Haunted by one’s past – yet another criminal records case

As I mentioned in my post last week, the case of T v Secretary of State for the Home Department, which concerns the legality of the current CRB regime, is shortly to be considered by the Supreme Court. The issue in T is whether the blanket requirement that criminal convictions and cautions must be disclosed in the context of an enhanced criminal record check (“ECRC”) undertaken for the purposes of certain types of employment (particularly employment with children or vulnerable adults), even though they are spent, is Article 8 compliant.

But what of cases where an accused has been through the criminal justice system only then to be acquitted of the alleged offenses? Should the data slate in respect of that individual be wiped clean, with the result that the allegations can never surface in the context of an ECRC? Answering that question brings into play the important maxim that, within the criminal justice system, one must be deemed innocent until proven guilty. However, balanced against that maxim, is the recognition that there will be cases where an accused was in fact guilty of the crimes alleged against them, albeit that the Crown was unable to prove that guilt beyond all reasonable doubt. Such individuals may well pose a substantial threat to society, despite their acquittal in the criminal courts. So how should the relevant disclosure bodies balance these competing considerations in the context of the ECRC scheme?

Earlier this year I blogged about two cases where the courts had considered this difficult question in respect of allegations of criminal conduct which had been made, but not proven, as against teachers. In the first case, R (L) v Chief Constable of Cumbria Constabulary [2013] EWHC 869 (Admin), the allegations against the teacher never reached the stage of a criminal prosecution. In the second case, RK v (1) Chief Constable of South Yorkshire (2) Disclosure and Banning Service [2013] EWHC 1555 (Admin), the teacher was acquitted following a criminal trial (see my post here). In both cases, the court held that the inclusion in the relevant ECRCs of information relating to the allegations was unlawful as constituting an unjustified interference with the teacher’s Article 8 rights. A key feature of both of these judgments is that, in the court’s view, the police had acted unlawfully by effectively suggesting that the allegations had been well-founded, despite the lack of any criminal conviction. In a sense, these judgments are unsurprising. After all it cannot be right for the police to suggest that an individual is guilty of an offence when they have not been convicted of any offence following a criminal prosecution.

But does that mean that it will always be unlawful to disclose information about criminal allegations where those allegations have not culminated in a conviction? The recent judgment of the High Court in the case of R(AR) v Chief Constable of Greater Manchester Police & Secretary of State for the Home Department (Case No: CO/13845/2012) indicates that the answer to that question is no.

In AR, an individual who had previously worked as a taxi driver had been accused of raping a particular passenger. He had been acquitted following a criminal trial taking place in January 2011. In March 2012, the Criminal Records Bureau issued an ECRC in connection with an application made by AR for a licence as a private-hire driver. The ECRC made reference to the allegation of rape as against AR. It also confirmed that he had been acquitted following a trial before the Crown Court. AR sought a judicial review in connection with that certificate on the basis that it breached his Article 8 right to privacy. The High Court held that the certificate was unimpeachable. In reaching this conclusion, it is clear that the court was of the view that: (a) the certificate was itself a fairly balanced document and, further, (b) this was a case where the Chief Constable had properly recognised that, whilst the allegations against AR had not been proved to the criminal standard, there was sufficient evidence to suggest that they may yet be well founded and (c) it was reasonable and proportionate to include the allegations in the ECRC given the risk posed to vulnerable passengers if AR had in fact committed the crimes alleged against him.

The court also rejected arguments to the effect that the police’s retention of the data was unlawful under Article 8 and, further, that the police had acted unlawfully by not consulting AR prior to including the information in the ECRC. So far as data retention was concerned, the court held that the police had legitimate reasons for retaining the data both because it may be relevant if further allegations were made against AR and also because other matters could arise involving the complainant. On the procedural challenge relating to the lack of consultation, the court held that this was not well founded both because AR had had an opportunity to put his case in the context of an earlier comparable ECRC and because the police had in any event anticipated all the substantive arguments AR might have wanted to make.

Importantly therefore, an acquittal is not the get out of jail free card it might at first appear to be, certainly in terms of the accused’s data rights.

Jason Coppel QC, who is also acting in the T case, appeared for the Secretary of State.

Anya Proops