Through Judicial Review proceedings, the Applicant (P) – represented by Jessica Russell-Mitra – successfully struck down the decision of the Chief Constable of Thames Valley Police to include unproven allegations in his Enhanced Criminal Record Certificate (ECRC).

During his previous employment as a care worker, P had been the subject of accusations of sexual assault and inappropriate behaviour.  The Court noted that the assault allegations were fully investigated, unsupported by other witnesses and eventually no prosecution arose as there was “no case for him to answer”.  The reference to the assault was removed but the Chief Constable refused to remove other complaints about P’s conversations with service users and staff about inappropriate matters.

P complained, and further argued that he had not been given a proper opportunity to rebut the allegations.

Agreeing that the inclusion of such information effectively amounted to a “killer blow” to P’s prospects of future employment in care work, the High Court was persuaded to examine the way in which the Chief Constable had considered the reliability of the information disclosable to future employers.

At paragraph 25, Foskett J commented:

…How reliable was the information that they were used and what opportunity did the Claimant have to rebut the allegations?  …The senior officer only included in the information matters that could be corroborated by others.  Whilst, as I have said previously, that was an entirely fair way of going about the decision-making process, that process did require also the need to bear in mind that all of the other residents were themselves known to the police and I have detected no critical analysis of the veracity of each of the others by the officer.

Having heard detailed submissions about the unreliability of the allegations and the fairness of the Chief Constable’s decision, Foskett J held, at paragraph 29:

Putting together all these various factors – and, of course, giving such weight as I can to the experience of the senior officer in issues such as these – I am of the view that the inclusion of these matters (which, without diminishing them, are hardly at the most serious end of the relevant spectrum), the basis for which is disputed and is arguably unreliable, when judged by reference to the “killer blow” effect that they must have on the Claimant’s future employment prospects, does represent a disproportionate interference with his Article 8 rights.

The High Court concluded that the ECRC should therefore exclude any reference to such matters.

Find the full judgment here.