Criminal record check did not breach man’s human rights, rules Supreme Court

30 Jul 2018 By PM Editorial

But judges concerned over lack of guidance on how employers will treat information revealed

A man did not have his human rights infringed upon when a criminal record check revealed to potential employers he had been acquitted of a crime, the Supreme Court ruled this morning.

AR, who cannot be named for legal reasons, argued that his right to respect for private and family life – article 8 of the European Convention on Human Rights – had been breached when an Enhanced Criminal Record Certificate (ECRC) disclosed he had been charged with raping a 17-year-old woman, even though he was acquitted at a trial in January 2011. 

The man had been working as a taxi driver at the time of the alleged event, although he was also a qualified teacher. The judgment noted that he was of “previous good character”. 

ECRCs are required for people applying for certain types of roles, including jobs involving work with children or vulnerable adults, teachers, social workers, carers and for taxi driving licences. ECHRs are not limited to previous convictions and cautions and can include other intelligence if it is felt to be relevant. 

After AR applied to become a lecturer, details of the allegation and acquittal were revealed in an ECRC, which was based on information supplied by the Greater Manchester Police Force. 

AR appealed against the revelation of these details through the police force’s internal procedure, but his appeal was rejected. 

He later applied for a licence to work as a taxi driver, which required a second ECRC application. Again, Greater Manchester Police Force supplied details of the rape charge and acquittal, without telling AR, to be included in the ECRC. 

AR brought judicial review proceedings against the disclosure, but his application was dismissed at High Court level. He appealed to the Court of Appeal but this was also dismissed.

The Supreme Court also unanimously dismissed his appeal. In his judgment, Lord Carnwath stated that the Court of Appeal judge had been correct to consider what the ECRC revelations meant for AR’s employment prospects and regard them as “no more than necessary to meet the pressing social need”. 

However, as a postscript, Carnwath expressed concerns over the guidance given to those providing information for inclusion in ECRCs, particularly regarding how a potential employer was likely to assess the information. He called for further consideration of the process beyond the scope of this case.

“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,” he added. 

Paul Holcroft, Croner associate director, said: “Unfortunately for employers, [the case] poses more questions than it answers about the information to be included in certificate but these are issues beyond an employer’s control. It is still open for employers to decide whether a candidate is suitable for a role based on the information contained in the certificate, and to reject a candidate where appropriate. Employers should use objective criteria which it applies to all candidates where criminal records are concerned.”

AR had also previously argued disclosing the details in the ECRC interfered with his rights under article 6(2) of the European Convention on Human Rights, which provides that those charged with a crime should be presumed innocent until proven guilty. However, he was not allowed to appeal this point to the Supreme Court. 

Mike Pemberton, partner and head of public law & civil liberties at Stephensons, who represented AR, said: "My client is very disappointed at the dismissal of his appeal and findings that disclosure of the information was proportionate. He has continuously struggled to pursue his chosen career since the allegation of rape was made against him and he was found not guilty following trial due to the continued disclosure."

Pemberton added they would now be "considering whether to make an application to the European Court of Human Rights". 

Greater Manchester Police has been contacted for comment. 

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