R (on the application of P) v Thames Valley Police
Inclusion of alleged sexual comments in an enhanced criminal record certificate constituted disproportionate interference with the claimant’s Article…
Upholding the claimant’s challenge, the Administrative Court has held that the inclusion of alleged sexual comments in an enhanced criminal record certificate (ECRC) constituted a disproportionate interference with the claimant’s Article 8 rights and the offending references should be removed.
The claimant, now in his fifties, had worked as a chef but also had experience in care work. At the material time he was working as an agency worker at a residential community drug stabilisation and structured treatment programme. The job brought him into contact with adults with alcohol, drug or related mental health problems, people who could be described as vulnerable.
The claimant worked a few shifts and was popular with the residents. However, he was then asked not to return because certain complaints had been made to the manager. The manager would not divulge the contents and the claimant said he did not know what they might be. He then learned through the recruitment agency which had secured him the job that a sexual allegation had been made by a female resident "A".
A fortnight or so later the claimant was arrested and interviewed. The allegation was of conduct by the claimant that would, at its highest, have amounted to a relatively minor sexual assault. The claimant denied the allegation vigorously and gave an explanation as to why "A" might have made up the story. After further investigation the claimant was told that no further action would be taken and received a notice to that effect.
A few months later, the claimant applied for a position with an agency in the care field. He was accepted subject to a satisfactory ECRC. His ECRC gave details of the alleged sexual assault and noted that he had made several sexual comments towards "A" but the precise words or gist were not particularised. The claimant’s challenges direct with the CRB and Information Commissioner’s Office came to nothing.
Some months later, the claimant was offered another job with the same recruitment agency, again conditional on receipt of a satisfactory ECRC. He engaged solicitors who wrote to Thames Valley Police asking for the adverse entry on the ECRC to be removed. That led to a second ECRC, the subject of the current proceedings, being issued.
The senior officer deputed by the chief constable to deal with the matter included in the revised ECRC reference to the nature of the sexual comments allegedly made: "The comments included [the claimant] proposing to staff that he would bring alcohol to a residents’ barbecue and comments about a sexual position, the use of Viagra and prostitutes."
The senior officer then reviewed her decision but found no reason to reach a different conclusion. She noted that although the claimant asserted that the information was untrue, the incidents had been witnessed and formed the basis of the end of the claimant’s employment at the centre. Another senior officer was asked to consider the matter afresh but he also agreed with his colleague’s conclusion that disclosure was appropriate and proportionate.
The issue for the court was whether the inclusion in the ECRC of the wording referred to was fair and proportionate.
The court observed that the inclusion in the ECRC of the disputed wording was "a killer blow" to the claimant’s prospects of working in the caring community, with the senior officer acknowledging that the practical impact would be an extreme reluctance to employ him. That loss of future employment had to be weighed in the balance when determining the risks the claimant might pose in working in the caring community, bearing in mind the reliability of the evidence supporting the information in question.
Mr Justice Foskett observed that the use of the words did not amount to a criminal offence and no physical contact took place between the claimant and anyone to whom they were allegedly addressed. At their highest, the words were "vulgar and explicit". The court noted that they had not been spoken to children and that "it would be surprising if the residential centre had not heard or used words of a similar nature before". The court also noted that "A" was not regarded as vulnerable for the purposes of the protection of vulnerable adults team (POVA) and that it was "difficult to believe that any harm was done by the use of the words highlighted if the words were indeed used".
The judge considered the reliability of the allegations. The way in which the centre manager had investigated the matter was noted, and although the senior officer was entitled to take into account the centre manager’s views, "a more considered view may well have been that there remains doubts about the reliability of the allegation." Further, the claimant’s express denials were not recorded in the ECRC, although that did appear to have been the original intention of the senior officer. Although the senior officer’s internal note of her rationale for disclosure recorded that the behaviour described presented a risk to children and vulnerable adults, the judge observed that there were no obvious grounds for believing any such words would be used amongst children or young adults (the position in which he was seeking employment) and noted again that "A" was not classified as vulnerable.
As to the claimant’s criticism that he had been given no opportunity to rebut the allegations set out in the wording when, at the time, his solicitors were challenging the earlier ECRC, the judge concluded that fairness required that the claimant’s solicitors should have been told what was proposed, even though specific guidance to that effect was not at that time in force.
Taking all matters into account, in particular the "killer blow" effect on the claimant’s future employment prospects, the judge concluded that the inclusion of the wording in question represented a disproportionate interference with his Article 8 rights.
To reinforce his decision, the judge noted that he was considering the issues some five years after the material events had occurred. That would have given the claimant ample time to reflect on the consequences of his admitted engagement with the centre residents on their own level. As the judge noted, "he indicated within days…that he had in effect learned a lesson. I should be most surprised if the ensuing five year period has not reinforced the need for caution." The passage of time, weighed with the other considerations considered by the judge, clearly influenced the final decision.
This interesting case demonstrates the difficult balance between respecting individual rights and the wider protection of others. The task of senior officers in such cases is unenviable.
For further information about Weightmans or to discuss any of the issues in this update, please contact Nick Peel, Partner, on 0151 242 9453 or email firstname.lastname@example.org