To disclose or not to disclose?

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In the case of R (AB) v Chief Constable of Hampshire Constabulary [2015] EWHC 1238 (Admin) the High Court has ruled that disclosure of safeguarding concerns about a teacher by the police to a local authority designated officer was unlawful because the police failed to have regard to the teacher’s rights to a private life.

Relevant facts

AB, a qualified teacher working at a college was issued with a warning for unacceptable use of Facebook and breaching health and safety regulations during a science lesson. AB was later dismissed for gross misconduct based on findings of an earlier hearing that his comments to students could be construed as inappropriate and of a sexual nature and his conduct was an inappropriate sexual response.

AB appealed this decision, although the governors of the college dismissed AB’s appeal.   The Independent Safeguarding Authority was informed of AB’s dismissal but following their enquiries decided that it would not be appropriate to include AB on the Children’s Barred List or the Adults’ Barred List.

During the disciplinary proceedings against AB, a police officer working in child abuse investigations visited the college in relation to the dismissal of another teacher where he was told of the on-going disciplinary proceedings against a teacher by the college principal. Following AB’s dismissal, the college principal notified the police officer that a teacher was dismissed for inappropriate conduct, which prompted the police officer to seek further details including the name of the teacher. The college principal provided this information and the police officer recorded this information on their database.

AB was later employed at a girl’s school. The police officer found out about AB’s employment at a later date. Once in possession of this information, the police officer sought advice whether information about this matter should be shared with the local authority designated officer (LADO) and acting upon advice contacted LADO to share this information. As a result of this disclosure, AB was suspended from his employment on the basis that the school had received allegations that he had acted inappropriately towards pupils in previous employment pending an investigation into the matter.

In response AB made a subject access request and was informed that the source of the information was the police officer. AB then complained to the police officer’s professional standards department on the basis that the police officer had acted outside the standard procedures. Following an investigation, it was decided that there was no wrongdoing on the part of the police officer, as the police’s overarching obligation must be towards safeguarding children and sharing information with the relevant agencies. With regard to DBS, it was stated that it was not relevant to make a disclosure due to no specific offence being disclosed or alleged by the police. AB appealed this decision but this was dismissed, following which AB brought judicial review proceedings.

Judgment of the High Court

At the outset the Court pointed out that the “retention and disclosure by public authorities of information concerning allegation of non-conviction misconduct by an individual will engage his/her Article 8 rights”. As such it will be necessary for a public authority to show that its activities in relation to that information are in accordance with the law, necessary in a democratic society and the decision to disclose the information is proportionate.

Under the Data Protection Act there are exemptions such as “prevention or detection of crime” which justify disclosing relevant information, although it is necessary for a decision maker to examine the context in which she or he is making that decision. The police officer was disclosing information involving safeguarding of children, which also impacted upon the teacher’s employment and even though this was a proactive disclosure, it was necessary for the police officer to have due regard to provisions governing enhanced criminal record certificates to ensure a proportionate decision was reached.

With regard to factual information regarding the teacher’s non-conviction misconduct, the Court did not accept that this was of a sexual nature as there was a key difference between the information the police officer noted and that contained in the disciplinary proceedings by the college. Working within the area of child protection, it would have been necessary for the police offers to consider whether it was necessary and proportionate to disclose the information. Undertaking a procedural step to check what information had already been disclosed through any enhanced criminal record certificate would have sufficed, which would have shown that this information was not disclosed and that further enquiries should be made. While the police have a duty to fulfil in disclosing information which relates to safeguarding and promoting of children’s welfare, they are also under an obligation to make decisions that respects the right to privacy. However, in this case “because of significant failures to follow appropriate procedures” false information was provided, which due to its apparent seriousness it was inevitable that it would be shared with the school.

Ultimately, the Court said that the information disclosed here was of “far greater seriousness than that which accorded with reality” and the police officers failed to make the necessary enquiries, which they were required to make so that a decision complaint with Article 8 was made. The Court also found that the “evidential deficit concerning the disclosure decision” applied even more so to the police complaint decision. This is because even though it became apparent that the false disclosure made by the police officer was at the heart of the complaint, the police failed to conduct an appropriate and sufficient investigation. The investigation that was conducted consisted of only interviewing police officers within the organisation, which made the investigation so procedurally unfair that it rendered the resulting decision made unlawful.

Accordingly, the disclosure decision and the complaint decision were found to be unlawful.

Likely impact

This case demonstrates the importance of fact checking when making disclosures to ensure that false allegations are not disclosed, even for those fulfilling child safeguarding duties. Additionally, it is arguable that professionals in education and local authorities should show greater care even when sharing information informally as such informal disclosures may lead to false information being compiled and formally disclosed.

This is also an important case because it highlights the different regimes in force when disclosing information and the need to ensure that disclosure is only made when all relevant checks have been appropriately conducted to reach a conclusion that disclosure is lawful, necessary and proportionate. Also that those in charge of handling complaints need to ensure that they conduct a fair investigation so that decisions reached are lawful.

Forbes Solicitors has experience in assisting a range of organisations including businesses, schools, charities and local authorities with data protection matters. If you would like advice on any data protection related issue please contact Daniel Milnes.

Nat Avdiu

About Nat Avdiu

Nat Avdiu is a Paralegal in the Contracts and Projects team at Forbes Solicitors. Nat provides updates for clients on a range of issues including: governance, data protection and freedom of information, procurement and charity law.
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