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R (on the application of S) (Claimant) v CHIEF CONSTABLE OF WEST MERCIA (Defendant) & CRIMINAL RECORDS BUREAU (Interested Party_ (2008)

[2008] EWHC 2811 (Admin)

QBD (Admin) (Wyn Williams J) 18/11/2008

POLICE - CRIMINAL PROCEDURE

DECISIONS : DISCLOSURE : ENHANCED CRIMINAL RECORD CERTIFICATES : MISTAKEN IDENTITY : REASONABLENESS OF DISCLOSURE OF CRIMINAL CHARGES

Details of offences with which an individual had been charged, but acquitted, were wrongfully included in his enhanced criminal record certificate as, in deciding to disclose those details, the decision-maker failed to have regard to the reasons for the acquittal and it was irrational or unreasonable to conclude that he had committed the offences.

The claimant (S) applied for judicial review of the decision of the defendant chief constable to disclose in his enhanced criminal record certificate details of charges brought against him for five public order offences. S had been charged with the offences, which involved a male exposing himself to females on different occasions. He had presented evidence to the magistrates to show that he had been elsewhere on one of the dates concerned. As a result, he had been acquitted. When S later applied for a job as a coach at a local rugby club, he had applied for a copy of his certificate. The criminal records bureau had lost the file relating to the criminal proceedings but a member of the chief constable's staff (B) decided to disclose information stored in computer records. That information comprised details of the offences, but not the proceedings, so B had been unaware of the reasons for the acquittal. The deputy chief constable upheld the decision to disclose the information, considering that the allegations might have been true and that it might be relevant to S's suitability to coach children. However, a re-worded, more detailed entry for the certificate was proposed. S submitted that, as the magistrates had acquitted him of the charges and in their reasons had effectively exonerated him, it had been irrational or unreasonable for the chief constable or his delegated subordinates to conclude that he might be guilty of the offences.

HELD: (1) B's decision had been unreasonable in the Wednesbury sense. In the circumstances, no decision-maker could have made a decision to the effect that the allegations made against S might be true, when they had no information to explain why S had been acquitted by a criminal court after a trial on charges founded upon the allegations. Furthermore, a reasonable decision-maker would not have disclosed the existence of the allegations without first taking reasonable steps to ascertain whether they might be true. B had failed to take into account why S had been acquitted; she should have made enquiries of the prosecuting advocate at the very least, and then taken account of such information, before deciding whether to disclose the allegations. (2) The case against S had never been presented on the basis that there had been more than one person involved, and such a scenario seemed wholly improbable. The deputy chief constable had acted unreasonably or irrationally if his approach had been that S might have committed some, but not all, of the offences. Very strong grounds existed to suggest that S had not been the offender. It had been recognised that a good reason for non-disclosure of an allegation which might otherwise be justifiably disclosed would be where the chief constable formed the view that the case probably involved mistaken identity, R (on the application of X) v Chief Constable of the West Midlands (2004) EWCA Civ 1068, (2005) 1 WLR 65 applied. A reasonable decision-maker in the position of the deputy chief constable would have concluded that it was probably a case of mistaken identity. It had, therefore, been irrational or unreasonable in the Wednesbury sense for the deputy chief constable to conclude that it might be true that S was the offender. The fact that an employer could legitimately elicit relevant information by appropriate questions was not determinative of whether the chief constable should give disclosure.

Judgment for claimant

Counsel:
For the claimant: Peter Prescott QC
For the defendant: Georgina Kent
For the interested party: No appearance or representation

Solicitors:
For the claimant: Beech Jones De Lloyd
For the defendant: In-house solicitor