Supreme Court Considers Legality of Enhanced Criminal Record Checks

IIn the case of R (AR) v Chief Constable of Greater Manchester Police, the Supreme Court assessed whether it was a breach of AR's right to a private life and right of presumed innocence for an Enhanced Criminal Record Check (ECRC) to include the fact that he had been acquitted on a charge of rape.

Background

AR was charged with the rape of a 17 year old woman whilst he was working as a taxi driver. At trial, a jury found AR not guilty and he was acquitted.

AR is a qualified teacher, and subsequently applied for several teaching jobs. Part of the application process for these jobs required AR to provide an enhanced criminal records certificate, which is issued by the Disclosure and Barring Service (DBS). The certificate contained the following information about the rape charge, which was provided by the Chief Constable of the Greater Manchester Police:

"On 4/11/09 police were informed of an allegation of rape. A 17-year-old female alleged that whilst she had been intoxicated and travelling in a taxi, the driver had conveyed her to a secluded location where he forcibly had sex with her without her consent.

AR was identified as the driver and was arrested. Upon interview he stated that the female had been a passenger in his taxi, but denied having sex with her, claiming that she had made sexual advances towards him which he had rejected. Following consideration by the Crown Prosecution Service, he was charged with rape of female aged 16 years or over, and appeared before Bolton Crown Court on 21/01/11 where he was found not guilty and the case was discharged."

AR appealed under the police complaints procedure. The appeal was rejected, and it was noted under the reasons for the rejection that, owing to the CPS' decision to prosecute, an acquittal was not necessarily indicative of innocence, but instead that it was not possible to determine guilt beyond all reasonable doubt.

AR applied for judicial review, initially in the High Court and subsequently in the Court of Appeal. We reported on those decisions in a previous article.

Supreme Court Decision

The Supreme Court was asked to decide if the correct balance had been struck between the two competing objectives of protecting AR's right to private and family life, and protecting young and vulnerable people. The appeal was unanimously rejected with the Supreme Court deciding that the requirement to protect young and vulnerable people outweighed AR's Article 8 rights. Among the reasons for this decision were:

• that the High Court was entitled to accept that the information was not lacking in substance
• that the information was a matter of public record and may come to the attention of a prospective future employer from another source
• that the High Court had considered the detrimental impact of the disclosure of this information on AR's future employment prospects but found this to be outweighed by the need for disclosure in order to protect vulnerable groups

In a postscript to the Supreme Court decision, Lord Carnwath raised general concerns about the value of including reference to acquittals in an ECRC, and about the lack of guidance available to employers about how to treat such information once disclosed.

In this case the Chief Constable argued that the information in the ECRC formed only part of the information that a prospective employer would have when making an appointment decision. However, it has been noted in previous case law that an adverse ECRC is likely to be a 'killer blow' to an application for a sensitive position.

Best Practice

Employers remain lawfully entitled to reject an application on the basis of information disclosed in a criminal records certificate. However, a criminal record is not necessarily a bar to employment and employers should strive to act fairly towards such applicants. Whilst guidance may be helpful it could also be difficult to apply to the many different work types that are eligible for criminal records checks. In the absence of any such guidance a reasonable approach would be to treat each case on its facts, using objective and measurable criteria to assess any criminal records information that is disclosed.

For more information please contact Gareth Edwards in our Employment Law team on 0117 314 5220.