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The importance of article 8 when considering disclosures

The role of Article 8 of the European Convention on Human Rights (ECHR) in data protection law has already been in the spotlight in recent months (as TLT reported here) and now it has appeared on the data protection radar once more, this time in the context of police disclosures.

In AB v Chief Constable of Hampshire Constabulary [2015] EWHC 1238 (Admin), the court highlighted the importance of making necessary enquiries to establish the accuracy of allegations before making a disclosure that engages an individual's Article 8 rights.

Article 8 of the ECHR protects individuals' rights to a private and family life. The right can be infringed only where the infringement can be justified on the basis that it is in accordance with the law, necessary and proportionate. Part V of the Police Act 1997 sets out what factors a chief officer should take into account, and what questions should be asked, when deciding what information to include in a criminal records certificate.

Facts

In this case, AB was a teacher who was dismissed from his employment at a college in 2010 for inappropriate behaviour with female students. A police officer was made aware of the investigation into AB and made various enquiries, resulting in information about AB being retained on police systems. AB later commenced a teaching job at a new school, a fact of which the police became aware in 2013.

The police officer who had originally found out about AB's dismissal was labouring under the misapprehension that a) AB had also been dismissed from another school for inappropriate conduct and b) AB's behaviour in 2010 had included inappropriate physical contact. Neither of these were true, but the officer passed this information on to the Local Authority Designated Officer (LADO) who informed the school. This led to AB's resignation. AB complained to the Hampshire Constabulary's professional standards department about the officer's decision to disclose information to the LADO but his appeal failed. He then brought an application for judicial review against both the officer's disclosure to the LADO and the police's dismissal of his appeal.

Decision

AB's application succeeded on both fronts. The officer's decision to disclose was unlawful as it had failed to have sufficient regard to the individual's Article 8 rights. Even though Part V of the Police Act 1997 was directed at information included in criminal records certificates, the court felt that the officer should have taken these criteria into account to ensure a consistent approach and a proportionate decision. Even though there were safeguarding duties involved, this did not absolve the officer from the obligation to carry out what the court referred to as "common sense fact checking".

The professional standards department's decision to dismiss AB's appeal was also unlawful as the department failed to take steps to verify the information, for example contacting staff from the alleged "other school" from which the officer said AB had been dismissed.

Impact

Although the case involved the police and those in the education sector specifically, it represents a more general warning for anyone considering making a disclosure about another individual to make sure that the information is accurate and that disclosure is necessary and proportionate, to avoid falling foul of Article 8. As the second case in a matter of months to deal with the interplay between data protection law and Article 8, the case highlights how important it is to consider Article 8 alongside data protection requirements when dealing with personal information.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2015. Specific advice should be sought for specific cases. For more information see our terms & conditions.

 

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