UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Dévante Gravesande-Smith and Rebecca Khan (Matrix)

In November 2017, the Supreme Court (sitting in a panel comprising Lord Mance, Lord Kerr, Lord Reed, Lord Hughes and Lord Lloyd-Jones) will hear this appeal relating to the lawfulness of the disclosure of a rape acquittal on an Enhanced Criminal Records Check (‘ECRC’).

Background

The appellant was charged with the rape of a 17 year old woman, but was subsequently acquitted at trial. As part of the appellant’s application to work as a teacher, the Secretary of State for the Home Department (‘SSHD’) issued an ECRC. Greater Manchester Police (‘GMP’) supplied summary details of the rape allegation and acquittal, which the SSHD included in the ECRC. The appellant’s internal challenge to the disclosure of this information via the procedure of the GMP was rejected. The appellant subsequently applied for a second ECRC in order to obtain a licence as a taxi driver.  The GMP provided the SSHD with the same information without consulting the appellant. The appellant issued judicial review proceedings in respect of the second ECRC.

In the Court of Appeal

In the Court of Appeal ([2016] EWCA Civ 490), the appellant argued that the ECRC infringed ECHR, art 6(2) because it effectively treated him as if he were guilty of the rape offence of which he had been acquitted. The appellant submitted that the ECRC breached his ECHR, art 8 rights both procedurally, as he was not consulted prior to the issue of the second ECRC, and substantively, as disclosure was disproportionate, having regard to the reliability of GMP’s reasons for disclosing the acquittal.

The Court of Appeal rejected these arguments and dismissed the appeal. McCombe LJ (with whom Lord Dyson MR and David Richards LJ agreed) considered the approach to art 6(2) taken by the domestic and Strasbourg courts ([34]-[53]). He concluded that there was no violation of art 6(2) because the statement for onward transmission in the ECRC was extremely limited and nowhere in the ECRC was it suggested that the appellant was guilty of the rape offence [56]. There was no procedural link to the criminal proceedings and there was no suggestion that the jury had been wrong to acquit [57].

Turning to art 8, the Court held that there was no procedural violation because the appellant had raised his concerns in challenging the first ECRC and he had not identified any new specific considerations [66]. When determining whether there has been a substantive breach of art 8, an appellate court should only consider the issue of proportionality for itself if it finds that the judge has made “a significant error of principle” [74]. Judge Raynor correctly directed himself to the material considerations and there was no reason to disagree with the assessment of proportionality that he made [75]-[76].

Issues before the Supreme Court

The Supreme Court must consider whether disclosure of details of a rape acquittal in an ECRC violates the presumption of innocence protected by ECHR, art 6(2) ECHR.

It must also consider, in respect of ECHR, art 8 (i) whether an appellate court should determine the issue of proportionality for itself; (ii) whether disclosure of the acquittal was disproportionate; and (iii) whether disclosure of an acquittal in an ECRC is in accordance with law when no independent review of the information occurs prior to disclosure.

This appeal is to be heard on 21 November 2017.