The Supreme Court dismisses challenge to content of Enhanced Criminal Record Certificate

Employment & HR Article

07 September, 2018

On 30 July, the Supreme Court handed down it's judgment in relation to R v Chief Constable of Greater Manchester Police.

R, a teacher, issued proceedings in December 2012 challenging the lawfulness of the inclusion of a past allegation and acquittal in an Enhanced Criminal Record Certificate (ECRC).

In November 2009 he was accused of the rape of a 17 year-old female, and was subsequently acquitted by a jury in January 2011. Following the acquittal, in 2011 and 2012, details of the allegation and acquittal were included in two ECRCs relating to the appellant's prospective employment as a teacher and a taxi driver.

The information contained in the ECRC was based on information given by The Chief Constable of Greater Manchester Police ("GMP") to the Department of Home Affairs who provided the ECRC.

R issued proceedings in December 2012 challenging the lawfulness of the inclusion of details relating to the allegation and the acquittal on the basis that it infringed his rights under Article 6.2 (the presumption of innocence) and Article 8 (the right to respect for a private life) of the European Convention on Human Rights ("ECHR").

In the subsequent Judicial Review, the judge held that Article 6.2 did not apply as the disclosure did not contain any suggestion that the appellant was, or should have been, convicted of the offence. The court held that although the appellant's Article 8 right was infringed, the appeal would be dismissed as such interference was reasonable, proportionate and no more than necessary in order to secure the objective of protecting young and vulnerable persons.

Following this decision, R referred the matter to the Court of Appeal. In relation to Article 6.2, the Court of Appeal stressed that it was not open to the state to undermine the effect of the acquittal. However, it concluded that the inclusion in the ECRC of information pertaining to the allegation and acquittal did not undermine it. The inclusion did not imply that the appellant was guilty, but was an explicit alert to potential employers about the possible risk to vulnerable persons. The Court concurred with the previous judgment in relation to the issue of Article 8 ECHR.

The matter was then referred to the Supreme Court. The issue for consideration was whether the admitted interference with the appellant's Article 8 Convention right was justified.

The Supreme Court had to consider whether disclosure of an acquittal is disproportionate where full details of the evidence at trial are not obtained and the allegations are not established on the balance of probabilities; and whether disclosure of an acquittal in an ECRC is in accordance with law when no independent review of the information occurs prior to disclosure. The Supreme Court unanimously dismissed the appeal and upheld the reasoning of the Court of Appeal. The court held that the requirement to protect potential young and vulnerable victims outweighed the potential prejudicial effect of such disclosure on the appellant.

The implications of this decision are far reaching as employers recruiting employees to work with children, young adults, or vulnerable people requiring ECRCs as part of the recruitment process will potentially be faced with considering past criminal charges, irrespective of whether the charges were upheld or the outcome of any trial. Jonathan Holden, Head of the Employment and HR Team at Forbes Solicitors, explains that "Employers are now faced with the challenge of considering what weight can be given to such information as part of the recruitment process. It could be argued that finding has merely shifted the problem from the provision of the information in a ECRC to the recruitment process itself. The full impact of this remains to be seen."

If you are looking for more information in relation to ECRCs, the recruitment process, or any of our services, please view our Employment & HR section. You can also contact our Employment and HR team by telephone on 0333 207 1135. Alternatively, send your enquiry to us through our online contact form.

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