disclosure and barringCRB checks, DBS checks or ECRCs, whatever they are called, criminal record checks have become an integral part of many employment and recruitment procedures.

The object is laudable: to protect children and vulnerable people from coming into contact from those who are unsuitable to be among them. However, a decision of the Supreme Court at the end of July has exposed an interesting aspect of enhanced checks that many people did not realise and which raises interesting questions concerning our justice system and how mere involvement in a criminal process without any finding of wrongdoing can still result in a disclosure which can call into question the suitability of the individual concerned.

The case concerned someone known as “AR” (he cannot be named for legal reasons), a qualified teacher who was found not guilty of rape in 2011 after a Crown Court trial.

Although he was found not guilty, details of the allegation and the verdict were included in his criminal records certificate. Following hearings on 21 November 2017 and 23 April 2018, Lord Carnwath delivered the judgment of the Supreme Court on 30 July. The respondents were the Chief Constable of Manchester Police and the Home Secretary.

In a report into the operation of the criminal records legislation, its author Sunita Mason pointed out that there was:

“…a degree of dissatisfaction with a system that has evolved with the laudable aim of protecting vulnerable people but is now viewed by some as intrusive and an unnecessary bar to employment. There is also concern that some people may be treated as ‘guilty until proven innocent'”

As a result of her report there were amendments to the legislation including a right to request a review. Under the current legislation, there are three forms of certificates. A criminal conviction certificate (CCC) provides details of every conviction held in central records but not including spent convictions. They are available to any applicant over 16 on payment of a fee. Criminal record certificates (CRCs) also include spent convictions and cautions. An application for a CRC must be signed by a “registered person”. They are generally used in connection with applications for employment which involves working with children or vulnerable adults.

The third type of certificate is an enhanced criminal record certificate (ECRC). In addition to the other disclosures, these can include details of “every relevant matter” held in central records concerning the individual which, in the opinion of the chief officer of every relevant police force, might be relevant and ought to be included. Thus, the ECRC may include information beyond the factual record and which has been included as the result of the exercise of one or more opinions. It is therefore subject to the exercise of discretion. ECRCs may be obtained in connection with work involving children and/or vulnerable adults, as well as in connection with applications involving national security and when applying for a taxi driver’s licence.

In 2011 AR, a married man with children, of previous good character and a teacher, was acquitted of rape. At the relevant time he had been working as a taxi driver. It was alleged that at about 1.00 a.m. on 4 November 2009, he raped a 17-year-old female passenger. His defence claimed that there was no sexual contact and there was no scientific evidence to support or undermine the allegation.

In March 2011, an ECRC (obtained in connection with an application for a job as a lecturer) included the following:

“On 4/11/09 police were informed of an allegation of rape. A
17 year old female alleged that whilst she had been intoxicated
and travelling in a taxi, the driver had conveyed her to a
secluded location where he forcibly had sex with her without
her consent.

“AR was identified as the driver and was arrested. Upon
interview he stated that the female had been a passenger in his
taxi, but denied having sex with her, claiming that she had
made sexual advances towards him which he had rejected.
Following consideration by the Crown Prosecution Service, he
was charged with the rape of a female aged 16 years or over, and
appeared before Bolton Crown Court on 21/01/11 where he
was found not guilty and the case was discharged.”

AR objected to the inclusion of this information, pointing out that there was no conviction, that disclosure was very prejudicial to him and that it was “wrong, unfair and grossly prejudicial [that] I should have to defend myself every time I apply for employment after the jury have ruled that I am an innocent man”.

AR applied for judicial review, relying among other things on Article 6 of the European Convention on Human Rights (right to a fair trial and presumption of innocence). His application failed and he was also unsuccessful in the Court of Appeal on the basis that the issue of the certificate “did not undermine the appellant’s acquittal”.

In the Supreme Court, Lord Carnwath pointed out that the information about the charge and acquittal was in no way secret. It was a matter of public record and could have come to the prospective employer’s attention by other means.If so, a reasonable employer would want to make further enquiries concerning the suitability of the prospective employee. As a result, the appeal was dismissed.

However, Lord Carnwath added a postscript to his judgment. He said that he had general concerns about the operation of the ECRC procedure. For example, “soft information”, such as that concerning an acquittal, “might be said to imply no more than that the charge has not been proved beyond reasonable doubt. In principle, it leaves open the possibility that the allegation was true, and the risks associated with that”.

So, how is an ECRC likely to be treated by employer? Lord Carnwath was concerned about what happens in practice. “We have been shown reports which emphasise the importance of not excluding the convicted from consideration for employment, but they say nothing about the acquitted, who surely deserve greater protection from unfair stigmatisation”. He went on to point out that there appears to be no guidance for employers as to how to deal with such information. The nub of the problem is this:

“Even if the ECRC is expressed in entirely neutral terms, there must be a danger that the employer will infer that the disclosure would not have been made unless the chief officer had formed a view of likely guilt.”

The recent news coverage strongly suggests that many people were unaware that the expression of opinions of senior police officers rather than just hard facts can be included in such reports. The obvious problem is one of perception since it is easy to think of many situations in which the police take the view that someone has committed a crime, only for that person to be acquitted at trial. It is a trait of human nature that there is a reluctance to admit mistakes and cases such as that involving AR will necessarily have involved a decision by the police to forward the matter to the CPS with a view to prosecution.

Whether this state of affairs is right or not, it is permitted as the law stands. The worry is that far too many people, including prospective employers will take the view that there is no smoke without fire and that they must have been provided with the information for a reason, i.e. that the individual was acquitted but…