R (AR) v CC Greater Manchester Police & Another  UKSC 47
The Supreme Court has affirmed the legality of disclosing criminal allegations (which had been tried and acquitted) on a professional’s Enhanced Criminal Record Certificate.
The appellant was accused of raping a 19 year old woman whilst working as a taxi driver in November 2009. He was charged and the matter proceeded to trial in January 2011 where he was acquitted. He subsequently applied for a lecturing post, and later a license to work as a taxi driver, both of which necessitated an application for an Enhanced Criminal Record Certificate (ECRC). The subsequent ECRCs contained summary information about the allegation, charge and acquittal. That was based upon information provided by the Chief Constable of Greater Manchester Police.
The appellant challenged the disclosure on the basis that the information was so prejudicial as to prevent him from being fairly considered for employment as a teacher or taxi driver. The Criminal Records Bureau (as it then was) rejected numerous challenges to the disclosure, maintaining that the disclosure complied with section 113B(4) of The Police Act 1997 as the chief officer reasonably believed the information to be relevant to the employment applied for and that it ought to be included in the ECRC.
In December 2012, the appellant issued Judicial Review proceedings and asked the court to consider following issues:
i) whether the disclosure breached the presumption of innocence under article 6.2 of the European Convention on Human Rights (ECHR);
ii) whether it was procedurally unfair; and
iii) whether the disclosure breached the right to respect for his private and family life under article 8 of the ECHR.
His Honour Judge Raynor QC dismissed the claim, concluding that the disclosure did not breach article 6.2 and there had been no procedural unfairness. As to article 8, he found that although it had been infringed, the disclosure was reasonable, proportionate and no more than necessary to protect the young and vulnerable.
The Judge took the view that nothing could be assumed from the fact of the acquittal other than that the jury was not satisfied of his guilt to the criminal standard of proof (beyond reasonable doubt). The threshold for disclosure of information on an ECRC was to be determined according to the civil standard of proof (on the balance of probabilities) and therefore the fact that the allegation might be true, notwithstanding the criminal acquittal, was a sufficient basis for disclosure.
The case proceeded to the Court of Appeal who thoroughly assessed the extensive UK and European authorities on article 6.2. They acknowledged that it is not open to the state to undermine the effect of an acquittal (i.e. by suggesting that the acquittal was wrong) but concluded that the purport of the certificates was to merely state the fact of the allegation/acquittal and, therefore, it did not undermine the acquittal per se. The Court dismissed the claim of procedural unfairness and found no error in the High Court’s judgment in respect of article 8.
Permission to appeal was given solely in relation to the article 8 issue concerning whether the interference with the appellant’s article 8 right was justified.
The Supreme Court upheld the Court of Appeal’s reasoning and unanimously dismissed the appeal. In considering the balance between the appellant’s article 8 rights and the need for disclosure, the Court approved the judgment below where the Judge had taken ‘full account of the possible employment difficulties for AR, but regarded those as “no more than necessary to meet the pressing social need” for which the ECRC process was enacted’.
Our Healthcare team are often asked to advise healthcare professionals in relation to criminal records and DBS disclosure issues. In our experience many clinicians, and indeed other professionals, are surprised to discover that the police can legally disclose allegations on their ECRC that may not be true and for which that individual has been acquitted at trial or has not even faced a criminal charge.
Section 113B(4) of The Police Act 1997 provides that the chief officer may disclose “any information” which s/he reasonably believes to be “relevant” and “ought to be included” on the certificate. There is no statutory guidance about how to apply these rules when a defendant has been acquitted and it remains a matter for the chief constable’s judgement. Although the chief officer is permitted to take steps to ascertain the validity of the allegations, such as requesting transcripts of the trial, this would be onerous and rarely happens in our experience.
The Appellate Courts have repeatedly stressed that acquittals can form the subject of DBS disclosure because an acquittal does not prove the defendant’s innocence. In principle, an acquittal shows only that the charge was not proved to the criminal standard (beyond reasonable doubt).
In deciding whether information “ought to be included” the police must balance the competing interests of the protection of the young/vulnerable and the individual’s article 8 right to respect for their private life. That involves an assessment of proportionality but, in seeking to protect vulnerable persons, the Courts have accepted that the balance will favour the public to the detriment of the acquitted individual.
The UK and European Courts have dealt with this issue on the basis that, provided the acquittal is not undermined and the wording of the disclosure does not suggest that the individual was guilty of the criminal offence, then disclosure can proceed without breaching the individual’s article 6 right. An ordinary person reasonably expects to be presumed innocent until proven guilty and, if acquitted, to be free of the stigma of the criminal allegation(s). That a mere allegation could affect their employment prospects indefinitely will undoubtedly cause alarm and is likely to be viewed by many professionals as draconian and disproportionate.
Employers are entitled to make informed recruitment decisions. However, in the absence of any statutory guidance about how much weight should be given to the relevant information, they can only speculate as to its significance and the consequent risk posed by a potential applicant. In the competitive and risk averse employment environments of most professionals it seems unlikely that an employer would undertake enquiries to assess the relevance of the information before rejecting a candidate with such disclosure on the ECRC; in our experience such applicants face significant difficulties getting to even the interview stage where they might have an opportunity to explain the disclosure. To that end, Lord Neuberger’s comments in the case of R (L) v Commissioner of Police of the Metropolis seem to more realistically acknowledge the reality that such disclosure is likely to represent a “killer blow” to the hopes of a person aspiring to a post which requires an ECRC.
Co-authored by BLM's Adam Weston, Partner, and Aliyah Hussain, Professional Support Chartered Legal Executive.