Acquittals can be disclosed on enhanced criminal records certificates

It was not a breach of the Article 8 right to privacy for a chief constable to include details of an individual’s acquittal on a charge of rape on an…

R (on the application of AR) v Chief Constable of Greater Manchester & Another Supreme Court (Lords Kerr, Reed, Carnwath, Hughes and Lloyd-Jones ) [2018] UKSC 47


Executive summary

It was not a breach of the Article 8 right to privacy for a chief constable to include details of an individual’s acquittal on a charge of rape on an enhanced criminal records certificate (ECRC).

Background

In January 2011 the claimant was acquitted of rape at the Bolton Crown Court. The charge arose from his work as a taxi driver. Following his acquittal he applied for an ECRC to support a job application for work as a lecturer. His acquittal was disclosed in an ECRC in March 2011 under the section ‘other relevant information disclosed at the chief constable’s discretion.’ The section included the allegation that the claimant had driven the 17 year old female victim to a secluded spot to commit the crime, details of his denial and the fact of acquittal.

The claimant objected to the contents of the ECRC. The Force Information Governance Unit rejected the objection, noting that the chief constable had taken into account that as a lecturer the claimant would have access to vulnerable females. As to the quality of the information, the chief constable responded that the CPS had decided that there was a realistic prospect of a conviction so on the balance of probabilities the allegation was more likely true than false. The criminal burden of proof was higher than that for criminal record disclosure and the acquittal merely showed that the allegation could not be proved beyond reasonable doubt. The chief constable decided that disclosure was proportionate because of the serious nature of the allegation, weighed against the inevitably detrimental effect on the claimant’s job application.

The claimant issued judicial review proceedings alleging a breach of his Article 8 right to privacy. He failed in the Administrative Court and Court of Appeal and appealed to the Supreme Court.

Decision

The Supreme Court noted the dicta in R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3. In applying the statutory test of deciding what ‘ought to be included’ the chief constable had to balance the need to protect vulnerable people against the Article 8 right to privacy. Relevant factors to consider included the gravity of the subject matter, its reliability, whether a claimant had the opportunity to rebut the information, the period elapsed since the events and the impact it would have on the job application. The 2015 Statutory Disclosure Guidance mirrored this decision by stating that relevant factors included the seriousness, currency and credibility of the allegations.

The Supreme Court ruled that the chief constable was not required to undertake a detailed review of the evidence given at trial. In the absence of a positive indication of innocence, the chief constable was entitled to conclude that the evidence was not lacking in substance and might be true. The chief constable had been in error in trying to judge the truth of the allegations and concluding that they were more likely to be true, but the information was a matter of public record, was relatively recent and was of a serious nature. The allegations were therefore of sufficient weight to outweigh Article 8.

There were employment difficulties for the claimant but disclosure was proportionate and no more than was necessary to meet a pressing social need. The procedure adopted was correct. The chief constable was aware of the claimant’s circumstances and there was no additional information that could have been raised.

Comment

Disclosure of this acquittal was lawful. The chief constable was assisted by a clear audit trail which recorded the gravity of the offence and the credibility of the allegations and weighed disclosure against its effect on the claimant.

However, the Supreme Court noted with concern the absence of clear guidance about how employers should treat acquittals. Although it was said that very few acquittals were in fact disclosed, there was a danger employers would conclude that disclosure meant a chief constable had formed a view of likely guilt. Further guidance for employers is urgently required. In the meantime, chief constables should exercise great care when considering disclosure and should follow the exacting tests set out in this judgment.

For any further information please contact John Riddell, Partner.  

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