EWCA Civ 490.
A reporting restriction applies so that no one shall publish or reveal the name or address of the appellant - referred to as AR - or publish or reveal any information which would be likely to lead to the identification of the appellant or of any member of his family.
This appeal concerned the legality under the Human Rights Act 1998 of an Enhanced Criminal Record Certificate (“ECRC”) issued in respect of the appellant (“AR”) under the Police Act 1997 section 113B. An ordinary Criminal Records Certificate is limited to the facts of convictions or cautions or their absence. By contrast, an ECRC includes information on the basis simply of the Chief Officer’s opinion as to its relevance, and whether it “ought to be included in the certificate.”
The legislation database:
Part V of the Police Act 1997 deals with Certificates of Criminal Records etc. It has been substantially amended since 1997 and, at the time of writing (July 2018), the Legislation Database does not show the fully amended version. For example, the Serious Organised Crime and Police Act 2005 made amendments - HERE - including the insertion into the 1997 Act of section 113A to 113F.
Section 113B came into force on 1 April 2008 and, 10 years later, the Legislation Database has not been updated !
Facts of AR's case:
In January 2011, AR was acquitted of rape by the Crown Court. He was a married man with children, of previous good character, and a qualified teacher, but was working at the time as a taxi driver. It was alleged that he had raped a woman who was a passenger in a taxi driven by him. His defence was that there had never been sexual contact with the victim. Following his acquittal, he applied for an ECRC in the course of an application for a job as a lecturer. The ECRC was issued with details of the rape charge for which he had been tried and acquitted. AR did not get the job. He objected to the disclosure on the basis that there had been no actual conviction and it failed to give a full account of the evidence given and how the jury came to its conclusion.
The judge and the Court of Appeal dismissed AR’s appeal against the disclosure, holding that it was reasonable, proportionate and no more than necessary to secure the objective of protecting young and vulnerable persons. The Court of Appeal dealt with AR's Article 6.2 claim at paras. 34-61 of its judgment and McCombe LJ said - at para 60 -
"Taken as a whole, it seems to me that the issue of the certificate did not undermine the appellant's acquittal. Nowhere is it said that he was in truth guilty of the offence. The purport of the certificate is to state the fact of the allegation and of the acquittal. It is no doubt implicit that this is an alert to the potential employer of those facts as to a possible risk to the vulnerable. However, that does not, to my mind, undermine the effect of the acquittal. The effect of the acquittal is that the jury was not satisfied, so that they were sure, that the appellant was guilty. The effect of indicating facts from which others may perceive a risk from a particular individual does not contradict the effect of that verdict."
The main issue before the Supreme Court was whether the admitted interference with AR’s rights under article 8 of the European Convention of Human Rights (“ECHR”) due to the disclosure was justified. There was also a question as to the proper role of an appellate court in reviewing the judge’s finding of proportionality under the ECHR.
The Supreme Court unanimously dismissed AR's appeal.
Role of the appellate court:
In the Court of Appeal, AR had based his case on both Article 6.2 (Presumption of innocence) and Article 8. However, the appeal to the Supreme Court was limited to Article 8. The Supreme Court stated that issues of justification and proportionality were for the trial judge to determine. The purpose of an appeal is to enable the reasoning of the lower court to be reviewed and errors corrected, not to provide an opportunity for parties to re-argue the same case. The question in relation to the standard of review is whether the judge erred in principle or was wrong in reaching the conclusion which he did.
In a Postscript to the judgment, the Supreme Court expressed concern. Lord Carnwath said that, although improvements had been made to the scheme in 2012, it appeared that little attention had been given to the conceptual and practical issues arising from the relationship of the procedure to criminal proceedings.
Given that Parliament has clearly authorised the inclusion in ECRCs of “soft” information, including disputed allegations, there may be no logical reason to exclude information about serious allegations of criminal conduct, merely because a prosecution has not been pursued or has failed. In principle, even acquittal by a criminal court following a full trial can be said to imply no more than that the charge has not been proved beyond reasonable doubt. In principle, it leaves open the possibility that the allegation was true, and the risks associated with that.
However, the court expressed concern about how an ECRC is likely to be treated by a potential employer in such a case. There may be other information also available to the employer and so the ECRC may not necessarily lead to failure of an application for employment. On the other hand it may be a “killer blow” for an application for a sensitive post.
The court saw 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. Nor does there appear to be any guidance to employers as to how to handle such issues. Even if the ECRC is expressed in entirely neutral terms, there must be a danger that the employer will infer that the disclosure would not have been made unless the chief officer had formed a view of likely guilt.
These issues required further consideration outside the scope of this appeal. 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. The figures noted above show that the number of ECRCs relating to acquittals represent a very small proportion of the whole. This may suggest that in many cases chief officers find no cause for disclosure of risk in cases following acquittals.
It is not clear how, if at all, the concerns expressed by the Supreme Court will be addressed.
The DBS was formed in 2012 by merging the functions of the Criminal Records Bureau (CRB) and the Independent Safeguarding Authority (ISA) under the Protection of Freedoms Act 2012. DBS started operating on 1 December 2012.
It is a legal requirement in the UK for regulated activity employers to refer safeguarding concerns to the DBS. It is an offence for any person who has been barred by the DBS to work or apply to work with the group (children or adults) from which they are barred. It is also an offence for an employer to knowingly employ a barred person in regulated activity with the group from which they are barred.
On 1st February 2018, the National Audit Office published an investigation report that was highly critical of the DBS. In May 2018 the Public Accounts Committee reported - Modernising the Disclosure and Barring Service - and described the upgrading of the service as a "masterclass in incompetence" - see the report.
DBS - Guidance for Employers