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This interesting and timely case decided by the highest court, appears to draw a line under the extent to which a litigant can invoke his/her right to a private life under Article 8 of the European Convention on Human Rights.

In the case of R v Chief Constable of Greater Manchester Police and anor [2018] 1 WLR 4079, the Supreme Court dismissed a work-seeker’s appeal against the inclusion on an enhanced criminal records certificate (ECRC) of the fact that he had been acquitted on a charge of rape. The Court held that a High Court judge had been entitled to find that the ECRC, issued in relation to his applicarion to work as a teacher, did not breach the individual’s right to a private life under Article 8 of the European Convention on Human Rights (ECHR). Indeed, reference to the rape acquittal was reasonable, proportionate and no more than necessary to secure the objective of protecting young and vulnerable persons.

The facts in R v Chief Constable of Greater Manchester Police

R, a qualified teacher, was charged with the rape of a 17-year-old woman while he was working as a taxi driver in 2009. A jury found him not guilty and he was acquitted. He applied for a number of teaching jobs, which required an ECRC under S.113B of the Police Act 1997. The ECRC issued included details of the allegation against him and the fact that he had been acquitted. R appealed under the police complaints procedure. R lost his appeal on the basis that the alleged incident was recent and of a very serious nature, and that the potential risk to vulnerable people outweighed the effect of disclosure, on R’s human rights. R applied to the High Court for judicial review. He argued, among other things, that his right to privacy under Article 8 ECHR had been breached.

The decision of the High Court

The High Court rejected R’s challenge. It accepted that Article 8 was engaged but found that the interference with R’s private life was proportionate under Article 8(2). The disclosure was ‘no more than was necessary to meet the pressing social need for children and vulnerable adults to be protected’.

The decision of the Supreme Court in  R v Chief Constable of Greater Manchester Police and anor [2018] 1 WLR 4079

The Supreme Court unanimously dismissed the appeal that the inclusion of the information on the ECRC could not be justified unless the officers were in a position to form a positive view of likely guilt, which required them to undertake a detailed analysis of the evidence at the trial. The High Court was entitled to accept the Chief Constable’s view that the information included in the ECRC was ‘not lacking substance’ and that the allegations ‘might be true’. It was relevant that the information about the charge and acquittal was a matter of public record and that it be brought to a potential employer’s attention.

Lord Carnwath, delivering the judgement, did indicate that there was no clear guidance as to what weight should be given to an acquittal in different circumstances, that there existed a lack of information about how an ECRC is to be treated by a potential employer and that an adverse ECRC was likely, as expressed by a police officer in a previous case, to be a ‘killer blow’ for an application to a sensitive post. In Lord Carnwath’s view, ‘careful thought needs to be given to the value in practice of disclosing allegations which have been tested in court and have led to an acquittal’.

Our solicitors’ views on the case of R v Chief Constable of Greater Manchester Police

Caroline Lewis, a specialist employment solicitor at Redmans, commented on the case: “Police forces can now reveal whether individuals have been acquitted of criminal charges when issuing information for enhanced record checks. In principle, in issuing an ECRC, 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 this could have devastating effects for job applicants who have to produce an ECRC”.

The decision of the Supreme Court decision in R v Chief Constable of Greater Manchester Police and anor [2018] UKSC 47 can be found here

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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