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Decision on disclosure of past allegations to prospective employers

16 November 2018
The High Court dismissed an application which claimed that the Commissioner's disclosure of allegations of sexual assault, for which the Claimant had been acquitted, to prospective employers was disproportionate, inaccurate and in breach of Convention rights.
R. (on the application of E) v The Commissioner of Police of the Metropolis [2018] EWHC 2729

Administrative Court

27 September 2018

Background:

In 2014, the Claimant was arrested following allegations of sexual assault being made by an 18-year-old  female and was subsequently charged with two counts of sexual assault ("the 2014 incident"). He was acquitted in 2016. Later in 2016, the Claimant applied to work as a security officer and the Commissioner received a Disclosure and Barring Service adult workforce application. When reviewing the Claimant’s application, the police disclosure officer ("the disclosure officer") considered another earlier allegation of sexual assault which had been made against the Claimant, as well as the 2014 incident.

It was decided by the disclosure officer that the earlier allegation was insufficiently credible to disclose but that the details of the 2014 incident should be disclosed to the Claimant's prospective employers. Although he made representations, the Claimant failed to dissuade the Commissioner from disclosing the information.

The Claimant also applied to work as a school volunteer (a child workforce application). When the child workforce application was processed, the previous representations made by the Claimant relating to his security officer application were considered.  The force did not believe it was necessary to seek further representations from the Claimant and disclosed the 2014 incident to the school. The Claimant argued that the disclosures to the school and the employer were disproportionate and further, that if the disclosure had been permissible it was inaccurate.


Decision:

In refusing the Claimant's application, Judge Wall QC held that the disclosure officer was not under any duty to investigate the allegations made in the 2014 incident or   re-assess the evidence at the criminal trial.  It had been proper to take the Claimant’s representations denying the allegations into account in respect of the child workforce application, despite the fact that they had been made in respect of the adult workforce application.

The Claimant submitted that the disclosure undermined the acquittal. In response to this, HHJ Wall QC held  that “The short answer to that is that it obviously did not…………it would be obvious to anybody who was reading this that they were reading of an allegation which had not been accepted by the jury to the criminal standard at trial. The report does not undermine the effect of the acquittal: it emphasises it.

The decision in R (on the application of AR) V Chief Constable of Greater Manchester Police [2018] UKSC 47; [2018] 1 W.L.R. 4079, where it was held that the inclusion in an enhanced criminal record certificate of details of an individual's acquittal on a charge of rape was a proportionate interference with that individual's  Article 8 rights was followed. In this case Lord Carnwath made it clear that it was appropriate in the right case to disclose information relating to cases that had gone to trial but had resulted in an acquittal.

It was further held that the decision to disclose the allegations was not disproportionate. The Claimant's case was that the child work force application was made so he could accompany his own child on a school trip. However, the court   considered that the certificate was transferable and could be used in different situations. It was submitted that the Claimant could seek to use it at a later stage in order to work with young people closer in age to the victim in the 2014 incident.  The Judge also noted that once the certificate is issued, it could be used by the Claimant in order to justify applying for any job in the adult sector. The judge stated that “In my judgment, there is nothing irrational about the way in which the decision was reached.”

Furthermore, it was clear that the terms of the disclosure were factually accurate.

Comment:

As stated in AR by Lord Carnwath "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."

However, Lord Carnwath was concerned at the lack of information about how a disclosure is likely to be treated by a potential employer.  He went on to state in his post script  that "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."

It was further noted in the postscript that these issues require further consideration and careful thought needs to be given to the value in practice of disclosing allegations which have been tested in court and have led to acquittal. Given this, it seems unlikely that this latest challenge will be the last in cases concerning disclosure of acquittals for serious offences.

Further Reading

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