An enhanced criminal record certificate may include details of a serious criminal allegation even though the applicant was acquitted, where disclosure is a proportionate interference with the right to respect for private life. The Supreme Court so held in dismissing AR’s challenge to certificates recording a rape charge and his acquittal. It also held that an appellate court should not revisit a judge’s proportionality assessment unless the reasoning contains an identifiable flaw.
AR was acquitted of a serious sexual offence. Nothing in the Supreme Court’s decision disturbed that acquittal.
He later sought enhanced criminal record certificates for work for which the police considered safeguarding relevant. The certificates recorded the allegation, his denial and the acquittal. He argued that an employer seeing the allegation might reject him despite the verdict.
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On judicial review the judge rejected the suggestion that the decision to charge by itself made the allegation more likely to be true. He nonetheless held that its seriousness and relevance to the work, balanced against the harm to AR, justified disclosure on these facts.
The Court of Appeal dismissed the further appeal. On article 6.2, for which the Supreme Court later refused permission, McCombe LJ held that stating the allegation and the acquittal did not undermine the verdict or assert guilt. On article 8 the Court, following its approach in an earlier case, asked only whether the judge had made a significant error of principle and found none, so it did not reassess proportionality itself.
Enhanced certificates and the required balance
The 1997 Act provides for ordinary conviction certificates, criminal record certificates and enhanced certificates. An enhanced certificate, available for prescribed purposes such as work with children or vulnerable adults or certain licences, may add information which the chief officer considers might be relevant to the exempted question and ought to be included. That addition depends on opinion, not on a conviction or caution.
In R (L) v Commissioner of Police of the Metropolis the Supreme Court had held that “ought to be included” must be given full weight so as to respect article 8. The need to protect vulnerable people must be balanced against the applicant’s private life. Relevant considerations can include gravity, reliability, any opportunity to answer the information, relevance to the particular application, the time since the events, and the effect on the applicant’s prospects.
When an appellate court may intervene
Lord Carnwath, with whom Lord Kerr, Lord Reed, Lord Hughes and Lord Lloyd-Jones agreed, held that the Court of Appeal had asked too narrow a question. Under the rule then governing appeals, the issue is whether the decision below was wrong. A decision may be wrong because of an error of principle or because of an identifiable flaw in the reasoning, such as a gap in logic, inconsistency, or a failure to take account of a material factor. It is not enough that the appeal court might itself have struck the balance differently. If there is no such error or flaw, the appeal court need not carry out the proportionality assessment again.
Why the disclosure was proportionate
It was accepted that disclosure interfered with AR’s article 8 rights. The question was whether it was necessary for the protection of the rights and freedoms of others.
The complaint of procedural unfairness was rejected. The officers knew from the trial the nature of AR’s defence and his circumstances, and they considered the effect on his employment. Nothing indicated further information he would have put forward.
On the substance, the Court rejected the argument that disclosure required a positive finding of likely guilt on the balance of probabilities, reached by a detailed analysis of the trial evidence. The chief officer’s task is to identify relevant information, not to hold a mini-trial or to take the place of the judge and jury, who heard the witnesses. Expressing a view that the allegation was more likely true than false was therefore an error by the reviewing officer. Judge Raynor did not make that error. He went no further than accepting that the information was not lacking in substance and that the allegation might be true.
That limited conclusion could still support disclosure. The charge and acquittal were matters of public record. Their potential significance lay in the seriousness of the alleged offence, its relevance to the posts sought, and how recently it was said to have occurred, factors already identified in L’s case as capable of justifying inclusion. Against that, the judge took account of the damage to AR’s employment prospects and held that the disclosure went no further than the pressing need to protect vulnerable people required. No flaw in that reasoning was shown.
Concerns left outside the appeal
Lord Carnwath added that the case exposed wider difficulties in using enhanced certificates after a failed prosecution or an acquittal. The material before the Court showed little clear guidance on the weight of an acquittal, and little evidence of how employers actually use such disclosures. Even a neutrally worded certificate might lead an employer to assume that the police believed the applicant was likely guilty. Those issues, and the practical value of disclosing allegations already tested at trial, called for consideration beyond this appeal. Information from Greater Manchester Police indicated that certificates containing acquittal information were a very small part of the enhanced certificates it processed.
Verdict: The Court unanimously dismissed AR’s appeal. It found no identifiable flaw in the judge’s conclusion that disclosure was proportionate under article 8 in this case. The Court made no finding that AR had committed the offence of which he had been acquitted.
Source: R (AR) v Chief Constable of Greater Manchester Police and another [2018] UKSC 47
