R (AR) v Chief Constable of Greater Manchester Police and another [2018] UKSC 47

R (AR) v Chief Constable of Greater Manchester Police and another [2018] UKSC 47 was an appeal to the Supreme Court concerning the legality under articles 6.2 and 8 of the European Convention on Human Rights of an Enhanced Criminal Record Certificate disclosing criminal allegations for which the appellant had been tried and acquitted. The Supreme Court (Lord Carnwath, with whom Lord Kerr, Lord Reed, Lord Hughes and Lord Lloyd-Jones agreed) dismissed the appeal, holding that the disclosure involved no breach of article 8, and that permission to appeal had been given solely in respect of article 8, not article 6.2.

AR, then aged 33, a qualified teacher working as a taxi driver, had been acquitted of rape on 21 January 2011 at Bolton Crown Court. The allegation had been that he raped a 17-year-old female passenger in his taxi on 4 November 2009. He denied having sexual contact with the complainant. There was no scientific evidence, and both parties gave evidence at trial. Following his acquittal, he applied for an ECRC in connection with a job application as a lecturer. The first ECRC, issued on 22 March 2011, disclosed the charge and acquittal in some detail. AR objected, arguing that the disclosure was prejudicial and prevented him from being fairly considered for employment. His appeal was rejected by Greater Manchester Police’s Information Governance Unit in March 2012. The reviewing officer, Ms Wilson, noted that the CPS had authorised the charge, which indicated they believed there was a realistic prospect of conviction, and that on the balance of probabilities the allegation was more likely to be true than false. She considered that the information was of sufficient quality, was relevant to the post applied for, and ought to be disclosed. A second ECRC issued on 28 March 2012 in connection with an application for a private hire driver’s licence contained the same information. AR again objected, and the disclosure was confirmed in August 2012.

AR issued judicial review proceedings on 21 December 2012. HH Judge Raynor QC, sitting as a Deputy High Court judge, dismissed the claim on 5 September 2013. He held that the disclosure involved no breach of article 6.2, as it did not suggest AR should have been convicted or that he in fact committed the acts complained of. He rejected any complaint of procedural unfairness, finding that the police had anticipated and considered the matters AR later raised. On article 8, the judge accepted that the review had proceeded on the false premise that the CPS decision to charge indicated the allegation was more likely to be true than false, but considered the review carefully considered and fair. He concluded that the Chief Constable was entitled to find the information not lacking in substance and that it might be true. Given the seriousness of the alleged offence, its relevance to the position applied for, and its comparatively recent occurrence, weighed against the potential employment difficulties for AR, he held the disclosure was reasonable, proportionate and no more than necessary to secure the objective of protecting young and vulnerable persons.

In the Court of Appeal, McCombe LJ (with whom Lord Dyson MR and David Richards LJ agreed) dealt at length with article 6.2, concluding that the certificate did not undermine the effect of the acquittal. Although there was some unfortunate language in the reviewing officer’s reasoning, particularly the suggestion that the decision to prosecute indicated the allegations were more likely to be true on the balance of probabilities, a statement that allegations were more likely to be true on the balance of probabilities did not cast doubt on an acquittal in view of the different, and more exacting, standard of proof in criminal proceedings. The purport of the certificate was to state the fact of the allegation and of the acquittal as an alert to the potential employer of those facts as to a possible risk to the vulnerable, which did not contradict the effect of the verdict. On article 8, McCombe LJ dismissed the complaint of procedural unfairness and, following the guidance in R (A) v Chief Constable of Kent, held that the appellate court should only consider the issue of proportionality for itself if it found the judge had made a significant error of principle. He found no such error in the judge’s judgment.

Mr Southey QC for AR submitted that the Court of Appeal had erred in failing to carry out their own assessment of proportionality, and that in any event the treatment of proportionality by the courts below was defective. He argued that the starting point must be the reliability of the allegations, which could only be assessed by detailed analysis of the evidence by reference to the transcript of oral evidence, and that given the potential harm and gravity of the allegations, they should not have been disclosed unless they could be established on the balance of probabilities. The judge had been correct to hold it was not possible to extract from the available material a firm or reliable conclusion that the complainant’s account was more likely to be true than false, but neither he nor the Court of Appeal had understood its significance. Reducing the weight to be given to that side of the balance implied that greater, indeed decisive, weight should have been given to the highly damaging effect of the disclosure on AR and his family. He further submitted that merely informing an employer of the fact of charge and acquittal could not be proportionate, because it would lead them to speculate rather than make an informed decision, and risked giving the impression that the information was more reliable than it really was.

Ms Richards QC for the Chief Constable submitted it was neither necessary nor practicable to conduct a mini-trial of the allegations or of their probability. The decision was one of balance taking into account a range of factors, including the gravity of the alleged conduct and its circumstances, the reliability and relevance of the information, the period elapsed since the events in question, and the impact on the applicant. The majority of these factors weighed in favour of disclosure. The alleged offence was of the most serious nature, the circumstances were directly related to the employment sought, and the alleged offence was recent. The acquittal indicated only that the jury was not satisfied beyond reasonable doubt that AR was guilty of rape. His acquittal and continuing denial, and the potential impact of disclosure, were important but not determinative factors in the balance. She emphasised that the purpose of disclosure was to draw to the attention of the registered body matters which may indicate a potential risk; it was then for the registered body to decide what further inquiries to make and to undertake its own assessment of any potential risk. The disclosure formed only part of a recruitment process. Mr Moffett QC for the Secretary of State supported that position.

Lord Carnwath first addressed the dispute as to the correct role of the appellate court in such cases. There was no disagreement that the trial judge should make his own assessment of proportionality, but give weight to the views of the primary decision-maker. The issue concerned the approach of the Court of Appeal, taking account of the guidance given in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33. In that case Lord Neuberger had explained that if, after reviewing the judge’s judgment and any relevant evidence, the appellate court considered the judge approached the question of proportionality correctly as a matter of law and reached a decision which he was entitled to reach, then the appellate court would not interfere; but if the appellate court considered the judge made a significant error of principle in reaching his conclusion or reached a conclusion he should not have reached, then the appellate court would reconsider the issue for itself if it could properly do so. Lord Clarke in In re B and in Abela v Baadarani [2013] UKSC 44 had said that in cases involving the evaluation of a number of different factors, an appellate court should only interfere with that decision if satisfied that the judge erred in principle or was wrong in reaching the conclusion which he did. Lord Carnwath agreed with Mr Southey that the Court of Appeal had applied too narrow a test by asking simply whether the judge’s reasoning disclosed a significant error of principle. Lord Neuberger had linked that expression to the question of whether the judge had reached a conclusion he should not have reached. The question in relation to the standard of review was whether the judge erred in principle or was wrong in reaching the conclusion which he did. To limit intervention to a significant error of principle was too narrow an approach, at least if taken as implying that the appellate court had to point to a specific principle which had been infringed. The decision might be wrong 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 undermined the cogency of the conclusion. However, for the decision to be wrong under CPR rule 52.11(3), it was not enough that the appellate court might have arrived at a different evaluation. It followed that in the present case it was sufficient for the Court of Appeal to consider whether there was any such error or flaw in the judge’s treatment of proportionality. If there was not, there was no obligation for the Court of Appeal to make its own assessment.

Turning to the disputes relating to article 8, Lord Carnwath addressed first the procedural aspects. The complaint in essence was of lack of consultation, and was rightly rejected for the reasons given by the judge as endorsed by the Court of Appeal. The officers were fully aware from the evidence at trial of the nature of AR’s defence and his personal circumstances, and they were aware and took account of the potential impact on his employment prospects. There was no indication of any further information he would have wished to advance. On the substantive effect of article 8, Lord Carnwath rejected Mr Southey’s principal submission that the interference could not be justified unless the officers or the judge were in a position to form a positive view of likely guilt, which could not be done without a full appraisal of the evidence in the trial. While not questioning the decision in R (RK) v Chief Constable of South Yorkshire Police, in which Coulson J had criticised a failure to make a detailed analysis of the critical evidence at trial, Lord Carnwath could not accept that as a matter of domestic law or under article 8 it was necessary or appropriate for those responsible for an ECRC to conduct a detailed analysis of the evidence at the trial. That was the task of the judge and jury, who had the advantage of seeing and hearing the witnesses. It was not the proper function of an officer to attempt to replicate the role of the court or to conduct a mini-trial. His task under section 113B was to identify and disclose relevant information, not to make a separate assessment of the evidence at trial. To the extent that Ms Wilson saw it as part of her task to assess whether, in the light of the evidence at trial, the allegation was more likely to be true than false, she was in error.

The judge, however, did not make the same error. He went no further than to accept, as he was entitled to do, the Chief Constable’s view that the information was not lacking substance and that the allegations might be true. That in itself did not mean that disclosure was disproportionate. It was a matter for him to assess whether the information, albeit in the limited form contained in the ECRC, was of sufficient weight in the article 8 balance. The information about the charge and acquittal was in no way secret. It was a matter of public record, and might have come to a potential employer’s knowledge from other sources. If so, a reasonable employer would have been expected to want to ask further questions and make further inquiries before proceeding with an offer of employment. Its potential significance was underlined by the seriousness of the alleged offence, its relevance to the position applied for, and its comparatively recent occurrence. These were matters envisaged by Lord Neuberger in R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3 as potentially justifying disclosure. On the other side, the judge took full account of the possible employment difficulties for AR, but regarded those as no more than necessary to meet the pressing social need for which the ECRC process was enacted. Mr Southey had failed to identify any error in the judge’s reasoning. Accordingly, in agreement with the Court of Appeal, Lord Carnwath would dismiss the appeal.

In a postscript, Lord Carnwath expressed more general concerns about the ECRC procedure in similar circumstances. Although the case preceded the improvements made in 2012 following the Mason review, little attention appeared to have been given to the conceptual and practical issues arising from the relationship of the procedure to criminal proceedings. He was concerned at the lack of information about how an ECRC was likely to be treated by a potential employer in such a case. Lord Neuberger had assumed in L’s case that an adverse ECRC would be a killer blow for an application for a sensitive post, and that view had been adopted by the Strasbourg court in MM v United Kingdom, but it was not clear with respect that it was based on any objective information or empirical evidence of what happened in practice. Even if the ECRC was expressed in entirely neutral terms, there must be a danger that the employer would 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 the appeal. Careful thought needed to be given to the value in practice of disclosing allegations which had been tested in court and had led to acquittal.

In short, the Supreme Court dismissed the appeal, holding that the disclosure of information about a criminal charge and acquittal in an ECRC involved no breach of article 8, and that the appellate court was entitled to find no error in the judge’s assessment of proportionality, though Lord Carnwath added a postscript calling for further consideration of the value of disclosing allegations tested and rejected at trial.

R (on the application of L) v Commissioner of Police of the Metropolis [2009] UKSC 3
R (on the application of Adams) v Secretary of State for Justice [2011] UKSC 18
R (A) v Chief Constable of Kent [2013] EWCA Civ 1706
R (on the application of X) v Chief Constable of West Midlands and Police and Another [2004] EWCA Civ 1068
R (S) v Chief Constabl e of West Mercia Constabulary [2008] EWHC 2811
R (LG) v Independent Monitor [2017] EWHC 3327
R (BW) v Independent Monitor [2015] EWHC 4095
Huang v Secretary of State for the Home Departmen t [2007] 2 AC 167
R (SB) v. Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100, [2006] 2 All ER 487, [2006] 2 WLR 719
Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591
McGraddie v McGraddie [2013] 1 WLR 2477, [2013] UKSC 58
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Piglowska v Piglowski [1999] 1 WLR 1360
Abela v Baadarani [2013] UKSC 44; [2013] 1 WLR 2043
R (C) v Secretary of State for Work and Pensi ons [2016] EWCA Civ 47; [2016] PTSR 1344
Re B (a Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911
R (on the application of RK) v Chief Constable of South Yorkshire Police and Another [2013] EWHC 1555 (Admin)
R (on the application of AR) v The Chief Constable of Greater Manchester and Another [2016] EWCA Civ 490

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