...for an Enhanced Criminal Record Check (ECRC) to include the fact that he had been acquitted on a charge of rape.
AR was charged with the rape of a 17 year old woman whilst he was working as a taxi driver. At trial, a jury found AR not guilty and he was acquitted.
AR is a qualified teacher, and subsequently applied for several teaching jobs. Part of the application process for these jobs required AR to provide an enhanced criminal records certificate, which is issued by the Disclosure and Barring Service (DBS). The certificate contained the following information about the rape charge, which was provided by the Chief Constable of the Greater Manchester Police:
"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 rape of 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 appealed under the police complaints procedure. The appeal was rejected, and it was noted under the reasons for the rejection that, owing to the CPS' decision to prosecute, an acquittal was not necessarily indicative of innocence, but instead that it was not possible to determine guilt beyond all reasonable doubt.
AR applied for judicial review, initially in the High Court and subsequently in the Court of Appeal. We reported on those decisions in a previous article.
The Supreme Court was asked to decide if the correct balance had been struck between the two competing objectives of protecting AR's right to private and family life, and protecting young and vulnerable people. The appeal was unanimously rejected with the Supreme Court deciding that the requirement to protect young and vulnerable people outweighed AR's Article 8 rights. Among the reasons for this decision were:
In a postscript to the Supreme Court decision, Lord Carnwath raised general concerns about the value of including reference to acquittals in an ECRC, and about the lack of guidance available to employers about how to treat such information once disclosed.
In this case the Chief Constable argued that the information in the ECRC formed only part of the information that a prospective employer would have when making an appointment decision. However, it has been noted in previous case law that an adverse ECRC is likely to be a 'killer blow' to an application for a sensitive position.
Employers remain lawfully entitled to reject an application on the basis of information disclosed in a criminal records certificate. However, a criminal record in not necessarily a bar to employment and employers should strive to act fairly towards such applicants. Whilst guidance may be helpful it could also be difficult to apply to the many different work types that are eligible for criminal records checks. In the absence of any such guidance a reasonable approach would be to treat each case on its facts, using objective and measureable criteria to assess any criminal records information that is disclosed.