Innocent until … you have to apply for an Enhanced Criminal Record Certificate

Yesterday the Supreme Court gave judgement in the case of R (on the application of AR) V Chief Constable of Greater Manchester Police and another [2018] UKSC 47. The decision concerned the legality of an Enhanced Criminal Record Certificate (ECRC) that disclosed the fact that the appellant – “AR” – had been prosecuted and found not guilty after trial of an offence of rape.

AR applied for judicial review of the Chief Constable’s decision to disclose the information about the acquittal to the Disclosure & Barring Service. The judge at first instance found against AR, as did the Court of Appeal (Civil Division). AR argued that the disclosure of the information was a breach of his human rights under the European Convention on Human Rights in that it violated the presumption of innocence under Article 6 and was a disproportionate interference with his right to a private and family life under Article 8.

What did the Supreme Court need to decide?

The issue for the Supreme Court to decide was ultimately a narrow one that related solely to the Article 8 argument, and was divided into two parts:

1. What is the role of an appellate court when deciding a case where proportionality is in issue and;
2. Was the Court of Appeal correct to find “no material error or flaw” in the judge’s decision at first-instance?

Lord Carnwath gave the judgement of the court which the other four justices agreed with. In relation to the first question the court held that it was not the function of the appeals court in a case where proportionality was in issue to “second guess the first instance judge” and “carry out the balancing exercise afresh as though it were rehearing the case but must adopt a traditional function of review, asking whether the decision of the judge below was wrong”.

The court then went on to hold that “the decision may be wrong, not because of some specific error of principle in the narrow sense, but because of an identifiable flaw in the judge’s reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion” and for the decision to be “wrong” it is not enough that the appellate court “might have arrived at a different evaluation.”

Having decided the first issue in this way, the court went on to decide whether or not the Court of Appeal was correct to find “no material error or flaw” in the judge’s decision at first-instance, and it held that it was correct. The court also found that it was not necessary for the Chief Constable or the first-instance judge to form a view as to the actual guilt of someone applying for an ECRC when that person has been acquitted of an offence by conducting a mini-trial by conducting a “detailed analysis” of the evidence at trial.

Does this give guidance on circumstances an acquittal can be disclosed on an ECRC?

The substantive decision is largely unsurprising and will be of little use to practitioners in this area who hoped that it might give detailed guidance on the circumstances in which an acquittal can be disclosed on an ECRC. Sadly, individuals (admittedly small in number) who find themselves in the deeply unfortunate position of AR, who as a matter of law remains completely innocent of any crime but will still face prejudice because of the mere fact of the allegation, will still have to fight not to have that information disclosed on ECRCs.

The decision does not, however, make it more or less likely that a decision to disclose an acquittal on an ECRC will be deemed to be a lawful one when challenged by way of judicial review. This is because of the wide discretion afforded to the police when deciding upon what information to disclose and the wide array of considerations that must be brought to bear on the decision when its proportionality is being reviewed by a court. These cases will always remain deeply fact-specific therefore practitioners should not shy away from challenging them in court where appropriate.

There is also cause to be cautiously optimistic from the judgement in the form of an unusual “postscript” that suggests that the court remains uneasy about the clear injustice that can be caused by the disclosure of an acquittal on an ECRC. Lord Carnwath expresses concern “at the lack of information about how an ECRC is likely to be treated by a potential employer in such a case”. He goes on to say that they “have been shown reports which emphasise the importance of not excluding the convicted from consideration for employment, but they say nothing about the acquitted, who surely deserve greater protection from unfair stigmatisation (my emphasis) … careful thought needs to be given to the value in practice of disclosing allegations which have been tested in court and have led to acquittal.”

It is hoped that police officers tasked with deciding upon what information should be disclosed on ECRCs take these words to heart, because if they do not the number of cases of this nature coming before the courts is surely set to increase.