R (on the application of AR) v. Chief Constable of Greater Manchester Police and another - (30 Jul 2018)

Disclosure of past record is necessary to meet pressing social need

Civil

Present appeal concerns the legality under the Human Rights Act, 1998 and the European Convention on Human Rights and Fundamental Freedoms of an Enhanced Criminal Record Certificate (“ECRC”) issued in respect of the Appellant (“AR”) under Section 113B of the Police Act 1997. The certificate gave details of a criminal charge for which he had been tried and acquitted. The Court of Appeal held that, the information contained in the certificate involved no breach of his rights under either Article 6.2 (presumption of innocence) or Article 8 (right to respect for private and family life). The main issue is whether the admitted interference with his private life involved in the disclosure was justified, having regard in particular to what is said to be the limited utility to its recipients of the information so disclosed.

The principal dispute is related to the substantive obligation under Article 8. There is no dispute that the disclosure involved an interference with AR’s rights under the article. The issue is whether, in terms of Article 8.2, it was necessary for the protection of the rights and freedoms of others to limit intervention to a “significant error of principle” is too narrow an approach, at least if it is taken as implying that the Appellate Court has to point to a specific principle - whether of law, policy or practice - which has been infringed by the judgment of the court below. In the present case, it was sufficient for the Court of Appeal to consider whether there was any such error or flaw in the judge’s treatment of proportionality. If there was not, there was no obligation for the Court of Appeal to make its own assessment.

The information about the charge and acquittal was in no way secret. It was a matter of public record, and might have come to a potential employer’s knowledge from other sources. If so, a reasonable employer would have been expected to want to ask further questions and make further inquiries before proceeding with an offer of employment. Its potential significance was as the judge found underlined by “the seriousness of the alleged offence, its relevance to the position applied for, and its comparatively recent occurrence”. The judge took full account of the possible employment difficulties for AR, but regarded those as “no more than necessary to meet the pressing social need” for which the ECRC process was enacted. There was no error in the judge’s reasoning. Appeal dismissed.

Tags : INFORMATION DISCLOSURE RECORD CERTIFICATE