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Supreme Court Decision: Enhanced Criminal Records Certificate Reference to Rape Charge Deemed Proportionate

The Supreme Court has recently confirmed that reference to a rape charge and subsequent acquittal on Enhanced Criminal Records Certificates (‘ECRC’) is reasonable and proportionate.

The case, R (on the application of AR) v Chief Constable of Greater Manchester Police and another, centred around AR.  AR who was qualified to work as a teacher had been charged with rape but acquitted at trial by a jury.  It should be noted that the Crown Prosecution Service (‘CPS’) decided to prosecute AR which indicates that they believed that on the balance of probabilities the allegation was true.

AR subsequently made numerous applications for teaching roles – teaching roles require ECRCs as a result of s.113B of the Police Act 1997.  The ECRCs contained details of AR’s rape charge and also confirmed that AR was acquitted in relation to the charge.  AR made an appeal to the police over the inclusion of the charge in his ECRC.  This appeal was dismissed – amongst the reasons for rejection of the appeal was that the CPS’s decision to prosecute indicated that on the balance of probabilities the allegation was true and that the risk to vulnerable people (in this case AR’s potential students) was far greater than the impact on AR’s human rights.

After unsuccessfully applying for a teaching role, AR applied to work as a private hire driver, another role that required an ECRC.  Once more, AR’s ECRC contained details of his rape charge and he initiated an internal appeal.  AR’s internal appeal was rejected and as a result AR requested judicial review from the High Court, stating that his right to a private life under Article 8 of the European Convention on Human Rights (‘ECHR’) had been breached, amongst other issues.

The High Court held that the reference to AR’s rape charge on his ECRC was a proportionate interference with AR’s right to a private life under Article 8 of the ECRC, it was held that disclosing AR’s rape charge was ‘no more than necessary to meet the pressing social need for children and vulnerable adults to be protected’.  As a result of his unsuccessful High Court judicial review, AR unsuccessfully appealed to the Court of Appeal and finally to the Supreme Court.

The Supreme Court dismissed AR’s appeal.  The argument that details of AR’s rape charge should not have been included on the ECRC unless a positive view of guilt could be formed was rejected by the Supreme Court.  The Supreme Court held that the High Court’s acceptance of the police’s submission that the rape charge was ‘not lacking substance’ and ‘might be true’, was acceptable.  The fact that AR’s charge and subsequent acquittal was on the public record, was deemed important by the Supreme Court.  The Supreme Court also followed the judge of first instance’s view that the employment difficulties caused by the contents of the ECRC for AR were no more than necessary in order to fulfil the social needs (including the protection of vulnerable people) that the ECRC was implemented for.

It must be noted that this appeal was made and subsequently dismissed on narrow grounds – namely the inclusion of an individual’s rape charge, the details of the charge and confirmation of the individual’s acquittal, on an ECRC and it is unclear what is allowed to be included on an ECRC in different circumstances.  This was acknowledged by the Supreme Court in the present case who made reference to a lack of guidance in respect of the inclusion (on ECRCs) of different acquittals based on different circumstances.  The Supreme Court stated that ‘careful thought (must) be given to the value (…) of disclosing allegations (…) which have led to an acquittal [in court]’.

This bulletin is for general guidance purposes only and should not be used for any other purpose.

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