Labour & European Law Review Weekly Issue 478 13 July 2016
The Court of Appeal has held in R (on the application of AR) and the Chief Constable of Greater Manchester police and anor that it was not a breach of articles 6 and 8 of the European Convention on Human Rights (ECHR) for the police to disclose details of an allegation of rape and subsequent acquittal in an Enhanced Criminal Record Certificate.
AR, a qualified teacher, was working as a taxi driver when he was charged with the rape of a 17-year old woman when she was travelling in his taxi. He stood trial and was acquitted in January 2011. He subsequently applied for work, firstly as a teacher and secondly as a taxi driver, for which he required an Enhanced Criminal Record Certificate. However, when these were issued by the Criminal Records Bureau (CRB) on behalf of the police, he discovered that details of the allegation and the acquittal had been disclosed.
AR’s complaint about the disclosure under the internal procedures was rejected by the Greater Manchester police. The reviewing officer noted in her reasons that, given the decision by the CPS to prosecute, the rape allegation was more likely to be true than false. The officer decided this because the test for criminal conviction was higher than that required for the CRB, the allegations were more likely to be true than false and that the information should therefore be disclosed.
AR then brought judicial review proceedings in the High Court, arguing that the disclosures breached article 6 (right to a fair trial) and article 8 (right to respect for private and family life) under the ECHR. In particular, he argued that the decision in the case of Allen v UK made clear that “the aim of of Article 6.2 (after acquittal) is to protect the individual who is acquitted from being treated in subsequent proceedings or by public officials as if in fact guilty of the offence charged”. He argued that he had been treated as if he had been guilty of the crime.
High Court decision
The High Court held, however, that the police had not breached article 6(2) by implying in a statement made lawfully under the Police Act 1997, that, notwithstanding the acquittal, the claimant might in fact have committed the act complained of in a criminal charge.
Although disclosure did interfere with his rights under article 8, this was outweighed by the potential risk to the vulnerable as opposed to the detriments that would be caused to AR, given the seriousness of the alleged offence and its relatively recent occurrence. The court concluded that disclosure was therefore both justified and proportionate.
Decision of Court of Appeal
Although there was no single approach about how to decide whether or not there had been a violation of section 6(2), the Court of Appeal held that taken as a whole, AR’s acquittal was not undermined by the certificate being issued as it did not state that he was guilty of the offence. It simply set out the facts and did not contradict the effect of the verdict to acquit him. The fact that an employer might perceive AR as a risk to a vulnerable individual did not contradict the effect of the verdict. In any event, article 6(2) only applied to documents in the public domain and not to internal review documents.
Finally, the Court held that the judge had correctly understood that a balance had to be struck between the potential risk to the vulnerable if AR obtained the post for which he was applying and the interference with his rights under Article 8 in the event of any detriment that he would suffer by the disclosure. The judge saw that the balance was a difficult one to strike but had correctly weighed up the relevant pros and cons.
This case shows that even if someone has been acquitted of a criminal offence, it is not the end of the matter. When including relevant police information in an enhanced criminal record certificate, it is necessary for the police to have regard to the rights of the individual before disclosing relevant information. They need to be satisfied that the information is relevant and that it ought to be included in the circumstances for which a certificate has been requested. Different roles applied for can therefore bring different results on a certificate. Whether it ought to be included involves a consideration of the human rights arguments. Where the person has been acquitted the police must not suggest that they believe the person is in fact guilty. But it is not a breach of article 6(2) to imply that, the person might have committed the offence. Also in some cases it may not be appropriate for the police to mention an acquittal, once the proportionality test in article 8 is applied. For example, where the alleged offence has no bearing on the employment in question. Ultimately, whether the disclosure is lawful will depend on the circumstances of each individual case.