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08 October 2018

119: Disclosure of rape acquittal was not a breach of the right to privacy

An enhanced criminal records check (ECRC) is only available for certain roles, such as those involving work with children or vulnerable adults. An ECRC must include details of both spent and unspent convictions and cautions; police reprimands and warnings; and other ‘relevant police information’. This is information which a chief officer of police reasonably believes to be relevant to the role, and could therefore include details of unproven allegations. In the recent case of R (on the application of AR) v Chief Constable of Greater Manchester Police and another, the Supreme Court had to consider whether including a rape acquittal on an ECRC was a breach of the right to respect for private and family life under Article 8 of the European Convention on Human Rights.

AR was tried and acquitted of the rape of a 17 year old passenger whilst working as a taxi driver. He subsequently applied for several teaching posts and a private hire driver role which required an ECRC. This disclosed details of the rape allegations, his trial, and acquittal. AR appealed, arguing that he was being treated as if he was guilty of the crime, in breach of his right to respect for private and family life under Article 8, and that this meant that he could not be fairly considered for employment. The police argued that the information was relevant to his job applications and that acquittal was not proof of innocence; it only confirmed that guilt had not been proved beyond reasonable doubt. Both the High Court and Court of Appeal dismissed AR’s claim, ruling that although Article 8 was engaged, disclosing the circumstances of the rape acquittal was reasonable and proportionate. The police had been justified in concluding that the potential risks to children and vulnerable adults outweighed the detriment caused to AR as a result.

The Supreme Court has now also dismissed AR’s appeal. It rejected his submission that including information on his acquittal could not be justified for the purposes of Article 8 unless the police had undertaken a detailed analysis of evidence from the trial. The role of the police in relation to the ECRC was only to identify and disclose relevant information. Here, having taken into account the seriousness of the charge and its relevance to the roles applied for, the Chief Constable had concluded that the information was not lacking in substance and that the allegations might be true. The need to protect children and vulnerable adults outweighed AR’s Article 8 rights. It was also relevant that the charge and acquittal were a matter of public record and could be accessed by potential employers by other means.

Employers are entitled to reject a job application on the basis of information disclosed in a criminal records certificate. However, it is worth noting that although the Supreme Court reached a clear conclusion in this case, it also raised general concerns about the value of disclosing details of acquittals in ECRCs and the lack of guidance for employers on how to treat this information. Given the draconian consequences for an individual’s career prospects, the Supreme Court suggested that careful thought needs to be given to whether those who have been acquitted deserve greater protection from unfair stigmatism.

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