Human Rights Not Breached in Disclosure of Rape Acquittal

A High Court decision in the case of R (R) v Chief Constable of Greater Manchester Police and another [2016], has been upheld by the Court of Appeal to dismiss a job seeker’s request of omitting information concerning his acquittal of a rape charge in an enhanced criminal records certificate under the Human Rights Act 1998.

R, a qualified teacher, was charged with the rape of a 17-year-old woman while he was working as a taxi driver. He was found not guilty by the jury and he was acquitted. However, his numerous applications for teaching jobs that followed his acquittal required an enhanced criminal record certificate under the Police Act 1997, which gave details of the rape charge and acquittal. A second application submitted by R for another enhanced certificate contained the same information as the first certificate, and Judicial Review was consequently applied for.

The court held that the disclosure did not go against the presumption of innocence under Article 6(2) of the European Convention on Human Rights (ECHR) with regards to the fact that there was no indication of the jury being wrong to acquit or the police’s certainty of the claimant’s guilt. As Article 6 (2) states “everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law,” and the assumption that others may have from the collection of facts available to detect a threat from a specific person will bear no contradiction to the effect of an acquittal.

In addition, there was no evident breach from the disclosure to the right to privacy in Article 8 of the ECHR as it was consistent with the requirement to balance any detriment to the claimant against the need to protect vulnerable members of the public. The further element of  the police not needing to consult the claimant prior to including the information in the certificate also affirms the latter point as it was not deemed to be a “borderline case”, considering that he had earlier dealings with the police concerning the inclusion of the same information in an earlier certificate.

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As we consider the issue of enhanced criminal records certificates which the above case gives prominence to, it could be said that criminal acquittals and “clearing your name” are quite often interlinked in meaning, although the judgment here does not entirely conform to this.

For details of an acquittal to be mentioned in an enhanced criminal records certificate, it is firstly necessary for the police to demonstrate satisfaction that the information is “relevant” and that it “ought to be included”. With consideration to human rights arguments, in order to not go against the presumption of innocence following an acquittal, the police must not indicate that they believe the person is guilty. However, it is not a breach of Article 6(2) to suggest that the person may have committed the offence.

Another factor to consider is that not all cases lend themselves to an acquittal to be mentioned by the police, hence the application of the proportionality test in Article 8. For instance, where the alleged offence has no connection with the employment in question, or where someone else has been prosecuted for the same crime. On the other hand, where there is a borderline case the police are required to consult the individual concerned before deciding whether to include the information.

As a concluding note, it would appear that whilst the existence of the ECHR undoubtedly aims to be in favour of protecting an individual’s privacy, we can see in cases such as this that the issue of proportionality plays a vital role in determining where the balance must be struck between the potential risk to the public and the interference of rights under Article 8, coupled with the detriment suffered by the disclosure.

Forbes Solicitors regularly advise a range of clients on requests for disclosure of information whether under the DPA, FOIA or DBS. If you would like more information please contact Daniel Milnes.

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