R (on the application of AR) (Appellant) v Chief Constable of Greater Manchester Police and another (Respondents)
|Cite as:|| UKSC 47|
|Hand-down Date:||July 30, 2018|
THE COURT ORDERED that no one shall publish or reveal the name or address of the appellant who is the subject of these proceedings or publish or reveal any information which would be likely to lead to the identification of the appellant or of any member of his family in connection with these proceedings.
Trinity Term  UKSC 47 On appeals from:  EWCA Civ 490
R (on the application of AR) (Appellant) v Chief Constable of Greater Manchester Police and another (Respondents) before
Lord Kerr Lord Reed Lord Carnwath Lord Hughes Lord Lloyd-Jones JUDGMENT GIVEN ON 30 July 2018 Heard on 21 November 2017 and 23 April 2018 Appellant Respondent (1) Hugh Southey QC
Jenni Richards QC Catherine Dobson (Instructed by Greater Manchester Police Legal Department) Anita Davies
(Instructed by Stephensons Solicitors LLP)
Jonathan Moffett QC Christopher Knight (Instructed by The Government Legal
(1) Chief Constable of Greater Manchester Police
(2) Secretary of State for the Home Department
LORD CARNWATH: (with whom Lord Kerr, Lord Reed, Lord Hughes and Lord Lloyd-Jones agree)
This appeal concerns the legality under the Human Rights Act 1998 and the European Convention on Human Rights and Fundamental Freedoms ("Human Rights Convention" or the "Convention") of an Enhanced Criminal Record Certificate ("ECRC") issued in respect of the appellant ("AR") under section 113B of the Police Act 1997. The certificate gave details of a criminal charge for which he had been tried and acquitted. The Court of Appeal held that the information contained in the certificate involved no breach of his rights under either article 6.2 (presumption of innocence) or article 8 (right to respect for private and family life). Permission to appeal was given solely in respect of article 8. The main issue in short is whether the admitted interference with his private life involved in the disclosure was justified, having regard in particular to what is said to be the limited utility to its recipients of the information so disclosed. The appeal also raises questions as to the proper role of the appellate courts in reviewing the judge's finding of proportionality under the Convention.
Part V of the Police Act 1997 provides a legislative framework for the disclosure of criminal records, for example where required in connection with applications for employment or licences. It has been subject to a number of amendments since then. The following references are to the Act as it was in the period material to the certificates issued in this case, that is, between March 2011 and August 2012.
Significant amendments made to the scheme under the Protection of Freedoms Act 2012 ("the 2012 Act") came into effect in September 2012. These followed a report by Sunita Mason, the Independent Advisor for Criminality Information Management: A Common Sense Approach - A review of the criminal records regime in England and Wales ("the Mason review"). In her Preface she spoke of -
"... a degree of dissatisfaction with a system that has evolved with the laudable aim of protecting vulnerable people but is now viewed by some as intrusive and an unnecessary bar to
employment. There is also concern that some people may be treated as 'guilty until proven innocent'."
She recommended "a number of common sense actions to rebalance the system". Although not directly applicable to the case before us, the changes throw some light on the perceived weaknesses of the system at the time, and will need to be taken into account in considering references to our judgment in the future. Also in September 2012 (again in line with the Mason recommendations) there came into force provisions enabling a person dissatisfied with the content of an ECRC to apply for its review by the Independent Monitor established under the Police Act 1997 (sections 117A, 119B). A further important change occurred on 1 December 2012 when the functions of the Secretary of State, formerly carried out by the Criminal Records Bureau, were transferred to the Disclosure and Barring Service ("DBS") by an order made under section 88 of the 2012 Act.
The 1997 Act as amended provides for three forms of certificate, only the third of which is in issue in the appeal. Section 112 provides for the issue of "criminal conviction certificates" ("CCCs"), giving prescribed details of every conviction held in central records, not including "spent convictions" (section 112(3)); or stating that there is no such conviction (section 112(2)). CCCs are available to any applicant over 16 on payment of a fee. Section 113A provides for the issue on a more restricted basis of "criminal record certificates" ("CRCs") which differ from CRCs in particular in that they include details of spent convictions and cautions (section 113A(6)). Under section 113A(2) an application for a CRC must be countersigned by a "registered person" with a statement by the registered person that the CRC is required for the purposes of an "exempted question". By section 113A(6) "exempted questions" are ones in respect of which certain provisions of the Rehabilitation of Offenders Act 1974 are disapplied. Typically, they include questions to assess the suitability for admission to certain professions, or for certain offices or employments; or to hold certain licences or permits, or to work with children or vulnerable adults. A "registered person" is a person listed in the register maintained by the Secretary of State under section 120(1) as likely to ask such questions, such as employers or prospective employers, or bodies responsible for appointment to certain voluntary roles, or for granting certain types of licences.
Section 113B, which is in issue in this case, deals with a third category "enhanced criminal record certificates" ("ECRCs"). Like CRCs they are issued again on an application countersigned by a registered person for the purposes of an exempted question, but can contain additional information. The relevant definition is in section 113B(3) and (4):
"(3) An enhanced criminal record certificate is a certificate which -
(a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with subsection (4), or
(b) states that there is no such matter or information.
(4) Before issuing an enhanced criminal record certificate the Secretary of State must request the chief officer of every relevant police force to provide any information which, in the chief officer's opinion -
(a) might be relevant for the purpose described in the statement under subsection (2), and
(b) ought to be included in the certificate."
(In September 2012, following a recommendation of the Mason review, section 4(a) was amended to refer to information which the chief officer "reasonably believes to be relevant": 2012 Act section 82(1)(c).)
Thus, there is an important difference between the contents of CRCs and ECRCs. The information included in a CRC is limited to the facts of convictions or cautions or their absence. By contrast, an ECRC includes information on the basis simply of the chief officer's opinion as to its relevance, and whether it "ought to be included in the certificate".
In the case of an ECRC, it must further be shown that the exempted question is being asked for a particular prescribed purpose. The Police Act 1997 (Criminal Records) Regulations 2002 (SI 2002/233) prescribed the purposes for which an ECRC might be required (regulation 5A). They included a range of matters, starting with various categories of work with children (defined in regulation 5C) and with adults (regulation 5B), and extending to such matters as obtaining licences under the Gambling Act 2005 or the National Lottery etc Act 1993, and assessing suitability for employment related to national security, and suitability to obtain a taxi driver licence (regulation 5A(c)-(zf)).
The present case - the facts
On 21 January 2011 the appellant ("AR"), then aged nearly 33, was acquitted of rape by the Crown Court sitting at Bolton. He was a married man with children, of previous good character, and a qualified teacher, but was working at the time as a taxi driver. It had been alleged that, shortly after 1.00 am on 4 November 2009, he had raped a 17-year-old woman, who was a passenger in a taxi driven by him. His defence was that there had never been sexual contact with the alleged victim. Both he and the complainant gave evidence and were cross-examined at the trial. There was no scientific evidence to support or undermine the allegation.
Following his acquittal, he applied for an ECRC in connection with an application for a job as a lecturer. On 22 March 2011 an ECRC ("the first ECRC") was issued which, under the heading "other relevant information disclosed at the Chief Police Officer's discretion", contained the following statement about the charge and acquittal:
"On 4/11/09 police were informed of an allegation of rape. A 17 year old female alleged that whilst she had been intoxicated and travelling in a taxi, the driver had conveyed her to a secluded location where he forcibly had sex with her without her consent.
AR was identified as the driver and was arrested. Upon interview he stated that the female had been a passenger in his taxi, but denied having sex with her, claiming that she had made sexual advances towards him which he had rejected. Following consideration by the Crown Prosecution Service, he was charged with rape of female aged 16 years or over, and appeared before Bolton Crown Court on 21/01/11 where he was found not guilty and the case was discharged."
On 20 April 2011 AR submitted an objection to the contents of the certificate, stating:
"There is no conviction. The jury rejected...
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