Forcing the innocent to disclose untrue accusations

Acquittals don't necessarily mean the shadow of a rape allegation disappears

The Court of Appeal, led by the Master of the Rolls, published its judgment in the case of Regina (R) v Chief Constable of Greater Manchester Police & Another a few days ago.

While the title of the case may have non-lawyers reaching for the back button to escape a boring legal discussion, I beg you to hold fire just a moment because this is one of those cases that just might impact on your life one day.

In Greater Manchester Police (sorry I’m not typing the whole case name out every time – maybe I should call it Peter’s case, since that’s the name of the Chief in question… on second thoughts that’s probably too silly even for me), the court considered an appeal from the High Court against the dismissal of R’s claim for judicial review. The Greater Manchester Police case began when R was accused of rape – he was put on trial and acquitted. For the moment, we know no more about him or his case than that. We don’t know whether R was the victim of a false allegation, mistaken identity or something else. What we do know is that he was acquitted and so is innocent of the crime. We also know that he applied for a job as a driver, which he appears not to have got purely because his prospective employer required an enhanced criminal record certificate, which showed that he had been charged, tried and acquitted of rape. According to the case reports, we do know that the allegation of rape was made in connexion with past employment as a driver.

You may be aware that in England and Wales (indeed in all civilised nations I know of – even the Americas and France) a person is innocent until proven guilty. This means that when he is found not guilty he can properly be described as innocent. This has been the situation in E&Ws for a thousand years or more and, as a gift to Europe, following their numerous experiments with tyranny, we enshrined that presumption into the European Convention on Human Rights, in article 6.2.

In 2013, the European Court of Human Rights held that public officials are not to treat a person as if they are guilty of a crime for which they have been acquitted (Allen v United Kingdom). This should be no surprise to any English lawyer where the plea at Bar of autrefois convict long pre-dates the ECHR, albeit that the convention rights are far broader.

Given that somebody is innocent unless proven guilty and that government officials should not treat a person as guilty when they have been acquitted you might think that telling prospective employers about past allegations that turned out not to be true might breach article 6.2 and the Allen case. But, not so said the court of appeal. By the way, while I say it shouldn’t be a surprise, I’m of course excluding magistrates’ courts where law doesn’t apply and where I once saw a District Judge refuse to allow a recently acquitted defendant to recover his costs because “he might still be guilty”!

Their Lordships found that article 6.2 applies only to public statements by organs of the state and not to private documents such as a criminal record check. Personally, I find that an odd demarcation line; are the court seriously suggesting that the police cannot make a public statement about an individual but can send a private letter to every prospective employer, e.g. every cab firm or every school, etc in the area, thus preventing him ever getting a job?

Of course, it’s worth remembering that one of the reasons criminal record checks exist is because of the Soham murders, in which two 10-year-old girls, Holly Wells and Jessica Chapman were murdered by the caretaker of a nearby secondary school who would not have got his job had past allegations against him been disclosed to the school. It’s also worth remembering that his job was not how he gained access to the girls – that was because they came past his house and he invited them inside to visit his girlfriend who was their teaching assistant.

There is a serious discussion to be had about this type of case. Just where do we strike the balance between liberty and rights of the wrongly accused and the safety of society. There are some people who say we should do everything possible to prevent crimes occurring in the first place, but that way leads to imprisonment for everyone until such time as they can prove they’re innocent of everything. On the other hand, there are those who favour everyone taking their own chances in life – my experience of such people is that they’re the ones most likely to be eaten alive in such a society so I’ve never really understood where they’re coming from.

Where do we strike the balance? Should a person who is innocent have the right to have his past trial forgotten or should the local community be alerted to past accusations, just in case the jury got it wrong, as my legally challenged District Judge thought? The answer for many people is, “what if it were your wife or daughter who was raped and could have been saved had disclosure like this taken place?” That is a lazy argument and easily contradicted with, “what if it were your father or son whose life were ruined by a false allegation that followed him around because the police keep telling everyone about it?”

The Soham Murders present another factor – should we check the criminal records not only of school staff but of their family who might come into contact with children (or children’s details) as a result of their relationship with the staff member?

So, where is the balance to be struck? Buggered if I know – do you?

What I would hope happens in every case is that somebody sits down with the application for disclosure, reads it and looks at past incidents then make a decision as to what is disclosed. What I expect happens is that an application comes in and they just print off whatever is on the record and pop it in the post.