R (AR) v Chief Constable of Greater Manchester Police

This case concerns the lawfulness under the Human Rights Act 1998 and the European Convention on Human Rights of an Enhanced Criminal Record Certificate (ECRC) issued under section 113B of the Police Act 1997 which disclosed a criminal charge followed by acquittal. The Court reaffirmed the distinction between ordinary criminal record certificates and ECRCs: ECRCs may include information which a chief officer considers "might be relevant" and "ought to be included". The principal legal questions were whether the disclosure undermined the presumption of innocence under article 6(2) and whether it unjustifiably interfered with article 8 rights.

The Court held that article 6.2 did not preclude disclosure of the fact of charge and acquittal in an ECRC and that, for article 8, the assessment is one of proportionality taking into account factors such as the seriousness, relevance and currency of the allegation, the reliability of the information and the impact on the individual. The Court emphasised that chief officers are not required to conduct a "mini-trial" or re-assess guilt; they must assess whether information is of sufficient substance that it "might be true" and whether it "ought to be included". The Supreme Court found no material error in the judge's proportionality assessment and dismissed the appeal against disclosure.

This was an appeal by AR against decisions of the Chief Constable and the Criminal Records Bureau to include in two Enhanced Criminal Record Certificates details of an allegation of rape and AR's subsequent acquittal. He applied for judicial review of the 2012 disclosure decisions. The underlying facts were that AR had been tried for rape and acquitted in January 2011; he later applied for employment and for a private hire driver licence and ECRCs were issued which described the allegation and noted the acquittal.

Nature of the claim: judicial review of the decision to disclose non-conviction information in ECRCs, alleging breaches of article 6(2) (presumption of innocence) and article 8 (right to respect for private and family life), and procedural unfairness in the decision-making.

Procedural history: the claim was dismissed by HH Judge Raynor QC ([2013] EWHC 2721 (Admin)); the Court of Appeal ([2016] EWCA Civ 490) dismissed the appeal; permission to appeal to the Supreme Court was given only on the article 8 point.

Issues framed:

• whether the ECRC disclosure breached article 6.2;
• whether the decision-making process was procedurally unfair;
• whether the disclosure was a proportionate interference with article 8 rights;
• the proper standard and role of appellate review of proportionality determinations.

Court's reasoning: The Supreme Court held that article 6.2 was not infringed by the ECRC wording in this case. On article 8, the Court reiterated the statutory framework under Part V of the Police Act 1997 and the role of the statutory test in section 113B(3)-(4). The Court emphasised that the chief officer's task is to consider the relevancy and whether information ought to be included, not to retry the case or reach a firm view on guilt. While the reviewing officer in this case had used language suggesting the allegation was "more likely to be true than false", the judge below had not treated that as decisive and had properly balanced the factors: the seriousness of the allegation, its relevance to the posts applied for, its recency, and the public interest in protecting vulnerable people weighed against the impact on AR's private life and employment prospects. The Supreme Court also clarified the appellate role: an appeal court reviews the lower court's proportionality conclusion and intervenes if the decision is wrong for identifiable error (for example a flaw in reasoning, failure to take material into account), rather than simply because it would have decided differently. Applying that standard, the Court found no material error and dismissed the appeal.

Appeal dismissed. The Supreme Court held that disclosure of the charge and acquittal in the ECRC did not breach article 6(2), and that the interference with article 8 was justified: the judge’s proportionality assessment was not wrong. Chief officers need not conduct a ‘mini-trial’ or determine guilt beyond noting whether information "might be true"; their role is to assess relevance and proportionality.

Judicial review dismissed by HH Judge Raynor QC ([2013] EWHC 2721 (Admin)). Appeal to the Court of Appeal dismissed ([2016] EWCA Civ 490). Further appeal to the Supreme Court ([2018] UKSC 47) which dismissed the appeal.