AR, R (on the application of) v Greater Manchester Police & Anor

Article 6.2 does not create a blanket prohibition on disclosing an allegation underlying an acquittal. The question is whether the later disclosure, considered in its context and language, undermines the acquittal or treats the person as guilty. An enhanced criminal record certificate may state the allegation and acquittal where it is a public-protection measure, has no procedural link with the criminal proceedings, and does not cast doubt on the verdict.

Under Article 8, consultation is required where there is genuine doubt about relevance, reliability, currency or the applicant’s opportunity to respond. Proportionality requires a high-intensity judicial assessment of the competing interests, including the risk to vulnerable people and the disclosure’s effect on the applicant. Appellate reconsideration requires a significant error of principle.

The appellant had been acquitted by a jury of rape. The police nevertheless supplied details of the allegation and acquittal for inclusion in enhanced criminal record certificates relating to proposed employment.

His judicial review claim was dismissed by the Administrative Court, sitting in the High Court, in [2013] EWHC 2721 (Admin). He appealed, alleging breaches of Articles 6.2 and 8 of the Convention. The issues included whether disclosure undermined the presumption of innocence, whether prior consultation was required, and whether disclosure was proportionate.

The appeal was dismissed.

1. Article 6.2. The governing principle, reflected in R (Adams) v Secretary of State for Justice [2012] 1 AC 48 and endorsed in Serious Organised Crime Agency v Gale [2011] 1 WLR 2760, is that the state must not undermine the effect of an acquittal. The principles in Allen v United Kingdom (2013) 36 BHRC 1 require attention to the nature and context of the later proceedings and to the language used.
2. The certificate merely recorded the allegation and the acquittal. It did not state or imply that the appellant was guilty, or that the jury had been wrong. The disclosure was made for public protection and had no procedural link with the criminal trial. The fact that an acquittal may alert a potential employer to a possible risk did not undermine its effect.
3. Article 8 procedure. Under R (L) v Commissioner of Police for the Metropolis [2010] 1 AC 410, consultation is required in cases of doubt, but no universal consultation rule applies. This was not a borderline case. The appellant had already challenged the first certificate and raised the relevant objections. The second certificate concerned the same occupation in which the alleged incident had occurred.
4. Article 8 proportionality. The decision-maker had to balance the pressing social need to protect children and vulnerable adults against the appellant’s private-life rights. Relevant considerations included the gravity and reliability of the material, the opportunity to rebut it, relevance to the post, the time elapsed and the impact on the applicant. The court’s review was high intensity and involved its own assessment, but it was not a merits review. The judge was entitled to give weight to the primary decision-maker’s assessment where relevant Convention interests had been considered.
5. On appeal, proportionality remained an appellate exercise. The appellate court would reconsider the issue for itself only if the judge had made a significant error of principle. Judge Raynor had recognised the flaw in treating the decision to prosecute as evidence of probable truth, but had independently assessed the relevant factors. No significant error of principle was shown.

• Court of Appeal (Civil Division) dismissed the appeal.
• High Court, Administrative Court dismissed the judicial review claim by order dated 5 September 2013: [2013] EWHC 2721 (Admin).