Acquittals and Enhanced Criminal Record Certificates

Should you expect to find included in an Enhanced Criminal Record Certificate (ECRC) the fact that someone has been tried for rape and acquitted, when the person concerned claims that this will permanently bar them from employment? How should a school react to this information?

In a case dealt with by the Supreme Court over the summer the individual concerned was of previous good character and married. He was a qualified teacher but had been working as a taxi driver when he was accused of rape by a 17-year-old. She had been a passenger in his taxi while intoxicated. He claimed he had resisted her drunken advances. No forensic evidence was presented. Both were cross-examined at trial. He was acquitted. He subsequently applied for two jobs: as a lecturer and as a private hire driver. Both times his ECRC factually referred to his trial and acquittal. He sought a review against its inclusion. The reviewer rejected his objection:

‘Although the acquittal indicates that the allegation might not be true, the legislation and guidance is clear that allegations that might not be true can be disclosed, as the test required for CRB disclosure purposes is lower than this.’

The law at that time was Section 113B of the Police Act 1997. The test was that:

‘...in the chief officer’s opinion (the material disclosed) might be relevant… and ought to be included in the certificate.’ (Following the Mason Report the wording changed. Now it lays an obligation on the chief officer only to include material which the chief officer ‘reasonably believes to be relevant’).

Before the Supreme Court the grounds were a breach of Section 8 of the European Convention on Human Rights (respect for Private Life) but essentially the argument was that he had been found not guilty, therefore he was innocent, but that ‘This will affect the rest of my life and future as nobody will employ me to teach with this disclosed on my CRB.’

The Supreme Court rejected the appeal. The trial and acquittal were matters of public knowledge. An employer might have heard it from other sources. The purpose of the ECRC was to indicate possible risk. His ECRC gave no indication whether the chief officer considered the allegation to have been true or false. The judgement in his case had not been based, for example, on mistaken identity, making the allegation plainly wrong. The Court expressed concern that no information existed to show the impact of the inclusion of allegations after acquittal and noted that it appeared that chief officers differed in the extent to which such allegations were included.

The ECRC’s purpose is to alert a potential employer such as a school to issues or patterns in the history of an applicant. It is for the employer to examine it; consider any patterns; question the potential employee; and to assess the risk.  The Supreme Court considered that the balance between the rights of the individual and public had been correctly set.