R (on the application of AR) v Chief Constable of Greater Manchester Police & Anor [2018] UKSC 47

AR was acquitted of raping a taxi passenger but the rape allegation was disclosed in his Enhanced Criminal Record Certificate when applying for jobs. The Supreme Court dismissed his appeal, holding the disclosure was a proportionate interference with his Article 8 rights.

Facts

The appellant, AR, was a married man of previous good character, a qualified teacher working as a taxi driver. On 21 January 2011 he was acquitted at Bolton Crown Court of raping a 17-year-old female passenger. There was no scientific evidence; the trial turned on the credibility of AR and the complainant.

Following his acquittal, AR applied for an Enhanced Criminal Record Certificate (ECRC) under section 113B of the Police Act 1997 in connection with a lecturing post. The first ECRC, issued on 22 March 2011, disclosed the allegation, arrest, charge and acquittal under the heading ‘other relevant information disclosed at the Chief Police Officer’s discretion’. A second ECRC in identical terms was issued on 28 March 2012 in connection with a private hire driver’s licence application.

AR objected, arguing the disclosure was prejudicial and prevented him obtaining employment. The Greater Manchester Police’s Information Governance Unit reviewed and upheld disclosure. The reviewing officer, Ms Wilson, took the view (controversially) that because the CPS had charged AR, the allegation was on the balance of probabilities more likely true than false, and that acquittal merely meant the criminal standard had not been met.

Issues

Permission to appeal was granted only on Article 8 ECHR. The principal issues were:

• Whether the disclosure constituted a proportionate interference with AR’s Article 8 right to respect for private life, having regard to the limited utility of the information to recipients;
• Whether there was procedural unfairness through lack of consultation;
• The proper role of an appellate court in reviewing a first-instance judge’s finding of proportionality under the Convention.

Arguments

Appellant

Mr Southey QC submitted that the Court of Appeal had erred in failing to conduct its own assessment of proportionality. On the substance, he argued that reliability of the allegations was the starting point and could only be assessed by detailed analysis of the trial evidence (relying on R (RK) v Chief Constable of South Yorkshire Police). Given the gravity of the allegations and harm to AR, disclosure should not have been made unless the allegations were established on the balance of probabilities. Merely informing employers of the fact of charge and acquittal would lead to speculation and could not be proportionate.

Respondents

Ms Richards QC for the Chief Constable contended that conducting a ‘mini-trial’ was neither necessary nor practicable. The decision was a balancing exercise involving gravity, relevance, recency, reliability and impact. The serious nature of the allegation, its direct relevance to the post, and its recency weighed in favour of disclosure. Mr Moffett QC for the Secretary of State emphasised that disclosure is only part of a recruitment process; employers conduct their own assessment.

Judgment

Lord Carnwath (with whom Lord Kerr, Lord Reed, Lord Hughes and Lord Lloyd-Jones agreed) dismissed the appeal.

Role of the appellate court

The Court reviewed In re B (A Child) [2013] UKSC 33 and Abela v Baadarani [2013] UKSC 44. Lord Carnwath held that the Court of Appeal’s test in R (A) v Chief Constable of Kent, requiring a ‘significant error of principle’, was too narrow if it implied identification of a specific principle infringed. The correct question is whether the trial judge’s decision was ‘wrong’ under CPR 52.11(3), which may arise from an identifiable flaw in reasoning – a gap in logic, lack of consistency, or failure to take account of a material factor. However, an appellate court does not conduct a fresh balancing exercise; mere disagreement is insufficient.

Article 8 substantive analysis

The Court reaffirmed the framework in R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3, particularly Lord Neuberger’s enumeration of relevant factors: gravity, reliability, opportunity to rebut, relevance, time elapsed, and impact on the applicant.

Lord Carnwath rejected the submission that the police must conduct a detailed analysis of trial evidence: that is the task of judge and jury, and it is not the officers’ role to replicate the court or conduct a ‘mini-trial’. The statutory function under section 113B is to identify and disclose relevant ‘information’, not to assess the trial evidence afresh. Ms Wilson had erred in attempting to assess whether the allegation was ‘more likely true than false’.

However, the trial judge (HH Judge Raynor QC) did not make this error. He correctly accepted that the information was ‘not lacking substance’ and that the allegations ‘might be true’, and properly weighed this against AR’s employment difficulties, finding the disclosure justified by the seriousness of the alleged offence, its relevance to the post, and its recency. The information was a matter of public record. No flaw in the judge’s reasoning was identified.

Procedural fairness

The complaint of inadequate consultation failed. The officers were aware of AR’s defence and personal circumstances, considered the impact on his employment, and AR identified no further information he would have advanced.

Implications

The decision clarifies several points:

• Acquittal is no automatic bar to disclosure: An acquittal means only that the criminal standard was not met; it leaves open the possibility the allegation is true. Parliament has authorised disclosure of ‘soft’ information including disputed allegations.
• No mini-trial required: Chief officers are not required (and should not attempt) to conduct a detailed re-evaluation of trial evidence to determine probable guilt. Their task is to identify relevant information, including (where available) information about the circumstances of the acquittal which may bear on its weight.
• Appellate review of proportionality: The ‘significant error of principle’ formulation is too narrow. The test is whether the lower court’s decision was ‘wrong’, which can encompass identifiable flaws in reasoning, but the appellate court does not re-balance afresh.

Lord Carnwath’s postscript expressed significant concerns about the ECRC regime in this context. He noted the lack of objective evidence about how employers treat such disclosures, the unresolved tension with Lord Neuberger’s ‘killer blow’ observation in L’s case, the absence of guidance to employers on handling acquittal-based disclosures, and the danger that employers may infer that disclosure implies the chief officer’s belief in guilt. He observed that the acquitted ‘surely deserve greater protection from unfair stigmatisation’ than the convicted, and called for further consideration of these issues outside the scope of the appeal.

The decision is significant for police forces, the Disclosure and Barring Service, employers in regulated sectors, and individuals subject to ECRC checks following acquittals. It confirms the lawfulness of such disclosures in principle while flagging unresolved policy concerns about their practical fairness and utility.

Verdict: Appeal dismissed. The Supreme Court held that the disclosure in the Enhanced Criminal Record Certificate of AR’s rape charge and acquittal did not breach Article 8 ECHR; the trial judge’s assessment of proportionality disclosed no error or flaw warranting appellate interference.

Source: R (on the application of AR) v Chief Constable of Greater Manchester Police & Anor [2018] UKSC 47