The Supreme Court in R (AR) v CC Greater Manchester Police [2018] UKSC 47 upheld the inclusion of information in an enhanced criminal record certificate (ECRC) that a person had been acquitted of rape. The judgment shows the importance of chief officers considering with great care the various factors in order to strike a fair balance between the rights of the individual applying for the ECRC as opposed to the wider rights of the community, including vulnerable persons.

Part of the prosecution evidence in the criminal trial was that the claimant, a married man with three children, of previous good character and a qualified teacher, was working as a taxi driver. On 4th November 2009, he was alleged to have raped a seventeen year old young woman who was his passenger. Following the incident, the evidence in the criminal trial was that the woman was tense, agitated and said that the taxi driver kept asking for a blow job. On medical examination the following morning, there was noted to be a small abrasion at the entrance to the vagina, consistent with recent penetration.

On 21st January 2011, the crown court, after hearing the entirety of the criminal action, acquitted the claimant. Nevertheless, on the claimant’s application for a taxi licence, the Chief Constable considered that he ought to include information that the claimant had been acquitted of this rape of a young woman whilst a passenger in his cab.

Before issuing an ECRC, which employers in a number of sectors require of all applicants, the Disclosure and Barring Service must ask the relevant chief officer to provide information which, pursuant to Police Act 1997 s113B(4), the chief officer believes to be relevant and, which in his opinion, ought to be included.

These are two separate stages. Insofar as the enactment refers to information that “ought” to be included, this properly operates as a filter to ensure fairness on Convention and common-law principles.

In the event, the disclosure was proportionate for the following reasons:

- There had been careful consideration of the forensic evidence and judge’s summing up in the criminal trial. The comments in the certificate on the complainant’s inconsistencies and consistency of the claimant were fair. The complainant’s evidence derived some support from the medical evidence and her distress. There was no criticism of the comments regarding the lack of any indication of motive to make a false allegation;

- It was not necessary in this case for the police to obtain a full trial transcript. The summing-up was sufficient in order to reach reliable conclusions as to whether the complainant’s allegations lacked substance and whether it was reasonable to believe that they might be true;

- The wording on the ECRC recognised the fact of the acquittal and noted that nothing could be assumed from the fact of acquittal other than that the jury was not satisfied beyond reasonable doubt of guilt;

- The Chief Constable was entitled to conclude that the complaint was not lacking in substance and that it was reasonable to believe that the information might be true. That was sufficient for disclosure given the other factors, namely the seriousness of the alleged offence, its relevance to the position applied for (ie. a taxi licence) and its recent occurrence;

- Account was taken of the employment difficulties which would result from this information being included. It was justified to conclude that the potential risk to the vulnerable arising from the claimant’s becoming a taxi driver outweighed the detriments caused to him by the disclosure.

Commentary

This particular case was unusual because AR had been acquitted at a criminal trial and also because, as a result, there was detailed information available about both the allegation against him and his defence to it.

Often, chief officers will have to consider disclosing allegations that have not reached the stage of a criminal trial and where there is far less information available about the allegation and its cogency. In such circumstances, the dispute is about the strength of the evidence of the allegation and the extent to which the applicant has had the opportunity to rebut it before the chief officer reaches his decision. Whilst, in the instant case, there were potential deficiencies in the way in which AR was afforded that opportunity, the Supreme Court was not attracted to them because AR had made it clear that he would have had nothing further to add to the accounts he had previously given in relation to an earlier ECRC application.

The Supreme Court noted that there was no previous authority or specific guidance in relation to including information about acquittals. On the one hand, a criminal trial presents far more evidence for a chief officer to consider than they might otherwise have when considering an untested allegation. It might seem odd that a chief officer could decline to include information about an allegation that has been untested but would seek to include that which have been tested and resulted in an acquittal. On the other, a criminal trial has strict rules of evidence and a chief officer may have, as the Supreme Court recognised, other or subsequent information to consider that was not before the jury.

That said, the outcome from the Supreme Court (the reasoning of which is stated in only a few paragraphs) is likely to present no surprise to those practising in police law and/or professional discipline. Whereas police officers may be acquitted of criminal offences, they may still face misconduct proceedings based upon the same facts but on a lower standard of proof. This is because criminal proceedings and regulatory proceedings have different objectives.

The purpose of disciplinary proceedings looks forwards in protecting the public, upholding professional standards and maintaining confidence in the profession, rather than looking backwards to punish for past conduct: Ziderman v General Dental Council [1976] 1 WLR 330, 333B; [1975] UKPC 26 (Diplock LJ): “‘The purpose of disciplinary proceedings against a dentist who has been convicted of a criminal offence by a court of law is not to punish him a second time for the same offence but to protect the public who may come to him as patients and to maintain the high standards and good reputation of an honourable profession.” The same is said in Meadow v General Medical Council [2006] EWCA 1390; [2007] QB 462 at [32] and Council for the Regulation of Healthcare Professionals v General Medical Council and Saluja [2006] EWHC 2784; [2007] 1 WLR 3094 at [83]-[84] and [130].

It seems, at first blush, that it is unfair for individuals acquitted of an allegation then to face restrictions in their personal life arising from the same (unproved) allegation. That this happens, however, is a reflection that the criminal standard operates at a higher level than the balance of probabilities. A jury may be satisfied that, on balance, a person has committed a criminal offence but may not be persuaded of it to the criminal standard of being “sure”.

Regulators and employers, however, must necessarily operate at a lower level. Those who apply for job as a teacher or a carer or a position such as a taxi-driver may present a danger to vulnerable persons with whom they may come into contact by virtue of their role. It is arguably the duty of those tasked with engaging them or permitting them to operate under licence to ensure that they are suitable persons who pose low risk to those with whom they will come into contact and in respect of whom they will have a duty of care.

This does not undermine the presumption of innocence, which is a function of criminal law. A person who is acquitted of a criminal prosecution faces no penalty or automatic prohibition from applying to particular roles. However, depending upon the facts underlying this, they may pose an unacceptable risk to vulnerable persons.

We have seen this principle in action elsewhere. Civil injunctions concerning behaviour orders, football banning orders, and sexual offences prevention orders may all restrict behaviour where there has been no conviction of a criminal offence. Although this may (but not always) involve a decision of a court of competent jurisdiction, such orders are imposed on the basis of risk and the need to protect the public rather than as punishment.

Chief officers must, therefore, consider carefully what information ought to be included in an ECRC. In reality, the inclusion of negative material in an ECRC will likely be fatal to a person’s application for a job or a licence to perform particular functions in the circumstances of a safety-first approach to risk (despite what the Supreme Court said). This involves, therefore, a careful balance between protecting the vulnerable and often effectively foreclosing a person’s opportunity to practice their chosen profession.

Chief officers should be aware that where a decision to provide information for an ECRC is challenged, on a judicial review the High Court will:

- Carry out a high-intensity review of the original decision;

- Make its own assessment of the factors considered by the decision maker, remembering that this is not by way of a merits review and that the judge is not the primary decision-maker;

- Decide whether the decision breaches the applicant’s convention rights and/or common law protections;

- Pay close regard to the balance struck by the decision maker if they have addressed their mind to the relevant considerations, particularly if they are expert in the matter.

If the chief officer has addressed their mind to all the relevant considerations, then their conclusions will carry some weight. If they have not done so or have not done so properly, their views will carry less weight and the court will have to strike the balance for itself.

Twitter @EGoldLdn