Alerts

Guilty even if proven innocent?

When applying for certain roles, job applicants are subject to criminal records checks, undertaken via the Disclosure and Barring Service (formerly known as the Criminal Records Bureau).

Enhanced checks are required for specified roles, such as those that involve working with children or vulnerable adults. An enhanced disclosure includes details of convictions, cautions, police reprimands, warnings and ‘relevant police information’.

If an applicant has previously been acquitted of a crime, is it a breach of their human rights for the Police to nevertheless include details of the allegations when responding to an enhanced check?

R (on the application of AR) v The Chief Constable of Greater Manchester Police and another

“AR” is a qualified teacher. Previously, he had worked as a taxi driver and had faced an allegation of rape in November 2009. The allegation had been made by a 17 year old girl that had been a passenger in AR’s taxi. AR had denied the allegation of rape and was subsequently found not guilty by a jury at Bolton Crown Court.

In 2011 AR applied for a teaching job, triggering a CRB check. When the enhanced criminal record certificate came back it contained details of the rape allegation but did set out that the case has been discharged after he was found not guilty. Notwithstanding the acquittal, AR was unsuccessful in his job application.

AR later applied for a job as a private hire driver. A CRB check was again requested and the ensuing certificate referred to the allegations. He was unsuccessful with his application.

AR appealed against the decision to provide the information under Greater Manchester Police’s internal procedures. Having been reviewed by a civilian officer, the appeal was rejected.

AR brought judicial review proceedings in the High Court against the decision to include the information. He relied upon Articles 6(2) and 8 of the European Convention on Human Rights, which is incorporated into UK law by the Human Rights Act 1998. Article 6(2) provides that everybody charged with a criminal offence shall be presumed innocent until proven guilty according to law. Article 8 provides that everybody has the right to respect for his private and family life, his home and his correspondence and that no public authority can interfere in that right unless it is accordance with the law and necessary in a democratic society in the interests of national security, public safety and the prevention of disorder or crime, the protection of health or morals or for the protection of the rights of freedoms of others.

In considering AR’s case, the High Court found that there was no breach of Article 6(2). The Court found that, notwithstanding his acquittal, it was acceptable for the Police to include the information as they suspected that he might have committed the act complained of. There was nothing in AR’s enhanced criminal record certificate to say he had committed the crime or that he should have been found guilty, just that he might have done it.

In relation to Article 8 the Court was satisfied that the certificate went no further than was necessary to protect children and vulnerable adults. Whilst there was a balance to be struck between the intended protection and AR’s human rights, the judge was satisfied that the balance had been struck and the decision to disclose the information was proportionate in the circumstances.

AR appealed to the Court of Appeal.

Decision

AR’s appeal was unsuccessful. The Court of Appeal could find no authority to suggest that an acquittal couldn’t be disclosed in these circumstances. There may be situations where somebody has been acquitted and throughout the process it has clearly been shown that they had not committed the crime (for example where someone else had been convicted) but this was not one of those circumstances. The Court found that whilst it had not been proven beyond all reasonable doubt that AR had committed the offence, the allegations still amounted to relevant police information for these purposes. Article 6(2) could therefore not be relied upon by AR to argue that the information should not be disclosed.

The Court of Appeal found that there had been no significant error of principle in the way that the High Court had considered the issue of privacy under Article 8 and therefore rejected this part of the appeal.

Comment

When including relevant police information in an enhanced criminal record certificate, it is necessary for the Chief Constable of the specified Constabulary 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.

This case clarifies that there is a significant difference between a suggestion that somebody is guilty of an offence where they have been acquitted and a suggestion on the other hand that they might have committed that offence.

It is entirely likely that an employer will reject a job application if details of an allegation are contained in an enhanced criminal record certificate. This is the case whether they were found innocent by a jury or not.  When receiving negative information on a criminal record certificate, it is open to employers to decide whether, in the circumstances, the candidate is suitable for the role or not.

If you have any questions in relation to recruitment or criminal record checks please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 55600 or 01524 548494.

Email Alerts

Baines Wilson LLP send our clients and contacts legal updates by way of short email alerts. If you would like to receive our regular alerts, please follow the link below.

Sign up for Alerts

Awards & Accreditations

  • Lexcel
  • Legal 500 Top Tier 2015
  • Chambers UK
  • Supply Chain