R (on the application of AR) v Chief Constable of Greater Manchester Police and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lord Justice Richards,The Master of the Rolls |
| Judgment Date | 10 June 2016 |
| Neutral Citation | [2016] EWCA Civ 490 |
| Date | 10 June 2016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2014/0060 |
[2016] EWCA Civ 490
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
HIS HONOUR JUDGE RAYNOR QC
(SITTING AS JUDGE OF THE HIGH COURT)
CO/13845/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Dyson, Master of the Rolls
Lord Justice McCombe
and
Lord Justice David Richards
Case No: C1/2014/0060
Hugh Southey QC (instructed by Stephensons) for the Appellant
Jenni Richards QC (instructed by Solicitor to the Greater Manchester Police) for the First Respondent
Jonathan Moffett (instructed by the Government Legal Department) for the Second Respondent
Hearing dates: 7 & 8 April 2016
Approved Judgment
On 21 January 2011 in the Crown Court at Bolton, after a trial before HH Judge Rumbelow QC and a jury, the appellant was acquitted of a charge of rape, which it was alleged had been committed by him on 4 November 2009 on a 17 year old young woman. Notwithstanding that acquittal, in two Enhanced Criminal Record Certificates ("ECRCs"), issued by the Criminal Records Bureau on behalf of the Second Respondent on 21 March 2011 and 28 March 2012 respectively (in respect of the appellant's intended employment, first for a teaching post and secondly as a taxi driver) summary details of the allegation and of the acquittal were set out on the basis of information supplied by the First Respondent. The details were as follows:
"5. Other relevant information disclosed at the Chief Police Officer(s) discretion
Greater Manchester
GREATER MANCHESTER POLICE HOLD INFORMATION CONCERNING [AR] DOB…. THAT IN THE OPINION OF THE CHIEF OFFICER MIGHT BE RELEVANT TO THIS APPLICATION, AND OUGHT TO BE DISCLOSED UNDER PART V OF THE POLICE ACT 1997.
ON 04/11/09 POLICE WERE INFORMED OF AN ALLEGATION OF RAPE. A 17-YEAR OLD FEMALE ALLEGED THAT WHILST 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 CROWN PROSECUTION SERVICE, HE WAS CHARGED WITH RAPE OF FEMALE AGED 16 YEARS OR OVER, AND APPEARED BEFORE BOLTON CROWN COURT ON 21/01/11 WHERE HE WAS FOUND NOT GUITLY AND THE CASE WAS DISCHARGED."
Under relevant legislation, the Police Act 1997, ECRCs give details of convictions and cautions (with certain limitations not relevant here). Section 113B(4) of the Act provides further that:
"(4) Before issuing an enhanced criminal record certificate the Secretary of State must request the chief officer of every relevant police force to provide any information which, in the chief officer's opinion –
(a) might be relevant for the purpose described in the statement under subsection (2) and
(b) ought to be included in the certificate."
It was pursuant to this provision that material relating to the rape charge and the acquittal was provided by the First Respondent and was included in the ECRC.
In judicial review proceedings issued on 21 December 2012 the appellant challenged the lawfulness of the reference to the allegation and to the acquittal in the second certificate. The appellant argues that the issue of an ECRC in this form infringed his rights under Articles 6.2 (presumption of innocence) and 8 (right to respect for private life) of the European Convention on Human Rights and Fundamental Freedoms ("the Convention"). His claim was dismissed by an order of 5 September 2013 made by HH Judge Raynor QC, sitting a Judge of the High Court at Manchester. After hearing the appellant in person, Lady Justice Gloster granted him permission to appeal to this court on 30 July 2014.
Background Facts
The appellant is a qualified teacher who, at the material time giving rise to the criminal charge, was working as a taxi driver. It was alleged by the complainant, who made the rape allegation, that at about 1 a.m. on the morning of 4 November 2009 she was a passenger in a taxi driven by the appellant. That fact was not disputed by the appellant; he accepted that he had driven the complainant as a fare paying passenger on the occasion in question. She alleged that he had driven her to a secluded place and had raped her. She said he had then driven her to her home and had "sped off". The appellant denied the allegation of rape. It is not necessary to say more about the details of the evidence at the Crown Court, which are set out more fully in the judgment of Judge Raynor, as derived by him from Judge Rumbelow's summing-up to the jury in the Crown Court trial. It suffices to say that there was no forensic evidence either to support or to undermine the allegation made. The ultimate issue in the Crown Court was simply whether, on the opposing oral evidence of the complainant and of the appellant, the prosecution had made the jury sure of the appellant's guilt. From the jury's verdict, it is clear that they had not done so.
On 22 March 2011, the Second Respondent issued the first ECRC. It referred to the acquittal in the same terms as the second ECRC which became the subject of challenge in these proceedings. The appellant, then acting in person without legal representation, complained to the police about the matter. He said this in his complaint:
"There is no conviction. The jury rejected the complainant's evidence and the disclosure of the allegation is so prejudicial as to prevent me from being fairly considered for employment. Even if the disclosure of the allegation was possibly appropriate the disclosure fails to provide a full account of the evidence given and how the jury came to its conclusion. It is wrong, unfair and grossly prejudicial [that] I should have to defend myself every time I apply for employment after the jury have ruled I am an innocent man".
The appellant appealed against the Chief Constable's decision to provide the information under the internal procedures of the Greater Manchester Police. The appeal was rejected after consideration of the result of a review of the case conducted by a civilian reviewing officer employed by the force.
The reviewing officer concluded that the disputed information was relevant and that it ought to be included in the ECRC. Her reasoning, which was the subject of much argument before the judge and before us, was as follows:
"I believe the information is of sufficient quality to pass the required test because:
• There was sufficient evidence for the CPS to authorise the applicant being charged with Rape, indicating that they believed there to be a realistic prospect of conviction. If the CPS had not believed the allegation, they would not have authorised the charge. This indicates that on the balance of probabilities the allegation was more likely to be true than false.
• Although the applicant was found not guilty by the jury, the test for criminal conviction is beyond all reasonable doubt, which is higher than that required for CRB disclosure purposes. Therefore the applicant's acquittal does not prove that he was innocent, or even that the jury thought he was innocent, just that he could not be proved guilty beyond all reasonable doubt.
• In the applicant's letter to the IGU he states that another male's DNA was found on victim's underwear. Whilst this is true, the expert forensic witness stated that this could have been there for a while, and could have been from the last time the victim stated she had sex, 6 weeks prior, dependent on the number of times the item had been washed since then. The expert was clear that the presence of another male's sperm DNA on the victim's underwear did not evidence that she had had sex with someone else on the evening of the incident.
• The forensic evidence regarding the alleged sexual intercourse between the application [sic] and the victim was inconclusive, which was to be expected as the victim alleged the applicant had used a condom, thereby making the presence of forensic evidence less likely. Therefore this does not support either the applicant or the victim, but cannot be used to cast doubt of the victim's account.
• The medical evidence revealed vaginal injuries consistent with penetration, which were up to three days old. This was consistent with the victim's account, and although not conclusive evidence, is in her favour.
• In the applicant's letter to the IGU he claims that the judge stated there were many inconsistencies in the female's account. Having read the judge's summing up, he states that "there has been legitimate criticism from the defence about some of the details of the accuracy of [the victim's] evidence", however he goes on to indicate that he believes these details are not important. "I suggest that the big picture may be what matters". The inaccuracies in the victim's evidence are not regarding the actual allegation, but regarding the circumstances leading up to the alleged incident, eg the time she got into the taxi, whose decision it was tat [sic] she was not staying at her friend's house, and the precise conversation with the applicant. As the victim was intoxicated at the time (by her own admission and that of the applicant), it is entirely plausible that she may have forgotten some of the less important aspects of the evening, and therefore this does not necessarily cast doubt on her account.
• Although the victim was also unclear as to the duration of the alleged intercourse, as she states she was in shock, and she was intoxicated, this again does not make her account implausible.
• The court heard...
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