The High Court has allowed a claimant to proceed with claims against public bodies and their officers based on the way in which they have investigated safeguarding concerns. While the merits of the claims have yet to be decided, the ruling emphasises that investigations and the way in which they are recorded must be scrupulously fair. In this case, a previous incident was repeatedly highlighted in the investigation records, without any reference to the fact that the police had conclusively found the claimant not to be responsible.

Mr D was working as a teacher at a school in 2010 when a sixth former made a complaint that he had tried to kiss her without her consent. He was suspended from work. The school conducted a disciplinary investigation and the local authority instituted a safeguarding investigation and a referral to the Independent Safeguarding Authority.  

The investigations revealed, among other things, that in 2001, Mr D had been arrested as a suspect after a woman made a complaint of attempted rape. Mr D was never charged with any offence. The police files stated that the investigation had found CCTV pictures of Mr D in a bar at the time when the assault was taking place elsewhere. The investigating officer recorded: “It is apparent [D] is not responsible for the crime.”

Mr D has sued a number of different defendants, namely the headmaster of the school, two local authorities, and two individual officers of those authorities. In summary, Mr D alleges that the way in which information about him has been recorded and communicated during the investigations amounts to defamation; that it breaches the Data Protection Act; and that it breaches his right to a private life under Article 8 of the European Convention on Human Rights.

The defendants applied for summary judgment, in other words for the claims to be thrown out without a full trial. In a ruling given on 23 July 2012, the High Court refused their application. The court has encouraged the parties to deal with Mr D’s Data Protection Act claim first and highlighted one particular point about the way in which information about Mr D has been recorded.  

Mr D has previously sued the police force that investigated him in 2001 in connection with the way in which it dealt with an enhanced criminal records check relating to a job application he had made. The court in that case made it very plain that the police investigation concluded that Mr D was not there when the offence was taking place. It is one thing for the police to decide that they do not have enough evidence to charge someone – it is very different for them to conclude that a suspect is definitely not “the right man”.

This was all a matter of public record. Despite this, the local authorities’ paperwork made repeated references to Mr D’s arrest on suspicion of attempted rape. To quote the judge: “Not one of these documents refers to the explanation for why the case against [Mr D] went no further (namely because the police had seen CCTV footage of him in another place at the time of the alleged incident).” The paperwork could have given the impression that Mr D had “got away with it” in 2001, when in fact he has been very publicly exonerated.

The final outcome of these claims is not certain, but this ruling highlights the importance of being fair when carrying out investigations and taking care in what is recorded. Obviously, safeguarding investigations have to consider “soft” intelligence as well as solid findings of fact. However, those involved in carrying out such investigations should take care not to give a false impression. If someone has been the subject of previous allegations which were found to be false or incorrect, either there should be no reference to them or it should be made very clear why they were not pursued.