02 Aug 2018

In R (on the application of AR) v Chief Constable of Greater Manchester Police and another [2018] UKSC 47, the Supreme Court upheld a decision dismissing an application for judicial review brought after details of an individual's acquittal for rape were disclosed to prospective employers in enhanced criminal records certificates.

Background

An enhanced criminal records certificate (ECRC) can be applied for from the Disclosure and Barring Service (DBS) in respect of certain positions that involve working with children and vulnerable adults. Enhanced DBS checks are more comprehensive than standard DBS checks and include:

  • convictions, both spent and unspent
  • cautions, both spent and unspent
  • police reprimands and warnings
  • relevant police information; and
  • where appropriate to the post, any information stored about the person on statutory lists (containing details of people who are considered unsuitable to work with children and vulnerable adults).

Before an ECRC is issued, the chief officer of every relevant police force is asked to provide any information which they "reasonably believe to be" relevant and ought to be included in the certificate. It is up to the police to decide what extra information is added to the certificate.

Facts

AR was working as a taxi driver in 2009 when he was arrested and charged with the rape of a 17 year old female passenger. The case went to court in 2011 and AR pleaded not guilty and was acquitted. AR was also a qualified teacher. Following the court case, he applied for a number of teaching jobs and also taxi driving jobs and, in the course of the application process, two enhanced ECRCs were issued in March 2011 and March 2012. Both certificates included the fact that he had been acquitted of rape and gave details of the allegations against him. This information had been provided by the Chief Constable of Greater Manchester Police.

High Court decision

In December 2012 AR made an application for judicial review, challenging the lawfulness of including details of his acquittal in the ECRCs on the basis that it infringed his rights under Article 6.2 (presumption of innocence) and Article 8 (the right to respect for a private life) under the European Convention on Human Rights.

The High Court rejected AR's application. Judge Raynor QC held that Article 6.2 was not engaged as the disclosure did not contain any suggestion that AR was, or should have been, convicted. The High Court accepted that Article 8 was engaged but found that any interference with AR's private life was proportionate and "no more than was necessary to meet the pressing social need for children and vulnerable adults to be protected".

Court of Appeal decision

AR appealed unsuccessfully to the Court of Appeal.

Supreme Court decision

AR then appealed to the Supreme Court. It unanimously dismissed his appeal and ruled that disclosing his acquittal was proportionate in the context of his job application. In Lord Carnwath's view it was relevant that information about the charge and acquittal was not a secret and was a matter of public record, which might have come to an employer's attention via another source, such as the internet. 

Relying on the case of R (L) v Commissioner of the Police of the Metropolis [2010] 1 AC 410, Lord Carnwath held that the requirement to protect potential young and vulnerable people outweighed the potential prejudicial effect of such disclosure.

Comment

This case raises the question as to whether people who are acquitted of serious sexual offences face unfair stigmatisation. While only a very small proportion of ECRCs refer to acquittals, Lord Carnwath expressed concern regarding the lack of guidance to employers about how to deal with such disclosures and how much weight to attribute to them. He said: "Even if the ECRC is expressed in entirely neutral terms, there must be a danger that the employer would infer that the disclosure would not have been made unless the chief officer had formed a view of likely guilt". There is guidance relating to how to deal with convictions but none on how to deal with people who are acquitted who, he said "surely deserve greater protection from unfair stigmatisation".

The application was dismissed but the Court expressed unease about the injustice that can occur when acquittals are included in ECRCs and it is likely that cases such as this will continue to be challenged in the future.