|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> L, R (on the application of) v Cumbria Constabulary  EWHC 869 (Admin) (19 April 2013)
Cite as:  WLR 601,  1 WLR 601,  EWHC 869 (Admin)
[New search] [Context] [View without highlighting] [Printable RTF version] [Buy ICLR report:  1 WLR 601] [Help]
QUEEN'S BENCH DIVISION
7 Rolls Building
B e f o r e :
| THE QUEEN (on the application of L)
|THE CHIEF CONSTABLE OF CUMBRIA CONSTABULARY
Charlotte Ventham (instructed by Cumbria Police Legal Services ) for the Defendant
Hearing dates: 5 March 2013
Crown Copyright ©
Mr Justice Stuart-Smith:
i) Addresses the relevant principles to be applied in this case at [4-28];
ii) Summarises the factual background at [29-67];
iii) Discusses the application of the relevant principles to the facts of the case at [68-91];
iv) Concludes at  that, for the reasons set out in the judgment, L's challenge succeeds.
The Relevant Principles
"113B Enhanced criminal record certificates
(1) The Secretary of State must issue an enhanced criminal record certificate to any individual who-
(a) Makes an application […], and
(b) Pays in the prescribed manner any prescribed fee
(3) An enhanced criminal record certificate is a certificate which-
(a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with subsection (4), or
(b) States that there is no such matter or information.
(4) Before issuing an enhanced criminal record certificate the secretary of state must 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. "
"It is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting . . . . There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test . . . . The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time: Wilson v First
County Trust (No 2)  1 AC 816, paras 62-67. Proportionality must be judged objectively, by the court . . . ."
i) In human rights adjudication, the court is concerned whether the human rights of the claimant have in fact been infringed, not with whether the administrative decision maker properly took them into account;
ii) The burden is upon the Defendant to establish that any interference with the rights of the claimant under article 8 was justified.
"In the context of this case it is sufficient to note that it has been recognised that respect for private life comprises, to a certain degree, the right to establish and develop relationships with other human beings;… . Excluding a person from employment in her chosen field is liable to affect her ability to develop relationships with others, and the problems that this creates as regards the possibility of earning a living can have serious repercussions on the enjoyment of her private life:… . She is entitled also to have her good name and reputation protected; As Baroness Hale said in R (Wright) v Secretary of State for Health  AC 739, para 36 the fact that a person has been excluded from employment is likely to get about and, if it does, the stigma will be considerable. "
"So the issue is essentially one of proportionality. On the one hand there is a pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the Applicant's right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place."
"… it is no answer to these concerns that the ECRC is issued on the application of the persons concerned. It is true that they can choose not to apply for a position of the kind that requires such a certificate. But they have, in reality no free choice in the matter if an employer in their chosen profession insists, as he is entitled to, on an ECRC. The answer to the question whether there is any relevant information is likely to determine the outcome of their job application. If relevant information is disclosed they may as a result be cut off from work for which they have considerable training and experience. In some cases they could be excluded permanently from the only work which is likely to be available to them. They consent to the application, but only on the basis that their right to private life is respected.
"It seems to me realistic to assume that in the majority of cases, it is likely that an adverse ECRC,…will represent something close to a killer blow to the hopes of a person who aspires to any post which falls within the scope of the section."
"Having decided that information might be relevant under s 115(7) (a), the chief officer then has to decide under s 115(7) (b) whether it ought to be included, and, in making that decision, there will often be a number of different, sometimes competing, factors to weigh up. Examples of factors which could often be relevant are the gravity of the material involved, the reliability of the information on which it is based, whether the applicant has had a chance to rebut the information, the relevance of the material to the particular job application, the period that has elapsed since the relevant events occurred, and the impact on the applicant of including the material in the ECRC, both in terms of her prospects of obtaining the post in question and more generally. In many cases, other factors may also come into play, and in other cases, it may be unnecessary or inappropriate to consider one or more of the factors I have mentioned. Thus, the material may be so obviously reliable, relevant and grave as to be disclosable however detrimental the consequential effect on the applicant."
"In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69, 80, the Privy Council, drawing on South African, Canadian and Zimbabwean authority, defined the questions generally to be asked in deciding whether a measure is proportionate:
"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."
This formulation has been widely cited and applied. But counsel for the applicants (with the support of Liberty, in a valuable written intervention) suggested that the formulation was deficient in omitting reference to an overriding requirement which featured in the judgment of Dickson CJ in R v Oakes  1 SCR 103, from which this approach to proportionality derives. This feature is (p 139) the need to balance the interests of society with those of individuals and groups. This is indeed an aspect which should never be overlooked or discounted. The House recognised as much in R (Razgar) v Secretary of State for the Home Department  2 AC 368, paras 17-20, 26, 27, 60, 77, when, having suggested a series of questions which an adjudicator would have to ask and answer in deciding a Convention question, it said that the judgment on proportionality:
"must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage." (see para 20)."
i) In R(B) v Chief Constable of Derbyshire Constabulary  EWHC 2362 (Admin) Munby LJ (with whom Beatson J agreed) said at  that information such as that with which the court was concerned in that case (allegations of serious violence towards two children) was to be disclosed only if there was a "pressing need" for that disclosure;
ii) The Court should give appropriate weight (but not "deference") to the opinion of the original decision maker, taking account of his experience, special expertise, and access to specialist sources of knowledge and advice. However, the primary decision maker's views cannot be decisive. Ultimately it is for the court to decide whether or not the applicant's Convention Rights have been breached: see Miss Behavin' at  per Baronness Hale, Quila at [61-63] and R (BBC) v Secretary of State for Justice  EWHC 13 (Admin) at ;
iii) There is no presumption in favour of disclosure. Neither the social need to protect the vulnerable nor the right to respect for private life of the applicant automatically has precedence: see Lord Hope at [43-44] of L.
"73. In our judgment, once it is accepted that it is open to a demoted tenant to seek judicial review of a landlord's decision to bring and continue possession proceedings, then it inevitably follows that, as a generality, it is open to a tenant to challenge that decision on the ground that it would be disproportionate and therefore contrary to article 8. Further, as we saw at paras 31 to 43 above, the European court jurisprudence requires the court considering such a challenge to have the power to make its own assessment of any relevant facts which are in dispute. We have already pointed out, at para 28 above, that Lord Scott and Lord Mance, in particular, reached this conclusion in Doherty v Birmingham City Council  AC 367, paras 68 and 138. The European court acknowledged this development in Kay v United Kingdom  HLR 13, para 73. In these circumstances we are satisfied that, wherever possible, the traditional review powers of the court should be expanded so as to permit it to carry out that exercise.
74. In summary: where it is required in order to give effect to an occupier's article 8 Convention rights, the court's power of review can, in an appropriate case, extend to reconsidering for itself the facts found by a local authority, or indeed to considering facts which have arisen since the issue of proceedings, by hearing evidence and forming its own view."
i) Where the substance of the challenge is a rationality challenge to a decision made at a particular point in time, the lawfulness of that decision should generally be assessed by reference to material which was (or could reasonably have been) available to the primary decision maker when that decision was made. In such a case, it is conceivable that later information may come into play when the Court is deciding whether to make available or to withhold the discretionary remedies of judicial review. However,
ii) Where the challenge asserts a breach of the Claimant's Convention rights, the role of the Court is different, not least because the Court is itself a public authority within the meaning of s. 6(3) of the Human Rights Act 1998 and is therefore prohibited by s. 6(1) from acting in any way which is incompatible with a Convention right. This requires the Court to have regard to the continuing effects of its decisions in a manner which differs fundamentally from that which applies in the case of a traditional rationality challenge by way of judicial review. In an HRA case, it is therefore to be expected that up to date information will take a central place in the Court's decision-making process.
"62 The legislation must not only have a legitimate policy objective. It must also satisfy a "proportionality" test. The court must decide whether the means employed by the statute to achieve the policy objective is appropriate and not disproportionate in its adverse effect. This involves a "value judgment" by the court, made by reference to the circumstances prevailing when the issue has to be decided. It is the current effect and impact of the legislation which matter, not the position when the legislation was enacted or came into force. (I interpose that in the present case no suggestion was made that there has been any relevant change of circumstances since the Consumer Credit Act 1974 was enacted.)" [Emphasis added]
When read in the context of the citation from Wilson, it seems to me that Lord Bingham's "circumstances prevailing at the relevant time" include those occurring up the date of the Court's decision. Accordingly, the passage in Denbigh supports the approach of the Claimant and not that of the Defendant.
"41. In Belfast City Council v Miss Behavin' Ltd  1 WLR 1420, Baroness Hale confirmed, at , that:
"The role of the court in human rights adjudication is quite different from the role of the court in an ordinary judicial review of administrative action. In human rights adjudication, the court is concerned with whether the human rights of the claimant have in fact been infringed, not with whether the administrative decision-maker properly took them into account."
42. In order to carry out this role effectively, the court has to consider the facts as they are found at the time of its adjudication, and not limit itself to the facts in existence at the time of the original decision. In Huang Lord Bingham explained that the "first task" of the immigration tribunal was "to establish the relevant facts" which "may have changed since the original decision was made". Outside the immigration context, the House of Lords has confirmed in Manchester City Council v Pinnock  2 AC 10, that the European law requires the domestic court to make its own assessment of the facts at the hearing before it. Lord Neuberger said at  and :…"
After citing  and  from the speech of Lord Neuberger in L, Lang J continued:
"43. Although the relevant court in Pinnock was the County Court, I consider that the Administrative Court has to carry out a similar exercise as it is the sole court with power to review whether the Defendant's decision will result in a breach of the Claimant's human rights. In doing so, it has to consider the Claimant's human rights as at the date of the court hearing. If it confines its consideration to a date in the past, and ignores the current position, it might itself act in breach of the Claimant's rights, contrary to section 6(1) HRA 1998."
The Factual Background
"I am 18 years old. I'd had a drink but I remember everything. He'd had a drink.
He come up to me and was talking. He hugged me. He'd not done it before. "Do it again" he said and he pressed my chest to him – 4 to 5 times. "I need to go" I was uncomfortable but I knew I could handle it. It was because of who he is I felt uncomfortable. I kept bumping into him throughout the night. He whispered "I want you to come round to mine- 2 hours- £200 every month". I laughed it off but he kept repeating it throughout the night- (4-5 times at least). A saw the hugging. I'm sure. When I'd been propositioned I told R. I wasn't sure what to do. I wasn't sure who to come to" (A and R are identified by name in the statement)."
"Cumbria Constabulary holds the following information concerning L…that in the opinion of the Chief Officer delegate might be relevant to this application and ought to be disclosed under part V of the Police Act 1997.
On 07.05.10 it was alleged that, whilst in licensed premises, L had inappropriately hugged an 18 year old female school pupil and had persistently asked her to go home with him offering her £200 to do so. When interviewed, L agreed that he had been present that evening but denied all allegations stating that he had not seen or spoken to the girl. L was, at that time, still one of the girl's teachers, having taught her since she was 13 years of age.
The matter was referred to the General Teaching Council who, after review, took no further action. No further police action was taken against L in relation to these allegations as the girl was 18 years of age and therefore no criminal offences had been committed."
"Cumbria Constabulary holds the following information concerning L…that in the opinion of the Chief Officer Delegate might be relevant to this application and ought to be disclosed under part V of the Police Act 1997.
On 07.05.10 it was alleged that, whilst in licensed premises L had inappropriately hugged an 18 year old female school pupil and had persistently asked her to go home with him offering her £200 to do so. When interviewed, L agreed that he had been present that evening but denied all allegations stating that he had seen or spoken to the girl.
L was, at that time, still one of the L's teachers, having taught her since she was 13 years of age. The matter was referred by the school to the General Teaching Council which, after consideration by their investigating committee of the information available to them at that time, decided there was no case to answer. No further police action was taken against L in relation to these allegations as the girl was 18 years of age and therefore no criminal offences had been committed."
"I am aware that this disclosure is a balance of competing rights, however, when balanced with the potential risks of sexual harassment and/or sexual touching/ activity posed to young and impressionable females with whom L would be placed in a position of trust as a teacher, I consider disclosure to be necessary and proportionate. A prospective employer of L for a post as teacher needs to be in possession of all relevant information in order to assess any risks posed by him. It is then the Judgement and decision of L's prospective employers as to what action to take."
The section of the form which is intended to record the Chief Officer's or Chief Officer Delegate's decision appears to be blank and unsigned although the name of Assistant Chief Constable Skeer appears at the foot of it.
"I remember that L came to me and told me that [C] had made a complaint against him- something about indecent assault [illegible] I think I remember they had been in the pub one night but I didn't see anything happen and I certainly didn't hear about anything that night until L told me she's made a complaint."
Later in the statement he added:
"If he has said anything to her I imagine it would be said in jest."
"Therefore I conclude disclosure under part 5 of the Police Act 1997 is appropriate and reasonable for the same reasons outlined by Chief Constable Craig Mackey on 28 November 2011.
I have considered all the information that might be relevant for the purpose of coming to a conclusion and the content of disclosure. I have balanced this against the right of L to a private life and the potential prejudicial impact on his employment prospects as a teacher but conclude that disclosure is appropriate, necessary and proportionate. The potential risks outweighing L's human rights. "
"The allegation on L's CRB certificate refers to an evening out which took place over two years ago in the [pub]. I was with L throughout the evening and we left together in a taxi. At no time throughout the evening did I see him speaking to or acting inappropriately with the person in question."
"Cumbria Constabulary hold the following information which we believe to be relevant to the application of L, .... The information relates to an allegation of inappropriate behaviour towards a female pupil of the school where L was employed as a teacher. Cumbria Constabulary believe this information to be relevant to an employer's risk and suitability assessment when considering L's application for the post of supply teacher with vision for education, working with children and vulnerable adults, because the information, which is considered likely to be true, indicates an abuse by L of the position of trust in which he was placed as a teacher.
The information held by police involves an allegation by an 18- year old female that on 07.05.10, whilst in licensed premises, L had inappropriately hugged her and persistently asked her to go home with him, offering her £200 to do so, causing her to feel vulnerable and harassed. The complainant was a pupil at the school where L was employed as a teacher and he had known her since she was 12 or 13 years of age when he was her teacher.
When interviewed by police, L agreed that he had been present that evening but denied all allegations stating that he had not seen or spoken to the complainant. No further police action was taken against L in relation to these allegations as the complainant was 18 years of age and therefore no criminal offences had been committed.
After careful consideration, Cumbria Constabulary considers that this information ought to be disclosed as the alleged incident of inappropriate behaviour occurred in relation to a female pupil of the school where L was a teacher at the time. The information is materially relevant to the post of supply teacher applied for in which L will have regular and unsupervised contact with children and young adults. The risks of similar inappropriate behaviour of a sexual nature by L towards vulnerable young persons must, in this instance, outweigh the prejudicial impact that disclosure may have on L's private life and employment prospects as a teacher."
"It was not until about 11.30pm that we rang a taxi and decided to go to [the pub]. We were at [the pub] for no more than 30 minutes and then ordered a taxi to take us home at around 12.30am. We were not at [the pub] for a prolonged period and had only stopped off there on our way home. Whilst at [the pub] L and I were sat at the bar. I was with L at all times whilst at the bar in [the pub]. One or two other people including Mr G the landlord came and spoke to us. All the people who spoke to us were male. As stated earlier I am sure we did not stay for longer than 30 minutes."
a) In the course of his decision making he had a number of discussions with his Senior Legal Advisor who reminded him of his obligations pursuant to s.113B (4) of the Act and the factors listed by Lord Neuberger in L. He states that he was also aware of his obligations under the ECHR, particularly article 8;
b) He was aware of his predecessor's actions but completed a full review of the case. His decisions were based on the information available to him and were his decisions alone;
c) In assessing the reliability of C's allegation he says "it was possible that it disclosed a very serious matter suggesting a propensity to pursue young girls for sex, for payment. Equally, I was mindful that it could also constitute a misunderstanding, or that it could have been a malicious allegation. I was careful not to make the assumption that there was only one explanation.";
d) He says that he ignored the information about other allegations, but "in reviewing the case I gave considerable weight to the comments of PC Owen and her assessment of the witnesses in particular of the likelihood that the allegations could have been either mistaken or vindictive. She gave an assessment of the subject C and the witness R which I found plausible and beneficial to C's account. This added considerable weight to my overall decision.";
e) He says that he reviewed the various witness statements. He appears to have discounted the weight to be attached to the July 2012 statement from Mr H on the basis that "the statement had been produced some two years after the event and contains sparse information about the evening." He did not expressly comment on the fact that R's statement, though more detailed, was itself produced some 18 months after the date in question;
f) He gives his reasons for preferring the accounts of C and R as against that of L. In summary, he decided that some form of communication had taken place and "having determined that some form of communication did take place and in the light of L's absolute denial of this I concluded that there was a far greater probability that C was more correct in her account than L." As a result, having regard to all of the evidence available to him, he was satisfied that the allegation against L was sufficiently reliable to justify disclosure in principle;
g) Turning to the balance of competing interests, Chief Constable Hyde states that he was very aware of the impact that disclosures have on all parties. He says "I explored whether a disclosure statement could be restricted to secondary schools, as there appeared to be no evidence to suggest that younger children would be at risk." (This part of his evidence is borne out by the fact that the ECRC on 26 September 2012, which was for a position in a primary school, made no reference to C's allegations.)
h) The core of his reasoning on the balancing exercise should not be paraphrased and is set out in full below:
" I considered that whilst the disclosure of any information may be prejudicial, nevertheless the qualified nature of the information provided, the fact that each disclosure would be considered on its own merit, and the fact that not all teaching posts applied for would give rise to a disclosure, would mean the Claimant would still have plenty of opportunities to work even if this disclosure were made. (To that end, I am aware that a subsequent application by the Claimant for a post within a primary school did not give rise to a disclosure on an ECRC).
 I considered the human rights of both the Claimant and potential vulnerable people. I understood that it was my duty to weigh up the rights of those different people/groups and to ensure that any disclosure was appropriate, necessary and proportionate. Since the incident was still relatively recent I considered whether the alleged conduct, if continued, would put vulnerable people at risk. The group I considered at risk were young girls who may have been in a teacher/student relationship with the Claimant. The group would include those who were likely to meet the Claimant in licensed premises, primarily Sixth Formers. Whilst the legal age for purchasing alcohol in licensed premises is 18, many younger people attend licensed premises. As such, I concluded that it was possible that the circumstances alleged in this incident could occur again and young girls particularly those who are ex, or current, students would be at risk.
 I balanced this risk by considering the rights of potential victims against the rights of the Claimant to respect for his private life including his employment. I also considered the amended language used in the disclosure that gave prominence to the decision of the GTC which makes it clear that they had decided that there was no case to answer and that as the alleged victim was 18 there were no criminal offences committed. I felt that the revised wording of the disclosure addressed the proportionality issue and balanced the need to protect vulnerable people against the Claimant's rights to privacy and employment opportunities. Since the disclosure was balanced, a potential employer could make its own decision about whether any risk was relevant to the future employment opportunity. I concluded that disclosure was proportionate in the circumstances. I felt that the disclosure was necessary to protect vulnerable people in particular as the relationship between a teacher and a student was at the heart of the allegation. "
a) L says that at the time of the alleged incident he was taking medication (Prozac) and that his description of Mr H in his interview as being intoxicated was "a mistake". He says that he had subsequently asked Mr H why he had been acting strangely on the night and was informed that he had been upset as a result of personal matters. Second, he says that the indication in interview that he had been in the pub for about 1 ½ hours was again "simply a mistake". Third he says that he had overestimated the amount he had drunk when giving his interview. Finally he confirms that he had taken a taxi home with Mr H, whatever he may have said in his interview;
b) Mr H, in his further statement, states that he was not intoxicated but was going through a difficult personal time as a result of which he was feeling particularly stressed and upset. Otherwise he confirms the contents of his previous statements.
i) No full or proper investigation was carried out by the Police. This may have been because the (incorrect) view was taken at an early stage that C's allegations, if true, did not disclose the commission of a criminal offence. Whatever the reason, although C identified the pub, R and A to the Police and L in his interview identified Mr H, the Police never contacted A, did not contact R for 18 months, did not contact Mr G for 2 years, and did not contact Mr H at any stage. Readily available evidence was therefore either not obtained or not pursued for 18 months or longer. While this was an understandable allocation of scarce police resources in relation to a relatively minor allegation (of which more below), the absence of evidence remains a material consideration;
ii) The police investigation, such as it was, has features about it which give rise to concern. It was largely left to PC Owen in 2010. She ended up antipathetic towards L, as was clearly expressed in her emails in May and June 2011. Her antipathy was at least in part due to relying on unsubstantiated intelligence including that which suggested "peeping tom" tendencies. She recognised that her approach was not balanced and based on "gut feelings", but that did not stop her expressing her views in pejorative terms. This casts doubt on the objectivity of her investigations and assessment of witnesses. Her lack of objectivity is also evidence by her unjustified reference to L in his police interview having been "fidgety and stuttering". What cannot be determined is whether or to what extent this lack of objectivity may have affected PC Owen's production of witness statements by C, R and Mr G. While Chief Constable Hyde says that he ignored the intelligence information about other allegations, he says that he gave considerable weight to PC Owen's comments, which were based upon them. This casts doubt upon the objectivity and reliability of his assessment of the witnesses whose evidence he had available. For present purposes, the quality of the investigation that was carried out is a factor to be taken into account and which makes assessing the reliability of one account or another more uncertain;
iii) The allegations have not been established in any court of record or other forum where the opposing accounts could be challenged and subjected to informed scrutiny. This statement does not imply criticism of the police in not bringing a prosecution. It is simply an observation on the absence of certainty when assessing reliability;
iv) Two bodies with responsibility for the maintenance of proper teaching standards and the protection of vulnerable persons considered C's allegations and considered that there was no case for L to answer. Ms Carson deflected the significance of these determinations by pointing out that the GTC did not have C's police statement. That is correct; but both the GTC and the ISA in fact had C's hand-written statements, which contained the substance of her allegations. It is not known whether the ISA reached its decisions on the basis of an assessment of C's allegations or a conclusion that, even if true, C's allegations did not justify L being placed upon the Barred Lists. Accordingly, the weight to be applied to the ISA decision is, in relation to reliability, slight. The GTC stated that it was not satisfied that there was sufficient evidence for there to be a case to answer, which suggests that its decision was based upon an assessment of the reliability of C's evidence rather than of the consequences if her evidence were correct. I would adopt a cautious approach and say that the significance of the GTC decision is limited, firstly, because the decision making process is not fully documented and, secondly, because the GTC was at the same disadvantage as the Chief Constable and the Court: the evidence could not be and was not properly tested with a view to establishing its reliability.
i) Though, as L recognised in his submissions to the defendant, any indecent assault is a serious matter, this was at the lower end of the scale in absolute terms. The initial hug was consensual and the complaint was of 4-5 continuations of that initial hug involving pressing C to L's chest. The fact that C was L's pupil was an aggravating feature; but other common and aggravating features of indecent conduct were absent;
ii) The propositioning was an unacceptable breach of trust, which again was an aggravating feature. That said, what was alleged to have happened was at the lower end of the scale in absolute terms. C did not allege that L coerced her in any way and, fortunately, he did not persist after leaving the pub;
iii) The effect on C was, on her account, thankfully limited. Initially she "was uncomfortable but [she] knew she could handle it." Later she said that she was not sure what to do or who to go to. She amplified her account of her feelings in her police statement, evidencing a degree of anger that she had been so treated and concern that others should not be; but there is no suggestion of any adverse effects other than in the short term.
i) This was the only allegation against L suggesting the possibility of any risk of inappropriate behaviour, since the intelligence suggesting possible "peeping tom" behaviour was rightly discarded by the defendant. While C's allegations raise the possibility of risk, it is obvious (and Miss Ventham accepted on behalf of the Defendant) that the situation would have been much more worrying if there had been more than one such allegation: put shortly, while one allegation might be said to raise the possibility of a propensity to pursue young girls for sex, repeated allegations would suggest that the possibility was a reality;
ii) Chief Constable Hyde identified as the group at risk "young girls who may have been in a teacher/student relationship with L", clarifying that his concern related to those who he might meet away from school in licensed premises. This assessment was realistic because there was no evidence to suggest inappropriate behaviour at school, and the consumption of alcohol might reasonably be anticipated to contribute to disinhibition. However, this realistic assessment also meant that the class of persons at risk and the opportunities for a repeat of the behaviour alleged by C was very limited: it depended upon the coincidence of L being in licensed premises at the same time as young girls with whom he was or had been in a teacher/pupil relationship, since there was no suggestion that he had enticed C to be there. Chief Constable Hyde widened the prospective class by including those who went to pubs under-age. While his assertion that some (if not "many") younger people went to pubs is both wordly and realistic, the class would remain very narrow. What is more, it could not be assumed that all of the small number within the class would be at risk if they met him in licensed premises. Some would inevitably be accompanied in such a way as to make repetition impossible; and it could not be assumed that all others would be at risk on the basis of the allegations made by C, who L had clearly known particularly well by reason of the two years' employment. A realistic appraisal of the risk of repetition would therefore conclude that it would be slight.
Note 1 Although directions may be made to enable the determination of disputed issues of fact: see R (Al-Sweady) v Secretary of State for Defence  EWHC 2387 (Admin);  HRLR 2. [Back] Note 2 The italicised passage represented an alteration to the text of the previous ECRC. [Back]
Note 1 Although directions may be made to enable the determination of disputed issues of fact: see R (Al-Sweady) v Secretary of State for Defence  EWHC 2387 (Admin);  HRLR 2. [Back]
Note 2 The italicised passage represented an alteration to the text of the previous ECRC. [Back]