Police forces can reveal whether individuals have been acquitted of criminal charges when issuing information for enhanced record checks, the supreme court has ruled.

The decision establishes new guidelines in balancing an individual’s right to privacy when applying for employment against the need to protect public safety.

The legal challenge was brought by a man identified in court only as AR, who was married with children and of previous good character. He was a qualified teacher but had been working as a taxi driver.

In 2011, he was acquitted of rape by a crown court. His defence was that there had never been sexual contact with the victim. Following his acquittal, he applied for an enhanced criminal records certificate (ECRC) during an application for a job as a lecturer.



The ECRC that was issued contained details of the rape charge for which he had been acquitted. AR objected to the disclosure on the basis that there had been no conviction and that it failed to give a full account of the evidence and how the jury came to its conclusion.

An ordinary criminal records certificate is limited to the facts of any convictions, police cautions or their absence. By contrast, an ECRC includes information on the basis simply of the chief constable’s opinion whether it “ought to be included in the certificate”.

Delivering the unanimous ruling, Lord Carnwath said: “Given that parliament has clearly authorised the inclusion in ECRCs of ‘soft’ information, including disputed allegations, there may be no logical reason to exclude information about serious allegations of criminal conduct, merely because a prosecution has not been pursued or has failed.



“In principle, even acquittal by a criminal court following a full trial can be said to imply no more than that the charge has not been proved beyond reasonable doubt. In principle, it leaves open the possibility that the allegation was true, and the risks associated with that.”



But, Carnwath added, the cases raised questions about how employers are supposed to handle such revelations. “We have been shown reports which emphasise the importance of not excluding the convicted from consideration for employment, but they say nothing about the acquitted, who surely deserve greater protection from unfair stigmatisation,” he noted.

“Nor does there appear to be any guidance to employers as to how to handle such issues. Even if the ECRC is expressed in entirely neutral terms, there must be a danger that the employer will infer that the disclosure would not have been made unless the chief officer had formed a view of likely guilt.”

Mike Pemberton, a partner at the law firm Stephensons who represented AR, said he was considering appealing against the decision. “This was an important case which examined whether an acquittal should be disclosed on an enhanced criminal records check. My client is very disappointed at the dismissal of his appeal and findings that disclosure of the information was proportionate.

“He has continuously struggled to pursue his chosen career since the allegation of rape was made against him and he was found not guilty following trial due to the continued disclosure. The supreme court only granted permission to appeal in respect of the right to privacy and did not consider the presumption of innocence. We are now considering whether to make an application to the European court of human rights in respect of both these issues.”

Stefano Ruis, a solicitor at the law firm Hickman and Rose, said: “Today’s judgment represents another nail in the coffin for the presumption of innocence. [It] indicates support for the notion that the police do not need to believe that the allegation is more likely than not to be true when deciding whether to disclose it, even where the allegation led to an acquittal.



“This means that, even after being acquitted by a jury, an individual can still face the penalty of losing their job or employment prospects. After acquittal, there is little more an individual can do to prove their innocence and today’s decision accepts that such disclosure amounts to a killer blow for those in particular types of work.”





