A, R (on the application of) v B  EWHC 2361 (Admin) (21 July 2010) – Read judgment
When should the police disclose a person’s private sexual practices to his employer? The high court has just ruled that a detective inspector breached a man’s human right to privacy by telling his employer that he had been taking pictures of short-skirted women in the street without their knowledge.
The case of ‘A’ raises important questions of the extent of the police’s duty to keep the peace and prevent crimes before they happen. This duty can come into conflict with the human right to respect of private and family life , which can be breached by the state in order to keep the public safe.
The police had searched this claimant’s house whilst investigating a woman’s disappearance. During the search, they found adult pornographic pictures and DVDs. He had large telephone bills, some over £1,000, from calling sex chat lines, and had filmed his own masturbation. None of this was illegal.
What concerned the police were voyeuristic photographs found on his mobile phone of a woman sunbathing in the next door garden, as well as pictures and videos of various woman taken in the street seemingly without their consent.
But was this behaviour dangerous? The experienced detective inspector decided that it was. In his view, the claimant’s “pursuit of sexual gratification” was “not constrained by the boundaries of morally acceptable behaviour ” and his behaviour “may be capable of escalating into sexual offending as these boundaries are eroded.” He was therefore a “clear danger” to young woman.
The claimant worked in a university and volunteered at Mind, a mental health charity. The detective decided to tell them of his concerns, in order, he said, to protect the young women he might come into contact with.
‘A’ sued the police, arguing that they had breached his human rights by making the damaging revelations without proper cause.
The high court agreed. The police had been too heavy-handed, and had not taken enough care before deciding to disclose the claimant’s sexual practices.
Previous cases indicate that before such disclosure is made, the police must be sure of three things. First, the truth of the allegation; secondly, the interest of the third-party for whom disclosure was intended in obtaining the information; and, thirdly, the degree of risk posed by the person subject of potential disclosure if that disclosure were not made. Put simply, there must be a ‘pressing need’ to reveal the information.
In this case, the detective inspector had not done enough to discharge his duty. Mr Justice Langstaff was concerned that the detective failed to obtain a “clear and professionally mediated view of the risk… to show whether the behaviour which he had identified was the sort of behaviour which might indicate the potential risk of serious sexual assault“.
And, more worryingly, there was “no empirical evidence on which it could be said that someone exhibiting these characteristics would pose any real risk of re-offending, let alone offending”.
The police are under great pressure to preempt crime and spot sexual criminals before they offend. This is in part because they are the first to get the blame following an assault if the perpetrator had behaved suspiciously leading up to the attack. But this behaviour is sometimes only suspicious in retrospect, and undue public pressure can lead to paranoid policing.
What is clear from this case is that the police must be very careful indeed before making predictions based on private sexual behaviour. The judge concluded that issues involving sex, are “deeply emotive” and are “most likely to arouse prejudice, assumption and overreaction.” This is not to underemphasise the seriousness of sexual assault, but any disclosure of a person’s private sex life must be taken with the greatest care.
It is very difficult to sue the police in England, and the courts have generally been reluctant to change this. The rationale is that they should focus on fighting crime rather than cases in court. This is sensible, but mistakes are sometimes made, and the Human Rights Act can provide citizens with a bulwark against negligence. The case of ‘A’ shows that before they publicise potentially ruinous information about a person’s sex-life, the police have to be very sure that the disclosure is necessary and proportionate to the aim of protecting the public.
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