a high-intensity review and makes its own proportionality assessment. This is not a merits review. Appropriate weight must be given to the primary decision-maker’s assessment, depending on how properly the relevant factors were addressed. Relevant factors include reliability, gravity, relevance to the post, lapse of time, opportunity to rebut and impact on the applicant.

SD sought judicial review of information disclosed by the Chief Constable of North Yorkshire Police in an enhanced criminal record certificate. The disclosure concerned allegations that, while supervising a college trip involving students aged 17 to 24, he had made sexually inappropriate remarks. A police investigation found no criminal offence, and SD was not placed on either barred list.

SD alleged that the disclosure disproportionately interfered with his Article 8 rights and sought an order quashing it. The Chief Constable relied on the statutory framework, the decision-making records and the Independent Monitor’s support for disclosure. The central issue was whether disclosure was proportionate to the legitimate aim of protecting children.

1. Application dismissed. The disclosure in the enhanced criminal record certificate was proportionate.
2. The statutory scheme required information to be disclosed where the chief officer reasonably believed it relevant to work involving children or vulnerable adults and considered that it ought to be included. The decision required a balance between protection from risk and the applicant’s Article 8 right to privacy. The relevant considerations included the gravity and reliability of the information, the applicant’s opportunity to rebut it, its relevance to the proposed work, the time elapsed and the impact of disclosure, as identified in R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3.
3. The court had to conduct a high-intensity review and make its own assessment of proportionality. That did not amount to a merits review. The weight given to the primary decision-maker depended on whether relevant Convention factors had been properly considered. The Independent Monitor’s view was also relevant, although not conclusive.
4. The allegations were more likely to be true than not, having been supported by statements from staff and students. Although no harm or criminal offence was established, sexually inappropriate remarks by a lecturer in a position of trust, in the presence of 17-year-old students, were sufficiently serious to justify inclusion. The information was directly relevant to proposed work with children.
5. Four or five years was not sufficient to make the information aged, although it would become less significant with further time in the absence of additional information. Post-decision events should generally not be considered when assessing proportionality, subject to exceptional circumstances. The disclosure was accurate, balanced and fair, and recorded SD’s case as well as the reasons for disclosure.
6. The Chief Constable had considered the relevant factors, allowed representations and amended the wording in response. The resulting assessment was entitled to considerable weight, and the court agreed that the protection of children outweighed the interference with SD’s private life.