England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/07/2008

Lord Justice Richards :

1. This claim for judicial review concerns the issue of an enhanced criminal record certificate (to which I will refer simply as a "certificate") pursuant to s.115 of the Police Act 1997. In 2005 the claimant was the deputy principal of a college for young autistic adults in Oxfordshire. Following a reorganisation at work, his employment was to be transferred to a national charity which had a policy of requiring employees to possess a "clean" certificate. The claimant applied to the Criminal Records Bureau ("the CRB") for a certificate, but the certificate issued to him recorded details of three allegations which had been made against him. This resulted in his dismissal from employment. Leaving aside the issues raised by the three allegations, he was and is of good character.
2. The claim form identifies the certificate as the subject of the challenge, but the true target is the decision by the police to provide the information which was included in the certificate. That decision was taken by Mr Francis Habgood, Assistant Chief Constable of the Thames Valley Police, to whom the relevant function had been delegated by the Chief Constable. Thus it is the Chief Constable, not the CRB, who is named as a defendant to the claim.

Statutory framework

3. Section 115 of the 1997 Act provides in subs.(1) that the Secretary of State shall issue an enhanced criminal record certificate to any individual who makes an application in the prescribed form, countersigned by a registered person, and who pays the relevant fee. The functions of the Secretary of State under the legislation are discharged by the CRB.
4. By subs.(2), an application must be accompanied by a statement by a registered person (in this case the employer) that the certificate is required for the purposes of an "exempted question" asked, so far as relevant, "in the course of considering the applicant's suitability for a position within subsection (3) or (4)". An "exempted question" is defined in s.113 as a question in relation to which s.4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 has been excluded by an order made by the Secretary of State. Section 4(2) of the 1974 concerns non-disclosure of information about spent convictions or circumstances ancillary thereto. The certificate in this case was required for an exempted question.
5. A position is within subs.(3) if it involves regularly caring for, training, supervising or being in sole charge of persons aged under 18. A position is within subs.(4) if it is of a kind specified in regulations made by the Secretary of State and it involves regularly caring for, training, supervising or being in sole charge of persons aged 18 or over. The claimant's position at the college fell within subs.(4).
6. Subsections (6) to (8) provide as follows:

"(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."

7. The information in this case was provided under subs.(7). I have quoted subs.(8) only because it is touched on incidentally later in this judgment.
8. Section 117 provides that where an applicant for a certificate believes that the information contained in the certificate is inaccurate he may make an application in writing to the Secretary of State for a new certificate; and where the Secretary of State is of the opinion that the information in the certificate is inaccurate he shall issue a new certificate. It was held in R (B) v Secretary of State for the Home Department [2006] EWHC 579 (Admin) that the duty of the Secretary of State under that section is to determine the accuracy of the fact that allegations have been made, not to consider whether any allegations made have any foundation. On that construction, the section has no application to the present case, and it is not suggested by the defendant that recourse to the Secretary of State under the section provided an appropriate alternative remedy.
9. Guidance on the operation of the relevant provisions is contained in Home Office Circular 5/2005, Criminal Records Bureau: Local Checks by Police Forces for the Purpose of Enhanced Disclosures. I shall need to refer to a part of the guidance when considering the claimant's case.
10. The legislative scheme and policy were considered by the Court of Appeal in R (X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65. Lord Woolf CJ, giving the leading judgment, noted the following significant aspects of the scheme (at para 18):

"(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."

11. At para 36 Lord Woolf stressed that there is no presumption against disclosure by the Chief Constable. He said that having regard to the language of s.115 "the Chief Constable was under a duty to disclose if the information might be relevant, unless there was some good reason for not making such a disclosure". He went on to say in para 37:

"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).

12. Lord Woolf considered the statutory scheme to be compatible with article 8 ECHR, but accepted that article 8 might still have a role to play in relation to the individual disclosure decision by the Chief Constable. He expressed the point in this way (para 41):

"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."

13. The facts in that case were that the claimant had been charged with offences of indecent exposure but the proceedings had subsequently been discontinued when the complainant failed to identify him. The claimant had been dismissed from his employment as a social worker and had applied for another social work position. The Chief Constable considered the question of proportionality but was of the opinion that there should be disclosure. At para 43 Lord Woolf described that decision as unsurprising, since if the claimant was guilty of the conduct alleged against him it would be highly relevant to the question of his employment with children or vulnerable adults. It was information of which the prospective employer should be aware, together with any additional information which the claimant might want to place before him. Lord Woolf also recognised, however, that despite the claimant's ability to have the certificate corrected and his opportunity to put forward his explanation, "it is probable that he still would not obtain employment, as it is unlikely the employer would be prepared to take the risk".
14. On the other hand, Lord Woolf said at para 44 that the claimant's position would be no worse than if the prospective employer had asked him the question, which would be in accord with good employment practice, as to whether he had ever been charged with any criminal offence. The claimant would have had to answer that question honestly. This went to the heart of the case. The information which was disclosed was information which a responsible employer in this field would want to know before making a decision as to whether to employ the claimant. The claimant was seeking to prevent that information being available. The making available of that information in accordance with the law could not be contrary to art 8(2).
15. Lord Woolf concluded at para 47 by saying that the statute properly conferred the responsibility of forming an opinion on the Chief Constable and, since he had formed the opinion perfectly properly that certain information might be relevant, it was not for the courts to interfere. The Chief Constable should consider questions of fairness and if he had come to the conclusion that the claimant should have an additional opportunity to reconsider the matter, then that would be perfectly in order. However, since he had not formed that opinion, there was no legal obligation on him to approach the claimant again. He had to be judged on the material which was actually available to him.
16. In R (B) v Secretary of State for the Home Department (cited above), Munby J summarised the legislative policy as being "that information which 'might be true' should be disclosed, that the decision whether or not to disclose is one for the chief officer of police, and that the ultimate decision as to what use to make of the information is one for the prospective employer" (para 51). He expressed agreement with the refusal of permission in that case to bring a claim against the Metropolitan Police Commissioner, saying that the Commissioner "was plainly entitled to conclude that the allegation against B was not so obviously devoid of substance that it ought not to be disclosed. He was … entitled to conclude that the allegation might be true, in the sense used by Lord Woolf in R (X) … and accordingly entitled to conclude that it 'might be relevant' within the meaning of section 115(7)" (para 54). Munby J went on to refer to a passage in the judgment of Bean J refusing permission (see [2005] EWHC 3212 (Admin)), which included the following:

"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 disclosure

17. The certificate originally issued to the claimant on 13 September 2005 contained the following statement of information disclosed "at the discretion of the Chief Constable" (but in fact, as explained above, by decision of the Assistant Chief Constable):

"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."

18. Following a letter before claim, the Assistant Chief Constable reviewed his decision in December 2005. The outcome of the review was to amend the form of words used in the disclosure so as to refer to allegations made "in respect of" three autistic young adult males, rather than "by" them; but that was the only change agreed at that time.
19. A further, lengthy letter before claim was written on 3 March 2006. By this time the claimant had been dismissed from his employment. The letter explained that he had been advised that he had no reasonable prospect of success in a claim for unfair dismissal.
20. The defendant's immediate response was to await the outcome of cases then pending in the Administrative Court, namely R (L) v Commissioner of Police of the Metropolis and R (B) v Chief Constable of Staffordshire Police, in which Munby J handed down judgment soon afterwards (see [2006] EWHC 482 (Admin)). Substantial delay was then caused by waiting for the outcome of an independent investigation into related complaints made by the claimant against Oxfordshire Social Services about the procedures followed in investigating the various allegations. Those complaints were upheld in part.
21. The question of disclosure was reviewed further by the Assistant Chief Constable in the light of the additional material available. The decision reached, as communicated by letter dated 9 February 2007, was that disclosure should still be made but that in fairness to the claimant the information appearing on the certificate should include additional detail, to place the allegations in context and to make it clear that some of the claimant's complaints about the way they were investigated had been upheld. The proposed amended wording of the information to be disclosed was as follows:

"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. "

22. The claimant's solicitors were given an opportunity to make further representations on the proposed wording, but their further correspondence related to the procedures adopted and to the principle of disclosure rather than to the wording; and they then commenced the present proceedings rather than continuing the dialogue.
23. The Assistant Chief Constable has made a witness statement in which he explains the decision-making process and exhibits documents taken into account at each stage of it. He has also included a substantial number of documents seen by him only since the date of the 9 February 2007 decision. He states that nothing in those documents has caused him to change his view about the disclosure in this case.

The issues

24. The claimant's primary contention is that none of the allegations should have been disclosed at all, on the basis that they were not relevant because they lacked cogency and credibility and, on a properly objective and informed assessment, no-one could reasonably have believed that any of them might be true.
25. The alternative and secondary contention is that, if disclosure was necessary, it should have been limited in its scope and its relevance ought to have been properly explained to the employer, which was not done.
26. A number of other submissions originally included in the grounds of claim were not pursued at the hearing before us.

Facilitated communication

27. The relevant allegations were made to a large extent by the use of "facilitated communication". This is a method by which persons with a severe communication impairment are enabled to communicate through supported pointing at objects, pictures, words or letters (in particular, via a board or a computer keyboard). The facilitator may give support physically (to the hand, arm or shoulder) and/or emotionally, in terms of encouragement. There is, however, a serious risk of the content of the communication being affected by the unconscious actions of the facilitator. Grave reservations about the process were expressed by Dame Elizabeth Butler-Sloss P in Re D (evidence: facilitated communication) [2001] 1 FLR. In her judgment she referred inter alia to a resolution in 1994 by the American Psychological Association which stated in its final paragraph:

"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."

28. There was nothing before the court in Re D to show that the view of the Association had been disproved. In those circumstances Dame Elizabeth stated (at 151D-G):

"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 …."

29. We have not been shown anything to justify a less cautious approach towards allegations of misbehaviour elicited through facilitated communication. The material before the court does, however, include an overview, dated 28 February 2001, of the interpretation and use of facilitated communication in circumstances where controversial information has been expressed. The document was written by the Facilitated Communication Co-ordinator for the unit at which the claimant was employed. It explains that all controversial information (such as allegations of the kind made in this case) must be validated before action is taken. This is achieved by a second, "clean" facilitator who is unaware of the content of the original communication and who, in effect, goes through the process again with the user. The document also stresses that stringent supervision of the strategy must be employed, including thorough training and monitoring of the facilitator. It summarises the procedures to be followed both at the stage of initial communication and at the stage of validation. It states that appropriate action will be taken if the communication is essentially the same to both facilitators.

The first allegation

30. The first allegation was made by A, a severely autistic young man who was approximately 20 years old but variously assessed as having a development age of less than 3 to 9 and as having an age equivalent of less than 3 years on language development. He was undergoing, or had undergone, testosterone growth hormone treatment which would have increased his sexual awareness and capacity.
31. From October 2000 to mid 2001, against a background of a strong and repeated interest in sexual matters, A made a series of allegations that he had been sexually assaulted while on a holiday in Wales earlier in 2000. First, on 6 November, he said that a care worker called Gary "fucked me up the bum" in the gardens while the claimant was in the house with others. About a week later he said he had told lies about Gary. Two weeks after that, at the beginning of December 2000, he said it was or might be his brother C who had abused him in Wales. A week later he said that his allegation against C was a lie to get C into trouble and he withdrew it. Within less than a fortnight he said that "dad is my abuser" and he subsequently alleged that his father abused him when he was young. In the first part of 2001 he made verbal sexual advances towards a support worker called Philip, said he wanted to have sex with a support worker called Liz, accused Liz of having sexually abused him, and told Philip that if Philip would not have sex with him "I will destroy you like Liz, [C] and dad". When Philip told him in mid-March that their chats were being recorded, A said it was "very mean but it must be done to protect you and other staff from allegations I might make in the future".
32. On 8 June 2001 A spoke for the first time of abuse by the claimant while on the holiday in Wales. On 11 June A repeated his allegation about the claimant, giving a graphic description of oral sex with the claimant, expressing the worry that he had caught AIDS from the claimant, and saying that he had taken so long to come out with this allegation because he had hoped to warn the claimant by his false allegations without hurting him. On 14 June A said that this time his allegation was true: he had not wanted to tell lies before but "I was accusing anyone who came into my head to try and forget that it was him". A week later he said that the claimant had raped him in his bedroom in Wales, and he repeated his request for an AIDS test "as he stuck his hard cock up my backside". A few days after that he said he wanted to retract his allegations about others but the claimant had abused him. On 29 June he appeared to retract his allegation about the claimant as well, saying "Truth is that I just accused [the claimant] with hope of getting a lot of people to be kind to me".
33. The allegations referred to above were all made through facilitated communication, the facilitator being the support worker Philip. A memorandum by Philip dated 18 June 2001 records that Philip did not prompt A, ask him any questions or give any opinion. It also states that when the allegation of abuse by the claimant was first made on 8 June, Philip told A that this was a serious allegation and that he would want A to confirm what he had said. Philip then asked A's mother to talk to A in another room. Philip did not tell her about the allegation A had made. She was able to verify what A had told Philip about the claimant.
34. On 16 June the matter was reported to the police. An initial visit was paid to A and his family on 29 June. On that occasion, and possibly also on 18 July (the dates are not entirely clear), A said repeatedly that the claimant had abused him. When asked about going to court, he said: "Getting serious - very bad of me but the truth is that [the claimant] did nasty things to me but not the things I accused him of". The facilitator this time was A's mother.
35. On 2 August a video interview was conducted with A, using an independent facilitator whom he had previously met. A made an allegation of abuse but did not identify the claimant as his abuser. The police investigation was subsequently terminated and the crime report recorded that the claimant had been "eliminated". Internal inquiries were then conducted by the claimant's then employers, the conclusion of which was that the claimant was reinstated.
36. Following a referral of A to her in October 2001, a psychosexual therapist by the name of Ann Geary recorded the opinion that he had been telling the truth about the events that had happened to him. A consultant psychiatrist subsequently asked about the effect of A's testosterone on his sexuality stated that it was impossible to say whether it was relevant to his allegations of abuse but that it would not be surprising if his allegations were "of doubtful validity".

The second allegation

37. The second allegation was made by another young man with autism, B. On 2 July 2002 B indicated to his mother, through facilitated communication using a light writer, that he had been sexually assaulted by the claimant that day at the centre where the claimant worked, and that something had happened on three previous occasions. The allegation was made after B had returned home from a trip in a very distressed state.
38. The police were contacted later that day. A medical examination of B on the following day provided no evidence that B had been abused. It was only on 23 August that an assessment interview was conducted with him. Unsuccessful attempts had been made to find a "clean" facilitator for the interview, and in the event the interview was conducted by two police officers, with B's mother facilitating. The following is a selection of questions and responses at the interview, it having been established that they were talking about the claimant:

"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"

39. The claimant was interviewed voluntarily under caution and denied any wrongdoing. The case was subject to a decision to take no further action.
40. The claimant subsequently complained about the police investigation. Parts of the complaint were upheld by the Thames Valley Police, who accepted that the investigation had been below standard and available lines of enquiry had not been followed; there had been a failure to submit forensic samples for analysis; and there had been a failure to establish a link with the similar investigation relating to A. A further part of the complaint, relating to the use of facilitated communication, was not accepted by the police force but was upheld by the Police Complaints Authority on appeal. The Authority accepted the claimant's evidence that he had told the investigating officer that facilitated communication was totally discredited and had referred to the decision in Re D; and the appeal was upheld in respect of the officer "knowingly using an unacceptable method of communication".

The third allegation

41. The third allegation was made by C, the older brother of A who made the first allegation. C made his allegation first during a session with the psychosexual therapist, Ann Geary, in February 2002, when he stated inter alia that the claimant had said to him "feel this" and had put his penis in his mouth. Between then and October 2003 he made similar allegations on a number of occasions. He also drew a number of pictures in apparent support of the allegations, though it is impossible to assess their significance without expert assistance. In addition, reference is made to a letter to Ann Geary in which he referred to anal rape and later mentioned the claimant, but it is fair to say that the letter does not contain an express linkage between the claimant and the alleged assault. Ann Geary described these various matters in a witness statement in which she said that C was not consistent, but she had no reason to doubt his truthfulness and she believed the allegations. There is nothing in her witness statement to indicate that the allegations were made to her by means of facilitated communication.
42. On a number of occasions C also made allegations to his mother, by means of facilitated communication, that the claimant had raped him and committed other sexual assaults on him. On one occasion reference was made to this happening in the house in Wales.
43. In late October 2003, following C's repetition of an allegation of oral and anal rape by the claimant, his mother involved the police. There was then a very long delay before C was interviewed. Eventually, in the summer of 2004, the police made contact with Dr Janet Larcher, described as a Home Office registered intermediary who specialises in communication with those with significant communications disability. She had two sessions with C in October 2004, at the end of which she concluded that he was unable to communicate sufficiently well to provide any evidence by way of video interview. In her notes about the meetings she described facilitated communication as a red herring, saying that when C wanted to talk it was not difficult to understand him. The matter was not pursued by the police. No crime number was allocated to the case and the claimant was not interviewed. He was made aware of the investigation only in the course of informal discussions in April 2005.
44. Whilst Dr Larcher did not think it possible for the matter to proceed to a video interview, she expressed the opinion that the material she had seen provided "overwhelming confirmation" that the claimant was sexually abusing C. She subsequently confirmed that opinion, saying that she "no doubt" that C had been abused by the claimant.

Submissions and discussion

45. For the claimant, Ms Tania Griffiths QC did not take issue with what was said by the court in R (X) v Chief Constable of the West Midlands Police (above) about the legislative scheme. Thus she accepted that the central question for the Assistant Chief Constable in the present case was whether the allegations "might be true" (see per Lord Woolf in para 37 of R (X) v Chief Constable of the West Midlands Police, quoted above).
46. She made various submissions to the effect that the police had to have reasonable grounds for believing that the allegations might be true, and that mere suspicion was not enough. She sought to derive support from Home Office Circular 5/2005, in particular the statement at para 9 that "so far as the police are concerned, information should only be disclosed if there is clear reason to believe that it might be materially relevant – i.e. not fancifully, remotely or speculatively relevant but materially relevant". She also referred to Gogay v Hertfordshire County Council [2000] IRLR 703, in which Hale LJ stated at paras 46-49 that the requirement for "reasonable cause to suspect" in s.47 of the Children Act 1989 involves a lower threshold than "reasonable cause to believe". She submitted that the severe consequences of disclosure (such as, in this case, the claimant's loss of his job) make it vital to adopt the higher threshold.
47. For my part, I find reference to such materials unhelpful. The ultimate issue under s.115(7)(a) of the 1997 Act is whether the information "might be relevant" for the purpose described. By the terms of the statute, it is for the chief constable (or his delegate) to form an opinion on that issue. The question for the court, in the exercise of its supervisory jurisdiction, is whether the opinion formed by the officer concerned was reasonably open to him. It is a straightforward Wednesbury test, to which no gloss needs to be or should be applied. In forming his opinion on relevance, the officer must ask himself whether the information might be true: if the answer to that question is in the negative, there can be no reasonable basis for concluding that the information might be relevant. The assessment of whether the information might be true will involve careful consideration of the available evidence but does not require the application of any additional legal test. It is a matter of judgment, reviewable by the court, as I have said, only on a Wednesbury basis. I would specifically reject Ms Griffiths's attempt to impose a higher threshold than the relatively low threshold inherent in the question whether the information "might be true". That the threshold is relatively low is supported by the approach taken by Munby J and Bean J in R (B) v Secretary of State for the Home Department (cited above), following R (X) v Chief Constable of the West Midlands Police.
48. If the information might be true, it will of course also be necessary, in forming an opinion on relevance, to consider the degree of connection between the information and the purpose described. In the present case, however, nothing turns on that separate issue: if the allegations against the complainant might be true, their potential relevance to the claimant's employment is not in dispute. The case therefore turns on whether the allegations might be true. The Assistant Chief Constable addressed himself to that question and answered it in the affirmative. The legal question is simply whether that conclusion was reasonably open to him.
49. Given the developments that occurred before the claim was brought, the focus should be, as Ms Griffiths accepted in oral argument, not on the disclosure made in the original certificate of 13 September 2005 but on the Assistant Chief Constable's decision of 9 February 2007 to amend the wording of the information to be disclosed. Strictly speaking, the lawfulness of the decision should be determined by reference to the material available to him at the time of his decision, leaving out of account the additional material which has been placed before the court. In practice, however, it is possible and sensible to take all the material into account, because the Assistant Chief Constable has helpfully made clear that nothing in the documents seen by him since the date of his decision has caused him to change his view. (Nevertheless I am confident that the same result would be reached if attention were limited to the material available to the Assistant Chief Constable at the time of his decision.)
50. That approach also makes it unnecessary to consider various criticisms made by Ms Griffiths as to the content of the briefing documents submitted to the Assistant Chief Constable and as to the procedures adopted. The court can concentrate on whether, in the light of all the material now available, including the claimant's input, the disclosure decision was a reasonable one. At the same time I should make clear that in so far as Ms Griffiths pursued a submission to the effect that the decision of 9 February 2007 was tainted by what had been done or considered previously, I would reject the submission.
51. Ms Griffiths submitted in strong terms that the decision of 9 February 2007 was unreasonable. In relation to all the allegations, she emphasised by reference to Re D the danger of relying on information obtained through facilitated communication. She made detailed comments on each of the allegations, contending that they were not cogent or credible and that there was no reasonable basis for concluding that any of them might be true; and she submitted that if none of them has any weight when taken separately, then equally they can have no weight when taken together.
52. Among the specific points that Ms Griffiths made in relation to the first allegation were these. The context in which A first made an allegation against the claimant, on 8 June 2001, was that the claimant had just told A's family that, given the history of false allegations, it would not be possible to take A on the 2001 trip to Wales: this provided a motivation for the making of false allegations against the claimant. The language attributed to A in making allegations against the claimant, especially that of the allegation on 11 June 2001 (which I have not quoted in detail), is not the language of a person with A's disabilities and cognitive insight. Moreover, A's account was subject to serious inconsistency: for example, he said originally that Gary abused him in the garden while the claimant was in the house, but later he accused the claimant of raping him in his bedroom. There was evidence that A was prone to tell lies and to use facilitated communication to control his carers. By the end of June 2001 A had retracted his allegations against the claimant; and although such allegations were thereafter repeated during visits by the police, no allegation was made against the claimant during the validation exercise using an independent facilitator. The police crime report subsequently recorded that the claimant had been "eliminated".
53. In relation to the second allegation, Ms Griffiths drew attention inter alia to the fact that B's family was close to A's family. She pointed to the absence of any validation exercise using a "clean" facilitator, and to the subsequent finding by the Police Complaints Authority that the investigating officer had knowingly used an unacceptable method of communication. She submitted that the actual words communicated by B in the course of the assessment interview could not provide cogent evidence of any allegation against the claimant.
54. Among points made in relation to the third allegation were that C, when assessed by an independent intermediary, was found to be unable to communicate sufficiently well to be formally interviewed and that no further action was taken by the police. Ms Griffiths submitted that the intermediary's subsequent opinion as to the existence of overwhelming confirmation that the claimant had abused C was one that she was not qualified to make and was expressed in such strident terms as to cast doubt on her objectivity and impartiality.
55. I have given careful consideration to those submissions. It is plain that each of the three allegations suffers from serious weaknesses and that, on the available evidence, none of them could be substantiated against the claimant in a court of law. In relation to none of them, however, am I persuaded that it was unreasonable for the Assistant Chief Constable to conclude that the allegation might be true. The fact that an allegation is made through facilitated communication requires very great caution to be exercised in relation to it. The fact that, as happened here, an allegation so made is not repeated during an attempted validation or there is no validation stage at all reinforces the need for caution and effectively precludes any further proceedings in respect of it. None of that means, however, that the allegation cannot be true. Whether it might be true has to be assessed by reference to the totality of the circumstances. A further consideration is that it would appear that the third allegation did not depend on use of facilitated communication to the same extent as the first and second allegations.
56. The circumstances of each of the three allegations in issue here cast strong doubt over the allegations but do not in my view negate those allegations. In each case the complainant made a sufficiently coherent allegation to lead to the police becoming involved; none of the allegations was unequivocally withdrawn; and nothing that happened after the police became involved was sufficient to establish that the original allegations could not be true. Ann Geary, the professional therapist who worked with A and C, believed their allegations. Dr Larcher, the intermediary who assessed C and considered the material relating to him, had no doubt that his allegation was true; and although Ms Griffiths contended that Dr Larcher was not a relevant expert and was not able to express an admissible opinion on the issue, it seems to me that in this context it is permissible to take her opinion into account and to give it some weight. Further, despite the existence of links between the three complainants, there is no evidence of collusion between them. Looking at the totality of the available material, and notwithstanding the various matters to which Ms Griffiths drew attention in her written and oral submissions, I am not satisfied that the allegations are so devoid of substance as to make it unreasonable to conclude that they might be true.
57. I have also considered Lord Woolf's observation at para 41 of R (X) v Chief Constable of the West Midlands Police (quoted above) that there could be cases where the information should not be included in the certificate because "the evidence made it so unlikely that the information was correct, that it … would be disproportionate to disclose it". The conclusion I have reached is that this is not such a case and that there is no other basis on which disclosure could be said to be disproportionate. (That makes it unnecessary for me to consider an issue raised in argument as to the extent to which the chief constable has a discretion under s.115(7)(b) to withhold information that meets the condition in subs.(7)(a). The argument advanced on behalf of the defendant was that subs.(7)(b) must be read in the light of subs.(8) and that the discretion to withhold information under subs.(7)(b) on the ground that it is not information that "ought to be included" in the certificate is a very narrow one.)
58. It follows that in my judgment the decision to disclose the three allegations was lawful, though I still have to consider Ms Griffiths's secondary submission as to the terms in which disclosure should be made. I recognise how painful such disclosure must be for the claimant, and how damaging its consequences may be. It seems to me, however, that all this follows inevitably from the terms of the legislation and is fully in line with the legislative policy as explained by Lord Woolf in R (X) v Chief Constable of the West Midlands Police. In relation to employment with children or vulnerable adults, it is information of which an employer should be aware. It is then for the employer to decide whether the employment of the person concerned involves an unacceptable risk.
59. I am troubled by the fact that the claimant's new employer in this case apparently operated a blanket policy of insisting on a "clean" certificate, so that the disclosure of the three allegations led inevitably to the claimant's dismissal on the transfer of his employment to that employer on a reorganisation at work. The legislation imposes a relatively low threshold for disclosure in the certificate in order to enable an employer to make a properly informed decision. But it is important that employers understand how low that threshold is and the responsibility that it places in practice upon them. A properly informed decision requires consideration not only of the information disclosed in the certificate but also of any additional information or explanation that the employee may provide. The operation of a blanket policy of insisting on a "clean" certificate leaves no room for taking into account what the employee may have to say. That is a matter of particular concern if it leads to the dismissal of an existing employee or of someone whose employment is transferred to the employer on a reorganisation. On the basis of the limited material available to the court, I confess to some surprise that the claimant was advised in this case that he had no reasonable prospect of success in a claim for unfair dismissal resulting from the application of such a policy. We are not, however, called upon to decide whether the advice was correct and I should stress that we do not know all the relevant circumstances of the dismissal. I should also make clear that the advice was not given by Ms Griffiths or by the solicitor instructing her.
60. I turn to consider Ms Griffiths's secondary submission, which was that if the three allegations had to be disclosed at all, more should have been said in relation to them than the Assistant Chief Constable considered appropriate in his decision of 9 February 2007. In particular, reference should have been made to the limitations and dangers of facilitated communication, including the advice of the American Psychological Association that information obtained through facilitated communication should not be used to confirm or deny allegations of abuse, and the importance of a validation exercise using trained facilitators. A specific point that should have been mentioned in relation to the third allegation was that it was not recorded as a crime and was not pursued by the police.
61. One difficulty about the secondary submission is that the claimant did not take up the opportunity that was offered to make further representations on the wording proposed in the decision of 9 February 2007: representations were subsequently made, but not on this point. In any event, however, I am wholly unpersuaded that the Assistant Chief Constable acted unlawfully in deciding on disclosure in the terms proposed, without including additional matters of the kind now put forward on the claimant's behalf. I do not dispute the importance of those matters, but it is open to the claimant to draw an employer's attention to them, so as to enable the employer to assess the significance of the information disclosed in the certificate, and I do not think that omission of those matters from the certificate rendered the disclosure in the certificate so inadequate or unfair that the no reasonable decision-maker would have made disclosure in those terms.

Conclusion

62. For the reasons given, I would dismiss the claim for judicial review.

Mr Justice Keith :

63. I agree.