Enhanced Disclosure in Sport

Sports regulatory bodies and sports clubs must generally obtain enhanced disclosure of coaches and other persons who are responsible for supervising and working with children (now called Enhanced Disclosure and Barring Service Checks). They often have to take action based on that information, and always have to assess the relevance and importance of that information. A number of cases relating to enhanced disclosure have now been decided by the Administrative Court and a body of law is developing which will help to inform sporting bodies about how to treat such information.

In an important recent judgment, R (L) v Chief Constable of Cumbrian Constabulary [2013] EWHC 869 (Admin) (http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2013/869.html&query;=CRB&method;=boolean)  the Administrative Court was critical of enhanced disclosure provided by a Chief Constable about a PE teacher and held it to be unlawful as representing a disproportionate interference with Article 8 of the ECHR.

L had taught for a number of years at a secondary school as community sports coordinator and PE teacher. In May 2010 an 18 year old student, C, whom he knew well as she had been ‘employed’ by him to assist with an after school sports club, alleged that one night when they had encountered each other in a local pub, L had inappropriately hugged her and pressed himself to her on several occasions, and persistently asked her to go home with him offering her £200 if she agreed.

When interviewed, L agreed that he had been present at the pub but denied all allegations stating that he had not seen or spoken to C. 
The matter was referred to the General Teaching Council who, after review, took no further action. The police also looked in to the matter without conducting a full investigation but concluded there was no evidence of any crime having been committed. The Independent Safeguarding Authority (ISA) – now replaced by the Disclosure and Barring Service—decided  that there was no basis for including L on the Children's Barred List or the Adults Barred List.

By May 2011 L was seeking further employment as a result of which a request was made for enhanced disclosure. The Chief Constable disclosed the facts set out but did not say that there had been no investigation or action taken by the police or the ISA. The information was accurate, albeit incomplete and, therefore, lacking in balance.

As a result of the enhanced disclosure L was refused inclusion on the supply teacher register and an offer of employment which he had obtained at a primary school was also withdrawn. Since July 2011, L had been unable to obtain any employment as a teacher.

The court decided that it would examine for itself whether the information should have been disclosed (although it said it was not its task to do an editing job on the enhanced disclosure). Stuart Smith J held that the disclosure was disproportionate and unjustified and should not have been included by the Chief Constable. He said that the “true risk” disclosed by the information was “slight” even if the allegations were true (§83, §88):

(1) It was one episode.

(2) It was “relatively minor in the overall scheme of sexually inappropriate behaviour”.

(3) It was an isolated incident and there had been no subsequent allegations.

(4) L had a long unblemished career.

(5) The relevant risk was limited to persons L might meet on licensed premises away from school, and although not unconnected to his employment, it was not a risk that arose in the course of his employment as a sports teacher.

In addition, (5) the incident had not been fully investigated, and (6) the reliability of C’s account had never been tested or established.

The emphasis on the absence of testing of the accounts is particularly notable given that the credibility of L’s evidence had to some extent undermined by inconsistencies in his account since he had raised an objection to the enhanced disclosure and, the court accepted, there was reason for treating C’s account as reliable.

Stuart Smith J stated that balanced against this was the that “the entirely foreseeable result of the disclosure had been as severe for L's employment prospects as if he had been convicted of a serious offence of sexual misconduct and placed on the Sex Offenders' Register” (§88). It had dealt a “killer blow” to his employment prospects.

The case concerned the decision of the Chief Constable to disclose information about previous unproven allegations relating to children, rather than the decision of a body, such as a sports regulatory authority, to rely on such allegations. The two situations are plainly not the same. Indeed, as the court recognised, one of the reasons for ensuring that Chief Constable’s act in a proportionate manner in disclosing information is because disclosure “automatically provides the Chief Constable's endorsement that he considers the reliability and gravity of the information to be such that it justifies” the foreseeable consequences (§90).

Nonetheless, the case is of relevance to bodies that have to consider and assess enhanced disclosure. Notwithstanding the comment of Stuart Smith J as to the endorsement of the Chief Constable of the information provided, bodies must make their own assessments of the relevance and importance of the information and the proportionality of action taken in reliance on it.  L’s case indicates that close attention must be paid to the relevance of the information to the particular role that the individual undertakes or wishes to undertake, the extent of the risk and the strength of the evidence.

There is no doubt that the emerging cases, which are anxiously scrutinizing enhanced disclosure, are likely to make the job of sporting bodies in balancing the vital need to protect children and young persons on the one hand, and the rights of coaches and staff on the other, even more difficult than it already is.