On 30 July 2018, the Supreme Court handed down judgment in R (AR) v Chief Constable of Greater Manchester Police & Secretary of State for the Home Department  UKSC 47. The appeal concerned the proportionality under Article 8 ECHR of the disclosure on an enhanced criminal records certificate (ECRC) of AR’s acquittal at trial of rape of a female passenger in his taxi. AR, a qualified teacher, subsequently sought employment as a teacher and then as a taxi driver and his acquittal was disclosed on an ECRC for the purposes of both applications.
The Supreme Court unanimously dismissed AR’s appeal in a judgment delivered by Lord Carnwath. In considering whether or not to include non-conviction information on an ECRC under section 113B(4) of the Police Act 1997, the police are not obliged to conclude that the applicant has, on the balance of probabilities, committed the offence and they are not required to conduct a detailed analysis, or mini-trial, of the evidence. The Court noted that in cases where the applicant has been charged and tried, there may well be information in the public domain of which the prospective employer is aware which can be appropriately contextualised by disclosure on an ECRC. On the facts of AR’s case, it was proportionate to disclose his recent acquittal on a very serious charge.
Lord Carnwath’s judgment also contains an important confirmation of the correct approach to proportionality by an appellate court. It is not the role of the appellate court to consider proportionality afresh. The standard to be applied by the appellate court is not whether there was a “significant error of principle”, but rather whether the trial judge erred in principle or was “wrong”. However, wrong does not simply mean that the appellate court would have reached a different view.
Jonathan Moffett QC and Christopher Knight appeared for the Secretary of State, instructed by GLD.