QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE KEITH
| The Queen (on the application of John Pinnington)
|- and -
|Chief Constable of Thames Valley Police
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Jason Beer (instructed by The Solicitor to the Thames Valley Police) for the Defendant
Hearing dates: 25 June 2008
Crown Copyright ©
Lord Justice Richards :
"(6) An enhanced criminal record certificate is a certificate which -
(a) gives –
(i) the prescribed details of every relevant matter relating to the applicant which is recorded in central records, and
(ii) any information provided in accordance with subsection (7), or
(b) states that there is no such matter or information.
(7) Before issuing an enhanced criminal record certificate the Secretary of State shall request the chief officer of every relevant police force to provide any information which, in the chief officer's opinion –
(a) might be relevant for the purpose described in the statement under subsection (2), and
(b) ought to be included in the certificate.
(8) The Secretary of State shall also request the chief officer of every relevant police force to provide any information which, in the chief officer's opinion –
(a) might be relevant for the purpose described in the statement under subsection (2),
(b) ought not to be included in the certificate, in the interests of the prevention or detection of crime, and
(c) can, without harming those interests, be disclosed to the registered person."
"(i) The whole process of obtaining an ECRC is initiated by the person to whom the certificate will relate. The certificate is for his purposes to enable him to obtain employment which, at least in practical terms, will not be available to him unless he obtains a certificate.
(ii) The certificate will only be seen by the applicant and his prospective employer.
(iii) The applicant has the opportunity to persuade the Secretary of State to correct the certificate.
(iv) The Chief Constable is under a duty to provide the information referred to in section 115(7). This is subject to the requirement that the information might be relevant and ought to be included in the certificate. What might be relevant and what ought to be included is a matter for the opinion of the Chief Constable.
(v) The applicant is in a position to provide additional information if he wishes, whether in conflict with the certificate or not, to the prospective employer and it is the prospective employer who will make the decision as to whether he should or should not be employed."
"This was obviously required by Parliament because it was important (for the protection of children and vulnerable adults) that the information should be disclosed even if it only might be true. If it might be true, the person who was proposing to employ the claimant should be entitled to take it into account before the decision was made as to whether or not to employ the claimant. This was the policy of the legislation in order to serve a pressing social need …" (emphasis added).
"As already indicated, the Chief Constable starts off with the advantage that his statutory role is not in conflict with article 8, because the statute meets the requirements of article 8(2). It follows also, that as long as the Chief Constable was entitled to form the opinion that the information disclosed might be relevant, then absent any untoward circumstance which is not present here, it is difficult to see that there can be any reason why the information that 'might be relevant', ought not to be included in the certificate. I accept that it is possible that there could be cases where the information should not be included in the certificate because it is disproportionate to do so; the information might be as to some trifling matter; it may be that the evidence made it so unlikely that the information was correct, that it again would be disproportionate to disclose it. These were not, in my judgment, the situations on the facts before the Chief Constable."
"It cannot, in my view, be said that the evidence of possible wrongdoing was so weak, so unreliable or so trifling that it cannot be true or, putting it the other way round, that it does not meet the test laid down by the Lord Chief Justice that it 'only might be true'."
"The applicant has been the subject of three separate allegations of sexual abuse which are alleged to have occurred since July 2000. The allegations were made by three autistic young adult males who were in the care of the applicant in his capacity as a care worker. The alleged abuse consisted of serious sexual interference, including claims that the applicant had raped young adult males in his care whilst on a trip to Wales. The applicant was formally interviewed in relation to the allegations made by one of the three complainants. He denied any wrongdoing. None of the complaints resulted in criminal charges being brought against the applicant."
"The applicant has been the subject of three separate allegations of sexual abuse which are alleged to have occurred since July 2000. The allegations were all made in respect of three autistic young adult males who were in the care of the applicant in his capacity as a care worker. The alleged abuse consisted of serious sexual interference, including claims that the applicant had raped young adult males in his care whilst on a trip to Wales.
The first allegation was made in 2001 by a 21 year old man with autism who made an allegation, using facilitated communication, that he had been abused the year before by Mr Pinnington. This included that his carer, Mr Pinnington, had raped him whilst on a trip to Wales. This allegation was said by the man's mother to have been repeated to her. The police were notified and conducted an interview with the complainant using an independent facilitator. The complainant made allegations in that interview that he had been abused, but failed to identify the person responsible. The complainant had previously made allegations against others, which he had subsequently withdrawn. Mr Pinnington was never interviewed by the police in relation to this allegation and no further action was taken.
The second allegation was made in 2002 by an 18 year old man with autism who alleged to his mother, using facilitated communication, that he had been sexually assaulted by Mr Pinnington on that day and on a number of occasions. The police were notified but were unable to find a suitable independent facilitator to carry out an assessment interview. The complainant was therefore spoken to by officers using his mother as the facilitator and allegations of sexual abuse were repeated. Mr Pinnington was arrested and denied the allegations. No further action was taken.
The third allegation was made during the course of 2002 and 2003 by the brother of the first complainant, a 27 year old man with autism. He made allegations in respect of Mr Pinnington to his support worker, and to his mother using facilitated communication, relating to sexual abuse, including rape whilst on a trip in Wales. The police were notified and commenced an investigation. A Home Office registered intermediary, who specialised in working with those with significant communication disability, interviewed the complainant in 2004 and concluded that he was unable to communicate sufficiently well to provide evidence by way of video interview. However, she expressed the view that there was sufficient confirmation to support the allegations. No police action was taken and Mr Pinnington was never interviewed regarding the matter. "
"Facilitated communication is a process by which a facilitator supports the hand or arm of a communicatively impaired individual while using a keyboard or typing device. It has been claimed that this process enables persons with autism of mental retardation to communicate. Studies have repeatedly demonstrated that facilitated communication is not a scientifically valid technique for individuals with autism or mental retardation. In particular, information obtained via facilitated communication should not be used to confirm or deny allegations of abuse or to make diagnostic or treatment decisions. Therefore, be it resolved that the American Psychological Association adopts the position that facilitated communication is a controversial and unproved communicative procedure with no scientifically demonstrated support for its efficacy."
"It is clear to me that without a great deal more evidence in support of facilitated communication it would be dangerous for a court in family proceedings to rely upon the evidence provided by such a means as supporting allegations of any sort of misbehaviour by anyone in respect of whom the individual with impaired cognitive ability was making those allegations …. In my judgment facilitated communication is a highly controversial method of communication and is one that should be viewed with the greatest possible caution unless or until further evidence is provided …."
The first allegation
The second allegation
"Q. Try and tell me what [the claimant] has done? A. NO
Q. What's he done? A. POO MI PENIS
Q. And what did he do with your bottom? A. PUT POO PO GO RUDE GO PIN
Q. Did he touch your willy? A. I NOT LIKE POO PINIS I NOT DID
Q. [Asked again]. A. YES
Q. Are you angry that he did that to you? A. OYES
Q. Were you in the toilet? A. YES
Q. Was he helping you? A. YES"
The third allegation
Submissions and discussion
Mr Justice Keith :