SD, R (On the Application Of) v The Chief Constable of North Yorkshire & Anor

Including unsubstantiated allegations in an enhanced criminal record certificate requires a fact-sensitive proportionality assessment under Article 8. Relevant considerations include gravity, reliability, the opportunity to respond, relevance to the proposed work, elapsed time and likely impact. A decision by the Independent Safeguarding Authority not to bar an individual is relevant, although not conclusive. It must be considered both when deciding whether to disclose and when deciding the terms of disclosure. Disclosure of allegations and a denial, without reference to that decision, may be unbalanced and disproportionate. On high-intensity review, the court must assess proportionality itself and should give reduced weight to a decision-maker who omitted a relevant factor.

SD, an education-sector worker, challenged an enhanced criminal record certificate issued after a police investigation into alleged sexually inappropriate comments made during a college trip. The allegations were unsubstantiated, no crime was found, and the Independent Safeguarding Authority had decided not to place him on a barred list. The Chief Constable disclosed the allegations and SD’s denial but did not mention that decision. The Administrative Court dismissed the judicial review claim: [2015] EWHC 2085 (Admin). The appeal concerned whether the disclosure and the judge’s review properly addressed Article 8 proportionality and the relevance of the ISA decision.

Appeal allowed; the enhanced criminal record certificate was quashed. Beatson LJ gave the leading judgment, with Lewison LJ and Hildyard J agreeing.

1. The assessment of an enhanced criminal record disclosure requires a proportionality balance between protecting vulnerable groups and the individual’s Article 8 rights. The guidance in R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3, [2010] 1 AC 410 identifies relevant considerations including gravity, reliability, opportunity to rebut, relevance to the proposed employment, elapsed time and impact on the applicant. The list is not exhaustive.
2. The ISA’s decision not to bar the individual was relevant, though not conclusive. It had to be considered both when deciding whether to disclose anything and when deciding whether disclosure without reference to that decision was proportionate. The failure to consider it was a reviewable error.
3. Where the primary decision-maker has not properly addressed relevant ECHR values and interests, its conclusion attracts less weight. The reviewing court must make its own proportionality assessment. The judge therefore erred in giving the Chief Constable’s decision considerable weight.
4. Some disclosure was justified because the allegations were reasonably reliable and relevant to work with children. However, disclosure of the allegations and SD’s denial, without mentioning the ISA’s decision, was unbalanced and disproportionate, particularly in light of the lapse of time, absence of further incidents and likely career impact. A careful reference to the ISA decision could have enabled a fairer and more informed assessment by the employer.
5. The court refused to determine whether the independent monitor’s post-disclosure review formed part of a multi-stage process permitting reliance on post-decision material. The issue had been raised improperly for the first time on appeal, the monitor was not joined, and it was left for a properly constituted case. The court also observed, obiter, that a more finely calibrated disclosure was not necessarily required merely because employers may be risk-averse.

• Court of Appeal (Civil Division): Appeal allowed. The order below was set aside and the enhanced criminal record certificate was quashed.
• Administrative Court, Queen’s Bench Division: HHJ Behrens dismissed SD’s judicial review claim: [2015] EWHC 2085 (Admin).