R v Chief Constable of Greater Manchester Police and another

An acquittal does not bar disclosure of the underlying allegation in an enhanced criminal record certificate. The chief officer’s task under section 113B of the Police Act 1997 is to identify relevant information and decide whether it ought to be disclosed. The officer should not conduct a mini-trial or determine whether the allegation was probably true.

Disclosure must strike a proportionate balance between protecting vulnerable people and the applicant’s article 8 rights. Relevant considerations include the allegation’s gravity, reliability, relevance and age, the opportunity to answer it, and disclosure’s likely impact.

An appellate court reviews a judge’s proportionality assessment. It may intervene for an error of principle, a material flaw in reasoning or a conclusion which was wrong, but not merely because it would have struck the balance differently.

After a jury acquitted AR of rape, the police disclosed the charge and acquittal in enhanced criminal record certificates issued for applications to work as a lecturer and as a private-hire driver. AR challenged the disclosure under article 8 of the Convention, contending principally that the allegation had insufficient reliability and that disclosure seriously impaired his employment prospects.

A Deputy High Court judge dismissed the judicial review claim in [2013] EWHC 2721 (Admin). The Court of Appeal dismissed AR’s appeal in [2016] EWCA Civ 490, holding that the disclosure was proportionate and that an appellate court should reconsider proportionality only after identifying a significant error of principle.

The issues before the Supreme Court were whether the disclosure was proportionate, whether procedural fairness required further consultation, and what standard an appellate court should apply when reviewing a first-instance proportionality assessment.

1. The appeal was dismissed unanimously. The disclosure interfered with AR’s private life, but the interference was justified under article 8.2. The first-instance judge had made no material error in concluding that disclosure was proportionate.

2. An appellate court must review, rather than remake, a first-instance proportionality assessment. The Court of Appeal had stated the threshold too narrowly by asking only whether there was a significant error of principle. Applying In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 and Abela v Baadarani [2013] UKSC 44, intervention is justified where the judge erred in principle or was wrong. A decision may be wrong because of an identifiable gap in logic, inconsistency or failure to consider a material factor. A different permissible evaluation by the appellate court is insufficient.

3. Under section 113B of the Police Act 1997, a chief officer must identify relevant information and decide whether it ought to be included in the certificate. Following an acquittal, the officer should not conduct a detailed re-examination of the trial evidence or determine whether guilt is more likely than not. That would improperly replicate the function of the judge and jury. The contrary approach suggested in R (RK) v Chief Constable of South Yorkshire Police [2013] EWHC 1555 (Admin) was disapproved.

4. An acquittal does not automatically prevent disclosure. Information about the circumstances of an acquittal, including statements made by the criminal court, may materially affect the assessment. An express indication of mistaken identity, for example, should be treated as positive evidence of innocence. In the absence of such information, the officer should not attempt to fill the evidential gap.

5. The applicable article 8 balance, following R (L) v Comr of Police of the Metropolis [2009] UKSC 3, weighs the protection of vulnerable people against the applicant’s privacy and employment interests. The seriousness, relevance and recency of the allegation supported disclosure. The allegation was not lacking in substance and might have been true. The judge had also considered the acquittal and the substantial possible harm to AR’s employment prospects.

6. The procedural complaint also failed. The officers knew the nature of AR’s defence, his personal circumstances and the potential employment consequences. He identified no additional information which he would have provided through further consultation.

7. By way of obiter postscript, the court expressed concern about the absence of evidence showing how employers use disclosures following acquittal. Further consideration should be given to their practical value, the risk of unfair stigmatisation and the possibility that an employer may wrongly infer that disclosure reflects a police assessment of probable guilt.

1. United Kingdom Supreme Court: The court unanimously dismissed the appeal and upheld the conclusion that the disclosure was proportionate: [2018] UKSC 47 .
2. Court of Appeal: The court dismissed the appeal from the High Court, finding no breach of article 8 and no significant error of principle in the proportionality assessment: [2016] EWCA Civ 490 .
3. High Court, Administrative Court: HH Judge Raynor QC, sitting as a Deputy High Court judge, dismissed the judicial review claim: [2013] EWHC 2721 (Admin) .