R v Chief Constable of Cumbria [2013]

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The High Court has ruled that the disclosure of a sexual allegation within a teacher’s Enhanced Criminal Record Certificate (“ECRC”) was a disproportionate and unjustifiable interference with the teacher’s rights under the European Convention on Human Rights 1950 art.8.

The teacher, L, applied for a judicial review of the decision taken by the Chief Constable of Cumbria who refused to remove the allegation from the ECRC. It had been alleged by an 18 year old student of L that L had approached her in a pub and hugged her. She alleged that he had pressed her chest to his on numerous occasions and had propositioned her, offering her £200 to go home with him. L accepted that he had been in the pub on the evening in question but stated that he had not seen the student and had no contact with her.

The police received statements from the student and from L and made the decision that, as the student was 18 years old, no criminal offence was being alleged. Therefore, the case was closed and no charges were made against L. The matter was also referred to the Independent Safeguarding Authority and the General Teaching Council. However, both organisations made the decision that there was no case for L to answer.

When L applied for a position as a supply teacher, an ECRC was requested. The above allegation was disclosed on this ECRC and, as a result, L was unsuccessful in his application. L had been unable to secure another teaching post as a result of the disclosure on his ECRC. He made an application to the Chief Constable of Cumbria for the allegation to be removed from his record. However, the Chief Constable made the decision that the disclosure was reasonable and proportionate so the application was refused. L requested a review of this decision but, again, it was decided that the disclosure was appropriate, necessary and proportionate so the allegation remained on L’s ECRC.

At judicial review, Mr Justice Stuart-Smith held that, even if the student’s allegations were true, the risk to others was slight and was to a very limited class of persons in tightly defined circumstances. The allegation was relatively minor in the overall scheme of sexually inappropriate behaviour and was an isolated incident in L’s otherwise unblemished career. It was decided that, because the allegations had not been fully investigated, an assessment of competing evidence was difficult. Further to this, as the matter had never reached any formal hearing, the evidence obtained by the police had not been tested. Mr Justice Stuart-Smith found that the decision by the Chief Constable to refuse to remove the allegations from the ECRC was a disproportionate and unjustifiable interference with L’s Article 8 rights. He stated that this was particularly the case in a jurisdiction where individuals are generally presumed to be innocent until proven guilty.