Innocent, but not suitable for this job?
Senior Associate, Veale Wasbrough Vizards
In R (on the application of AR) v Chief Constable of Greater Manchester Police and anor, the Court of Appeal held that the inclusion of a rape charge and acquittal in an enhanced criminal records check was not a breach of human rights.
AR, a qualified teacher, went on trial in 2011 charged with rape. He was found not guilty and was acquitted of the offence.
In search of work, AR applied firstly for work as a teacher and subsequently applied as a private hire taxi driver. The application process for both jobs required him to undergo an enhanced criminal records check. On both occasions the enhanced criminal records certificate contained summary details of the rape charge and acquittal. He was unsuccessful in his application for both jobs.
An enhanced criminal records certificate can include details of unspent and spent criminal convictions as well as other information which a Chief Constable determines should be included, because it is relevant and proportionate to do so.
AR appealed against the inclusion of this information in the first certificate using the internal police complaints procedures. His appeal was unsuccessful. The reviewing officer concluded that it was relevant and proportionate to include the information. This was in part because it was a serious incident and it determined that the potential employer should know of it in order to properly assess the level of risk to vulnerable people if AR was appointed. The reviewing officer noted that this decision would inevitably have an impact on AR's human rights as he may fail to gain employment in his chosen profession although it would not prevent him from working in a profession which did not require an enhanced criminal records check.
When the information was disclosed in the second criminal records certificate, during AR's application for work as a taxi driver, he commenced judicial review proceedings in the High Court. He claimed that disclosure of the allegation and acquittal in the certificate infringed his rights under the European Convention on Human Rights and Fundamental Freedoms (the Convention). Specifically, he alleged a breach of Article 6(2) (the right to presumption of innocence until proven guilty) and Article 8 (the right to respect for private and family life).
The High Court
The High Court rejected AR's challenge holding that there was no breach of Article 6(2) or Article 8 of the Convention. This was because the Chief Constable was entitled to conclude that it was reasonable to believe the information might be true, as it was relevant to the position applied for, it was a serious incident and had occurred relatively recently.
AR appealed to the Court of Appeal.
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The Court of Appeal
The Court of appeal dismissed AR's appeal again holding that:
- there was no breach of Article 6(2) because it was only engaged in matters where there had been an acquittal in a criminal court followed by a linked consideration of whether the facts of the acquittal were true or untrue. A summary reference to the charge and acquittal in a document which was not in the public domain did not undermine the acquittal
- the certificate did not state that AR was guilty of the offence and, whilst mention of the matter would serve as an alert to a potential employer, that did not undermine the acquittal
- there had been sufficient consideration given to whether alerting an employer to a potential risk to vulnerable people outweighed the detriment that would be suffered by the individual caused by the disclosure of the information.
A criminal record, or the inclusion of information from a Chief Constable, is not a bar to employment. Employers recruiting for positions which are eligible for a criminal records check are entitled to take any information disclosed into consideration when deciding whether an applicant is suitable for the role. Employers are lawfully permitted to reject an individual on the basis of the information disclosed in the criminal records certificate.
Each case of course turns on its facts and employers would be well served by using objective assessment criteria, that are applied fairly and consistently to decide whether criminal records information affects an applicant's suitability.