Communicated on 19 February 2021
Published on 8 March 2021
FOURTH SECTION
Application no. 6033/19
A.R.
against the United Kingdom
lodged on 21 January 2019
STATEMENT OF FACTS
The applicant, A.R., is a British national, who was born in 1978 and lives in Rochdale. He is represented before the Court by Mr M. Pemberton, a lawyer practising in Wigan.The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.Background facts
The applicant has a teaching qualification but was working as a taxi driver. In March 2010 he was charged with the rape of a seventeen-year-old woman who had been a passenger in his taxi. His defence was that there had never been any sexual contact between him and the alleged victim. There was no forensic evidence linking him to her. On 21 January 2011 the applicant was acquitted of the charge at trial.
(a) The 2011 ECRC
On 22 March 2011, an enhanced criminal records certificate (“ECRC”) was issued to the applicant in connection with his application for a job as a lecturer. An ECRC is issued under section 113B of the Police Act 1997 (“the 1997 Act”) and contains details of previous convictions and cautions as well as other information by the police (”soft intelligence”) and disclosed at their discretion. In the area of the certificate reserved for such other relevant information, the applicant’s ECRC disclosed details of the applicant’s charge for and subsequent acquittal of rape, in the following terms:
“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 conveyed her to a secluded location where he forcibly had sex with her without her consent.
[A.R.] 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 [the] Crown Court on 21/01/11 where he was found not guilty and the case was discharged.”
On 20 April the applicant objected to the disclosure, in the following terms:
“There is no conviction. The jury rejected the complainant’s evidence and the disclosure of the allegation is so prejudicial as to prevent me from being fairly considered for employment. Even if the disclosure of the allegation was possibly appropriate the disclosure fails to provide a full account of the evidence given and how the jury came to its conclusion. It is wrong, unfair and grossly prejudicial [that] I should have to defend myself every time I apply for employment after the jury have ruled I am an innocent man.”
The decision to disclose was upheld. On 2 June 2011 the applicant appealed to the Information Governance Unit (“IGU”) of the relevant police force, pointing out the impact that the disclosure would have on his future career as a qualified teacher. On 6 March the IGU provided a report to the Occupation Checks Unit (“OCU”) of the police force. By memorandum dated 20 March 2012, completed by a civilian reviewing officer employed by the police, the OCU upheld the disclosure. In the memorandum the officer expressed the view that the information disclosed was relevant and that it ought to be included on an ECRC. In answer to a question as to the relevance of the information, she noted that the position of lecturer would give the opportunity for the applicant to befriend vulnerable females of a similar age to the victim, with the risk that he might use his role “to abuse his trust and authority and commit similar offences”.
In answer to the question “Do you believe the information to be of sufficient quality to pass the test”, she wrote:
“I believe the information is of sufficient quality to pass the required test because:There was sufficient evidence for the CPS [Crown Prosecution Service] to authorise the applicant being charged with Rape, indicating that they believed there to be a realistic prospect of conviction. If the CPS had not believed the allegation, they would not have authorised the charge. This indicates that on the balance of probabilities the allegation was more likely to be true than false.Although the applicant was found not guilty by the jury, the test for criminal conviction is beyond all reasonable doubt, which is higher than that required for CRB [Criminal Records Bureau] disclosure purposes. Therefore the applicant’s acquittal does not prove that he was innocent, or even that the jury thought he was innocent, just that he could not be proved guilty beyond all reasonable doubt.In the applicant’s letter to the IGU he states that another male’s DNA was found on the victim’s underwear. Whilst this is true, the expert forensic witness stated that this could have been there for a while, and could have been from the last time the victim stated she had sex, 6 weeks prior, dependent on the number of times the item had been washed since then. The expert was clear that the presence of another male’s sperm DNA on the victim’s underwear did not evidence that she had had sex with someone else on the evening of the incident.The forensic evidence regarding the alleged sexual intercourse between the applicant and the victim was inconclusive, which was to be expected as the victim alleged the applicant had used a condom, thereby making the presence of forensic evidence less likely. Therefore this does not support either the applicant or the victim, but cannot be used to cast doubt of the victim’s account.The medical evidence revealed vaginal injuries consistent with penetration, which were up to three days old. This was consistent with the victim’s account, and although not conclusive evidence, is in her favour.In the applicant’s letter to the IGU he claims that the judge stated there were many inconsistencies in the female’s account. Having read the judge’s summing up, he states that ‘there has been legitimate criticism from the defence about some of the details of the accuracy of [the victim’s] evidence’, however he goes on to indicate that he believes these details are not important. ‘I suggest that the big picture may be what matters’. The inaccuracies in the victim’s evidence are not regarding the actual allegation, but regarding the circumstances leading up to the alleged incident, eg the time she got into the taxi, whose decision it was that she was not staying at her friend’s house, and the precise conversation with the applicant. As the victim was intoxicated at the time (by her own admission and that of the applicant), it is entirely plausible that she may have forgotten some of the less important aspects of the evening, and therefore this does not necessarily cast doubt on her account.Although the victim was also unclear as to the duration of the alleged intercourse, as she states she was in shock, and she was intoxicated, this again does not make her account implausible.The court heard evidence of the victim’s distress after the incident from a number of witnesses, which would seem to support her account.Although the applicant’s account was consistent which is in his favour, the judge rightly states that this does not negate the possibility of him lying as ‘of course a man may lie consistently’.There is no indication of the victim having any motive to make a false allegation, and it seems unlikely that she would wish to go through the emotional trauma of medical and forensic examinations, intimate questions about her sexual activity, and the court case, to make a malicious allegation without a strong motive for doing this.Although the IGU review has raised that the acquittal indicates that the allegation might not be true, the legislation and guidance is clear that allegations that might not be true can be disclosed, as the test required for CRB disclosure purposes is lower than this.Due to the above, I believe that the information is more likely to be true than false and is not lacking in substance, and it is reasonable to believe that the information might be true, and therefore it passes the required test.”
In answer to the question “do you consider the information is both reasonable and proportionate to disclose”, the reviewing officer concluded it was, for the following reasons:
“I believe disclosure is both reasonable and proportionate because:In my opinion, as explained above, the information is clearly relevant and passes the required test.The alleged incident is relatively recent as it occurred in Nov 2009, less than 3 years ago.Although this is an isolated incident, it is very serious as it relates to an alleged rape using force, by a stranger. It is not a minor incident.If the applicant repeats this alleged behaviour in the [position applied for], vulnerable people could be caused serious emotional and physical harm.Although disclosure of this incident will have an impact on the applicant’s human rights as he may fail to gain employment in his chosen profession, this would not prevent the applicant from gaining employment in another profession which does not require an enhanced CRB check, and therefore it would not prevent him from gaining employment to support his family. Disclosure of this allegation will not prevent the applicant from gaining all forms of employment indefinitely.I believe that it is important that the [potential employer/registered body] are made aware of this allegation, in order that they can make an informed recruitment decision and act to safeguard vulnerable people.Due to the above, I believe the potential risk to vulnerable people outweighs the effect of disclosure on the applicant’s human rights in this instance, and therefore the information ought to be disclosed.”
The memorandum ended with a comment that the disclosure text was “accurate, balanced, and not excessive ... There is no intimation of the applicant’s guilt or otherwise in the text”.
(b) The 2012 ECRC
On 28 March 2012 a further ECRC was issued after the applicant applied for a licence to work as a private hire driver. The applicant was not consulted before the ECRC was issued. The ECRC contained the same information as had been included on the ECRC issued in March 2011. The same reviewing officer considered the matter and reached the same conclusion, for exactly the same reasons as were given in respect of the first ECRC. That review material had also been considered by a senior police officer. She considered that disclosure was reasonable and proportionate for the following reasons:
“The disclosure is in relation to allegations that on 04/11/09 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. [A.R.] was identified as the driver and was arrested. Following consideration by the Crown Prosecution, he was charged with Rape of Female Aged 16 Years or Over, I consider that this is relevant to the post applied for as the applicant may present a risk of harm to the children/vulnerable adults with whom they may come into contact whilst again working as a private hire driver.
In considering whether the information ought to be disclosed, I have taken into account the gravity of the material involved, the reliability of the information on which it is based, the relevance to the post applied for, the period of time elapsed since the events(s) occurred, together with the likely impact on the applicant of disclosing the material. I have also taken into account the details of the matters as reported to the police, together with the considerations of the Crown Prosecution Service ... I consider this is information that is relevant to the post applied for and ought to be disclosed to be considered by the registered body concerned. I believe this disclosure is factually correct, reasonable and proportionate, and that the wording is fair and reflective of the information held by [the police].
Having considered the human rights of all relevant parties and the potential risks as outlined above with which I fully agree I believe the disclosure is necessary and therefore authorise this disclosure as approved information.”
On 22 June 2012 the applicant objected to the disclosure in similar terms to his earlier letter. He complained that it would “affect the rest of my life and future as nobody will employ me to teach with this disclosed on my [ECRC]”. The disclosure was confirmed by the CRB on 7 August 2012.Domestic proceedings
(a) The High Court
In December 2012 the applicant applied for permission to seek judicial review of the police decision to disclose the information, invoking his rights under Articles 6 § 2 and 8 of the Convention and relying in particular on Allen v. the United Kingdom [GC], no. 25424/09, ECHR 2013, and M.M. v. the United Kingdom, no. 24029/07, 13 November 2012, respectively. He was granted permission but, on 5 September 2013, the High Court rejected his claim. The judge considered that Article 8 was clearly engaged in the case but found that the disclosure was reasonable, proportionate and no more than necessary to secure the objective of protecting young and vulnerable persons. His reasons were as follows:
40. ... a) Although the review proceeded on a false premise (namely that the decision to charge indicated that on the balance of probabilities the allegation was more likely to be true than false) it is clear on my reading of the transcript of the forensic evidence and summing up that the same were carefully considered in the review, and in my judgment the comments on the forensic and medical evidence, the complainant’s inconsistencies and the consistency of the claimant were fair. The complainant’s evidence derived some support from the medical evidence and her distress, and no criticism has been made of the comments regarding the lack of any indication of motive to make a false allegation and willingness to suffer emotional trauma.
...
b) It does not seem to me in this case that the police, as part of their decision making process, were reasonably required to obtain a full trial transcript in order to reach reliable conclusions as to whether the complainant’s allegations lacked substance and whether it was reasonable to believe that they might be true. For that purpose I consider that it was sufficient that they had a transcript of the summing up and note that there is no rationality challenge to these conclusions.
c) The fact of acquittal was recognised, and in my view it was right to comment that nothing could be assumed from the fact of acquittal other than that the jury was not satisfied beyond reasonable doubt of guilt.
d) Whilst I do not consider that a firm or reliable conclusion as to whether the complainant’s account is more likely to be true than false can be gathered from the transcript alone, I am quite satisfied that the Chief Constable was fully entitled to conclude that it was ‘not lacking in substance, and that it [was] reasonable to believe that the information might be true’. In my judgment that is a sufficient basis for disclosure (subject to the issue of proportionality), given the other factors reasonably relied upon by the Chief Constable as justifying disclosure as stated in the review, such as the seriousness of the alleged offence, its relevance to the position applied for and its comparatively recent occurrence.
e) I do not accept that the March 2012 disclosure decision is invalidated or rendered unlawful by any failure of procedure, or that the claimant has in the event suffered any injustice as a result of the failure to consult before making that decision. When making that decision, account was taken of his previous complaints regarding the March 2011 disclosure, there had been no legal challenge to that disclosure and the Chief Constable in my view was entitled to proceed upon the basis that the claimant’s complaints were as previously stated. In the event it is plain that the police in the March 2012 review anticipated and considered the matters that the claimant later raised in his letter of 22 June 2012 and ... no suggestion has been made in these proceedings of any further substantive matters that the claimant would have wished to raise.
f) Account was taken of the claimant’s employment difficulties resulting from the ECRC, [the senior police officer] having taken into account the likely impact on the claimant of disclosing the material. In my judgment, the Chief Constable was justified in concluding that the potential risk to the vulnerable if the claimant obtained a private hire driver’s licence and had acted as alleged by the complainant outweighed the detriments that would be caused to him by the disclosure and the interference with his article 8 rights and that disclosure were both justified and proportionate. I am satisfied that the disclosure in the March 2012 ECRC Certificate was no more than was necessary to meet the pressing social need for children and vulnerable adults to be protected and that the balance between that need and respect for the claimant’s article 8 rights was struck in the right place.”
The judge found it unnecessary to determine whether Article 6 § 2 was applicable to the issuing of an ECRC since in any event the disclosure did not breach the presumption of innocence, for the following reasons:
“55. a) as stated in paragraph 94 of Allen, the aim of Article 6.2 (after acquittal) is to protect the individual who is acquitted from being treated in subsequent proceedings or by public officials as if in fact guilty of the offence charged. Contrary to [counsel for the applicant’s] submission that the disclosure here ‘implies that [the applicant] is guilty of a serious sexual offence’, in my view it does no such thing. In no way does it suggest that he should have been convicted, nor does it suggest that he in fact committed the acts complained of. What may fairly be implied is the suggestion that, notwithstanding the acquittal, he may in fact have committed the acts complained of; that does not, however, impugn the correctness of the acquittal, and I accept ... that there is a valid distinction between a statement casting doubt on the correctness of an acquittal and a statement that suggests that, notwithstanding the acquittal, the claimant might have committed the acts alleged.
b) In my judgment, it is no breach of article 6(2) to imply, in a statement made lawfully under Section 113B(4) of the Police Act 1997, that, notwithstanding the acquittal, the claimant might in fact have committed the act complained of in a criminal charge. For such disclosure to be lawful, it must be justified under Article 8, as I have found this disclosure to be, and in my view that renders the disclosure lawful under the ECHR.”
(b) The Court of Appeal
The applicant was granted permission to appeal but his appeal was dismissed on 10 June 2016. In respect of his argument under Article 6 § 2, the court observed that the statement for onward transmission on the ECRC was extremely limited: there was no aspersion cast at all upon the correctness of the acquittal and it was not suggested in the certificate that the applicant was guilty of the offence of which he had been acquitted. The court further noted that the issue in the case was whether to disclose the information as a measure of public protection; there was no procedural link at all to the previous criminal proceedings themselves. There was no suggestion that the jury had been wrong to acquit on the evidence and on the standard of proof which they had to apply. The court therefore considered that there was no “undermining” of the acquittal. The judge delivering the judgment of the court continued:
“58. There was, in the terminology of the ECtHR (paragraph 126 [of the Allen judgment]), clearly ‘some unfortunate language’ in the reasoning behind the reviewing officer’s conclusion that the information should be included in the certificate. I have in mind here in particular the suggestion that the decision to prosecute indicated that on a balance of probabilities the allegations were more likely to be true than false and the statement of the officer’s own conclusion at the end that the ‘information might be true’. Nonetheless, a statement that the allegations were more likely to be true on the balance of probabilities does not cast doubt on an acquittal in view of the different, and more exacting, standard of proof in criminal proceedings. Further, that was not the only consideration brought to bear in the decision. I also bear in mind here, by way of comparison with the statements made in this case, the language in the judgments in our courts which were criticised by the claimant in the Allen case and were considered by the Grand Chamber: see again paragraph 110, quoted above. However, as I see it, up to the present the ECtHR has only applied Article 6.2, in a ‘post criminal proceedings’ context to the public statements of state organs and not to documents, such as the reviewing officer’s reasons in this case, which are not in the general public domain.”
The judge further observed that this Court had never found a violation of Article 6 § 2 in the circumstances arising in the present case, and considered that the domestic court should not go beyond the limits of the previous cases decided by this Court. The judge concluded:
“60. Taken as a whole, it seems to me that the issue of the certificate did not undermine the appellant’s acquittal. Nowhere is it said that he was in truth guilty of the offence. The purport of the certificate is to state the fact of the allegation and of the acquittal. It is no doubt implicit that this is an alert to the potential employer of those facts as to a possible risk to the vulnerable. However, that does not, to my mind, undermine the effect of the acquittal. The effect of the acquittal is that the jury was not satisfied, so that they were sure, that the appellant was guilty. The effect of indicating facts from which others may perceive a risk from a particular individual does not contradict the effect of that verdict.”
As to Article 8, the judge found no breach of the right to respect for private life. He summarised the justification for the disclosure advanced by the police as follows:
“33. [Counsel for the police] argued that the allegations were recent, very serious and had been thought by the police to be reliable; these points had to be balanced by them with the fact of the jury acquittal. In carrying out the proportionality exercise, therefore, the police had to take into account that they were acting under a statute designed for the protection of the vulnerable; an evaluative judgment was required; it was highly relevant that the information related to an allegation made against the appellant as a taxi driver and he was seeking to take up that very same employment; risk to the vulnerable was acute; in deciding upon disclosure no single factor could dominate; it was not incumbent on the police to conduct a ‘mini-trial’ or to decide for themselves the question of whether the acts had been committed or not – that was not feasible; the acquittal was but one factor in the necessary evaluation.”
Explaining the role of the courts in cases concerning an Article 8 challenge to the proportionality of a decision of the primary decision-maker, the judge said:
“74. .... The judge at first instance must carry out a ‘high intensity’ review of the original decision and must make his or her own assessment of the factors considered by the decision-maker, but this is not by way of a ‘merits review’; the judge is not the primary decision-maker. The role includes deciding whether the decision under challenge breaches the Convention rights of the applicant, and specifically whether the decision reaches a proportionate result in compliance with the relevant provisions of the Convention. The court will pay close regard to the balance struck by the decision-maker, if he has addressed his mind to the considerations which are relevant to striking the balance between the competing rights, particularly if he or she has an expertise in the matter. However, in the end, the decision is for the court, rather than a review in the ordinary sense. When the judge’s decision is challenged on appeal, the appellate court will only consider the issue of proportionality for itself if it finds that the judge has made ‘a significant error of principle’.
75. I do not find that [the first-instance judge] made any error of principle in his judgment in this case, let alone any significant error. He had sufficient of the relevant authorities well in mind ... He proceeded to consider for himself the various factors material to the proportionality of the decision to disclose the information, recognising as he did the flaw in the reviewing officer’s reasoning in placing some significant weight on the initial decision to prosecute. The judge recognised that a balance had to be struck between the potential risk to the vulnerable if the appellant obtained the post for which he was applying and the interference with his rights under Article 8 caused by the detriment that he would suffer by the disclosure. The judge saw that the balance was a difficult one to strike and correctly directed himself to the material considerations.
76. The points made by [counsel for the police], which I have summarised in paragraph 33 above, were to my mind valid elements of the decision which the [police] had to take, but I must not be drawn into re-making that decision. However, it seems to me that those points were in essence the same as the ones that persuaded [the first-instance judge] that the [police’s] decision was proportionate on the facts of this case. I can see no significant error of principle in that and can see no reason to disagree with the assessment of proportionality that he made.”
(c) The Supreme Court
The applicant applied to the Supreme Court for permission to appeal, reiterating his arguments under Articles 6 § 2 and 8 of the Convention. On 2 November 2016 permission was granted in respect of the Article 8 complaint only.
On 30 July 2018 the Supreme Court dismissed the appeal. Lord Carnwath, giving the judgment of the court, addressed first the correct approach of appellate courts in cases concerned with proportionality. He agreed with counsel for the applicant that the Court of Appeal had taken too narrow an approach when limiting itself to assessing whether the first‑instance judge had made a “significant error of principle”. He explained that the decision of a court below might be wrong not because of some specific error of principle in that narrow sense but because of an identifiable flaw in the judge’s reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermined the cogency of the conclusion. However, Lord Carnwath underlined that for a decision to be wrong, it was not enough that the appellate court might have arrived at a different evaluation. He concluded:
“65. It follows that in the present case it was sufficient for the Court of Appeal to consider whether there was any such error or flaw in the judge’s treatment of proportionality. If there was not, there was no obligation ... for the Court of Appeal to make its own assessment.”
Lord Carnwath considered the applicant’s submission that the interference involved in the disclosure could not be justified unless the police officers (or the judge) were in a position to form a positive view of likely guilt, and that this could not be done without a full appraisal of the evidence in the trial. He said:
“68. ... I cannot accept that, as a matter of domestic law or under article 8, it is necessary or appropriate for those responsible for an ECRC to conduct a ‘detailed analysis’ of the evidence at the trial ... That is the task of the judge and jury, who have the advantage of seeing and hearing the witnesses. Whether or not it would be compatible with article 6.2 for the chief officer to express a view on the merits of the case following an acquittal, it is not the proper function of an officer to attempt to replicate the role of the court, or ... to conduct a ‘mini-trial’. Nor can that be read into the language of the statute. His task under section 113B is to identify and disclose relevant ‘information’, not to make a separate assessment of the evidence at trial ...”
He referred to examples where additional information might be available which justified treating the trial court’s disposal as less than decisive, or provided a positive indication of innocence. However, in the absence of information of that kind, he said, it was not the job of the police to fill the gap. To the extent that the reviewing officer in the present case had seen it as part of her task to assess whether, in the light of the evidence at trial, the allegation was “more likely to be true than false”, she had therefore been in error. However, Lord Carnwath continued:
“69. The judge did not make the same error. He went no further than to accept, as he was entitled to do, the Chief Constable’s view that the information was ‘not lacking substance’ and that the allegations ‘might be true’. However, that in itself did not mean that disclosure was disproportionate. It was a matter for him to assess whether the information, albeit in the limited form contained in the ECRC, was of sufficient weight in the article 8 balance.
70. It is to be borne in mind that the information about the charge and acquittal was in no way secret. It was a matter of public record, and might have come to a potential employer’s knowledge from other sources. If so, a reasonable employer would have been expected to want to ask further questions and make further inquiries before proceeding with an offer of employment. Its potential significance was as the judge found underlined by ‘the seriousness of the alleged offence, its relevance to the position applied for, and its comparatively recent occurrence’... On the other side, the judge took full account of the possible employment difficulties for A.R., but regarded those as ‘no more than necessary to meet the pressing social need’ for which the ECRC process was enacted ...”
He concluded that the applicant had failed to identify any error in the judge’s reasoning. However, he added the following postscript:
“74. Given that Parliament has clearly authorised the inclusion in ECRCs of ‘soft’ information, including disputed allegations, there may be no logical reason to exclude information about serious allegations of criminal conduct, merely because a prosecution has not been pursued or has failed. In principle, 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 the risks associated with that.
75. However, I am concerned at the lack of information about how an ECRC is likely to be treated by a potential employer in such a case. [Counsel for the police] was at pains to emphasise that the ECRC is only part of the information available, and will be not necessarily lead to failure. On the other hand, Lord Neuberger [in R (L) v. Commissioner of Police of the Metropolis] assumed that an adverse ECRC would be a ‘killer blow’ for an application for a sensitive post ... That view was adopted without question by the Strasbourg court in MM v United Kingdom (2013) (Application No 24029/07), but it is not at all clear with respect that it was based on any objective information or empirical evidence of what happens in practice. We have been shown reports which emphasise the importance of not excluding the convicted from consideration for employment, but they say nothing about the acquitted, who surely deserve greater protection from unfair stigmatisation. Nor does there appear to be any guidance to employers as to how to handle such issues. 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.
76. These issues require further consideration outside the scope of this appeal. Careful thought needs to be given to the value in practice of disclosing allegations which have been tested in court and have led to acquittal. The figures noted above show that the number of ECRCs relating to acquittals represent a very small proportion of the whole. This may suggest that in many cases chief officers find no cause for disclosure of risk in cases following acquittals.”Relevant domestic law and practice
Under section 113B of the 1997 Act a person can make an application for an ECRC, provided that the application is countersigned by a “registered person” (who is the employer, where the certificate is sought in the context of relevant employment).
The relevant domestic law applicable at the time of the disclosure of the applicant’s criminal record information is set out in the Court’s judgment in M.M., cited above, §§ 52-55. In short, an ECRC issued under section 113B contained a record of all previous convictions and other information held by the police and which they considered might be relevant and ought to be included on the ECRC. In September 2012, the test of “might be relevant” was amended to information which the police officer “reasonably believes to be relevant”.
The relationship of the ECRC scheme to Article 8 was considered in R (X) v. Chief Constable of the West Midlands Police [2004] EWCA Civ 1068. There, the applicant had applied for a job as a social worker. He had once been charged with indecent exposure and the proceedings had been discontinued when the alleged victim failed to identify him. The ECRC contained details of the allegations of indecent exposure. The applicant’s challenge was rejected by the Court of Appeal. The judge considered that the 1997 Act imposed on the Chief Constable a duty to disclose “if the information might be relevant, unless there was some good reason for not making such a disclosure”. He inferred that, in the view of Parliament, it was important for the protection of children and vulnerable adults that information be disclosed “even if it only might be true”. He concluded:
“41. ... It follows also, that as long as the Chief Constable was entitled to form the opinion that the information disclosed might be relevant, then absent any untoward circumstance which is not present here, it is difficult to see that there can be any reason why the information that ‘might be relevant’, ought not to be included in the certificate. I accept that it is possible that there could be cases where the information should not be included in the certificate because it is disproportionate to do so; the information might be as to some trifling matter; it may be that the evidence made it so unlikely that the information was correct, that it again would be disproportionate to disclose it ...”
In R (S) v. Chief Constable of West Mercia Constabulary [2008] EWHC 2811 (Admin), considering whether inclusion of information concerning an acquittal on an ECRC would be justified, the judge said:
“70. ... I do not suggest for one minute that allegations should not be disclosed in an ECRC simply because the alleged offender has been acquitted. The circumstances surrounding the acquittal are all important. There will be instances where an alleged offender is acquitted but only because the Magistrates (or Jury) entertain a reasonable doubt about the alleged offender’s guilt. The tribunal of fact may harbour substantial doubts. In such circumstances, however, it might well be perfectly reasonable and rational for a Chief Constable to conclude that the alleged offender might have committed the alleged offence ...”
In R (L) v. Commissioner of Police of the Metropolis [2009] UKSC 3, the claimant had been employed by an agency providing staff for schools. An ECRC had disclosed details about her child, who had been included on the child protection register on the ground of alleged inadequate parental supervision by her. It had also referred to allegations that she had refused to co-operate with social services. The agency had ended her employment. Her judicial review claim was dismissed by the Supreme Court. Accepting that Article 8 was engaged, Lord Hope continued:
“42. So the issue is essentially one of proportionality. On the one hand there is a pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the applicant’s right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place ... Increasing use of this procedure, and the effects of the release of sensitive information of this kind on the applicants’ opportunities for employment or engaging in unpaid work in the community and their ability to establish and develop relations with others, is a cause of very real public concern ....”
He considered that the approach taken in R (X), cited above, had tilted the balance against the applicant too far. He explained:
“44. ... It has encouraged the idea that priority must be given to the social need to protect the vulnerable as against the right to respect for private life of the applicant. ... The words ‘ought to be included’ ... require to be given much greater attention. They must be read and given effect in a way that is compatible with the applicant’s Convention right and that of any third party who may be affected by the disclosure ... But in my opinion there is no need for those words to be read down or for words to be added in that are not there. All that is needed is to give those words their full weight, so that proper consideration is given to the applicant’s right to respect for her private life.”
The correct approach was that neither consideration had precedence over the other: it should not be assumed that the presumption was for disclosure unless there was a good reason for not doing so. As for the case under consideration, he said:
“48. ... there is no doubt that the facts that were narrated were true. It was also information that bore directly on the question whether she was a person who could safely be entrusted with the job of supervising children in a school canteen or in the playground. It was for the employer to decide what to make of this information, but it is not at all surprising that the decision was that her employment should be terminated.”
In a concurring judgment, Lord Neuberger thought it realistic to assume that in the majority of cases an adverse ECRC was likely to represent “a killer blow” to the hopes of a person aspiring to a post within the scope of the section. He observed that disclosable soft intelligence “may frequently extend to allegations of matters which are disputed by the applicant, or even to mere suspicions or hints of matters which are disputed by the applicant” and that, taken on its own, the statutory test of relevance set too low a hurdle to satisfy Article 8. The qualifying requirement to consider whether it “ought to be included” provided “the requisite balancing exercise” necessary to avoid breach of Article 8. Examples of factors which could be relevant were the gravity of the material involved, the reliability of the information on which it is based, whether the applicant had had a chance to rebut the information, the relevance of the material to the particular job application, the period that had elapsed since the relevant events had occurred, and the impact on the applicant of including the material in the ECRC, both in terms of his or her prospects of obtaining the post in question and more generally.
COMPLAINTS
The applicant complains under Article 6 § 2 of the Convention that the impugned disclosure on his ECRC violated his presumption of innocence.
He complains under Article 8 of the Convention that the disclosure of the information was not in accordance with the law as the applicable legal provisions afforded inadequate protection against arbitrariness and there was no guidance as to when the disclosure of an acquittal was proportionate or how such information should be used by a prospective employer or licensing body. He further contends that disclosure was not necessary in a democratic society since it was likely to have a profound impact on his employment prospects, it stigmatised him as an unconvicted person, it was made on the basis of an inadequate evaluation of the allegations and there were insufficient safeguards against abuse.
QUESTIONS TO THE PARTIES
1. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention in respect of his complaint under Article 6 § 2?
2. Did the presumption of innocence guaranteed by Article 6 § 2 of the Convention apply in respect of the disclosure on the ECRC?
3. If so, was the presumption of innocence respected in the present case?
4. Has there been a violation of the applicant’s right to respect for his private life under Article 8 of the Convention (see, in particular, M.M. v. the United Kingdom, no. 24029/07, 13 November 2012)?
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