Disclosure of police intelligence on enhanced DBS checks

Although Unlock as a charity primarily focuses on people with convictions and cautions, a recent case about a rape acquittal is an important one for a lot of people that use our website that have other things on their police record. 

At the end of July 2018 a case was heard in the Supreme Court [R (AR) -v- Chief Constable of Greater Manchester Police and another] relating to the lawfulness of the disclosure of a rape acquittal on an Enhanced Criminal Record Check (ECRC).

The details of the case are that in 2011 AR was acquitted of rape. At the time he was working as a taxi driver and it was alleged that he raped a 17 year old passenger in his taxi. His defence was that there had never been any sexual contact with the alleged victim.

Following acquittal, he applied for an enhanced DBS check in relation to a job he’d applied for and, under the ‘other relevant information’, the following statement was included:

On … police were informed of an allegation of rape. A 17 year old female alleged that she had been intoxicated and travelling in a taxi. The driver had conveyed her to a secluded location where he forcibly had sex with her without her consent.

AR was identified as the driver and was arrested. Upon interview he stated that the female had been a passenger in his taxi, but denied having sex with her, claiming that she had made sexual advances towards him which he had rejected. Following consideration by the CPS, he was charged with rape and appeared in court where he was found not guilty and the case was discharged.

In the Court of Appeal, AR argued that the criminal record check infringed his rights under Article 6(2) of the Human Rights Act because it effectively treated him as if he were guilty of the offence of which he had been acquitted; also the disclosure was disproportionate. The Court of Appeal rejected these arguments and dismissed the appeal.

The Supreme Court was asked to consider whether:

1. The disclosure was a breach of the presumption of innocence
2. The disclosure was procedurally unfair because it was inconsistent with AR’s acquittal and/or occurred without consultation
3. The retention and disclosure of the data was a breach of article 8 of the Human Rights Act.

The appeal against the disclosure was dismissed as it was deemed reasonable, proportionate and no more than necessary to secure the objective of protecting young and vulnerable persons.

The court did not believe that it was appropriate for those responsible for an enhanced DBS check to conduct a detailed analysis of the evidence of the trial. Therefore it was not the case that disclosure could only be justified if the officers were in a position to form a positive view of likely guilt. The court held that the information was a matter of public record and might have come to the employer’s knowledge from other sources.

The court did state however that the case gave rise to more general concerns about the procedure as there is no clear guidance as to what weight should be given to an acquittal in different circumstances as well as a lack of information about how an employer would treat the disclosure.

Although the outcome of the case is disappointing, it’s important to note that relevant information is only disclosed in a small number of cases. The data provided by Greater Manchester Police (GMP) showed the following between April 2017 and March 2018:

Ms Richards acting for GMP was at pains to emphasise that an enhanced DBS check is only part of the information available to employers and would not necessarily lead to failure. The Supreme Court had been shown reports which emphasised the importance of not excluding those with convictions for employment but they said nothing about those who had been acquitted. The court stated that there was little guidance given to employers as to how to handle these issues but they believed that even when relevant information was expressed in entirely neutral terms, there must be a danger that the employer would infer that the disclosure would not have been made unless the chief officer had formed a view of likely guilt.

Although this case is separate to the Supreme Court filtering case that Unlock is involved in (which is still pending judgment), it will be interesting to see whether (if and if so how) the outcome of this case will feature in the judgment that the court gives on the filtering case.

For more information

1. For practical self-help information – More information is available on disclosure of police intelligence and enhanced checks
2. Our policy work – Read about the policy work we’re doing on challenging the DBS filtering process
3. Questions – If you have any questions about this, you can contact our helpline.