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R (on the application of AR) v Chief Constable of Greater Manchester Police & Anor Supreme Court | 30 July 2018

30 July 2018
The Supreme Court has upheld a decision dismissing an application for judicial review brought after details of the appellant's acquittal relating to a charge of rape were disclosed to prospective employers in a number of Enhanced Criminal Record Certificates.

Background

In January 2011, the appellant was acquitted of rape against a 19-year-old female by a Jury. The crime was alleged to have been committed in November 2009. Despite the acquittal, two Enhanced Criminal Record Certificates (ECRCs) were issued in March 2011 and March 2012 on behalf of the Department for Home Affairs ("DHA") in respect of the appellant's prospective employment as a teacher and a taxi driver respectively. The summary details within the ECRC were based on information given by The Chief Constable of Greater Manchester Police ("GMP") to the DHA.  GMP had relied on Section 113B (4) of the Police Act 1997 in providing the information.

Judicial Review

In proceedings issued in December 2012, the appellant challenged the lawfulness of the inclusion of details relating to the allegation and the acquittal on the basis that it infringed his rights under Article 6.2 (the presumption of innocence) and Article 8 (the right to respect for a private life) of the European Convention on Human Rights ("ECHR").

Judge Raynor QC held that Article 6.2 was not engaged as the disclosure did not contain any suggestion that the appellant was, or should have been, convicted of the offence. The court acknowledged that the appellant's Article 8 Right was infringed but dismissed the appeal on the basis that such interference was reasonable, proportionate and no more than necessary in order to secure the objective of protecting young and vulnerable persons.

Court of Appeal

In the Court of Appeal, McCombe LJ, in dealing with the issue pursuant to Article 6.2 ECHR, acknowledged that it was not open to the state to undermine the effect of the acquittal. He found that the reasoning behind a decision to charge, coupled with an officer's belief that certain information might be true, does not cast doubt on an acquittal in a criminal proceedings. However, he concluded that the issue of the ECRC did not undermine the acquittal. It was not insinuated that the appellant was guilty, but it was an explicit alert to potential employers about the possible risk to vulnerable persons.

LJ McCombe found no error in the judgment of the High Court in relation to the issue of Article 8 ECHR.

Supreme Court Decision

The issue before the Supreme Court was whether the admitted interference with the appellant's Article 8 Convention right was justified, namely whether disclosure of an acquittal is disproportionate where full details of the evidence at trial are not obtained and the allegations are not established on the balance of probabilities; and whether disclosure of an acquittal in an ECRC is in accordance with law when no independent review of the information occurs prior to disclosure. The Supreme Court unanimously dismissed the appeal and upheld the reasoning of the Court of Appeal.

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

Although the appeal was dismissed, Lord Carnwath raised concerns in a postscript to his judgment about the ECRC process and the lack of guidance given as to what weight can be placed on an information obtained in the course of a trial which results in an acquittal. He states that although "acquittal by a criminal court following a full trial can said to imply no more than that the charge has not been proved beyond reasonable doubt"…"careful thought needs to be given to the value in practice of disclosing allegations which have been tested in court and have led to acquittal".

Read the judgment: AR, R (on the application of) v Chief Constable of Greater Manchester Police & Anor [2018] UKSC 47 (30 July 2018)

Further Reading