About this case:

• Court:
  Court of Appeal
• Judge:
  Sir Declan Morgan

The court said that despite the fact that there were procedural failings by the Police Service in forming the decision to disclose the information, it was proportionate to disclose the information. The safety of children was a “pressing social need” which justified the trial judge’s decision to allow the disclosure. However, the court emphasised that prospective employers were required to apply the statutory scheme fairly and that it did not automatically follow that the disclosure should preclude KC from employment.

Background

The applicant was accused of 11 counts of rape, gross indecency on a child and sexual activity with a child arising out of an alleged sexual relationship with a girl aged between 12 and 14. The applicant was aged between 17 and 19 at the time. Following a trial in 2013, the applicant was unanimously acquitted in the Belfast Crown Court. It transpired that the complainant gave inconsistent and contradictory evidence in the case.

When KC subsequently applied for the school assistant and community volunteer roles in 2014, he was required to produce a ECRC. While the school principal was supportive of KC’s application, he said that the ECRC disclosure would preclude him from employment.

Under Part V of the Police Act 1997, the Department of Justice may request an ECRC from a relevant chief officer. The ECRC should contain any disclosure that the chief officer believes to be relevant or ought to be included.

An Assistant Chief Constable and, later, a Superintendent considered the appropriate disclosure in KC’s case. The officers had some information about the rape trial, such as PACE interviews, but their file did not contain any substantial information about the trial or why KC was acquitted. The Public Prosecution Service failed to provide further information on request. The Superintendent also contacted an investigating officer from the criminal trial to seek information about the case.

During this investigation, the applicant had exchanged correspondence with the Superintendent, claiming that the proposed disclosures contained unnecessary information and were generally not fairly worded. He argued that disclosure should not be made and issued judicial review proceedings in 2015 seeking to prevent this.

The trial judge said that the principal questions were whether the Superintendent had given lawful consideration of the proposed ECRC and whether the decision to disclose the information was proportionate. The judge was critical that the Superintendent had not informed himself of the reasons for the unanimous acquittal and that the PPS was not properly pursued for this information. Further, the information from the investigating officer should have been treated with more caution based on its source. However, the judge concluded that the Superintendent had reasonably believed that the allegations were accurate and that the disclosure was proportionate in the context of the overall evidence of the case. The decision was appealed by KC to the Court of Appeal.

Court of Appeal

Yesterday, the three-judge panel dismissed the appeal. The court began by outlining the relevant principles on disclosures under the 1997 Act which were contained in R (L) v Commissioner of Police for the Metropolis [2010] 1 AC 410 and R (R) v Chief Constable of Greater Manchester Police [2018] 1 WLR 4079. In particular, it was held that the statutory test was to identify and disclose relevant information rather than make a separate assessment of the evidence from the trial. As such, a proportionality assessment did not require a detailed analysis of the evidence from the criminal case. Further, the court noted that criminal cases are matters of public record and potential employers may want to ask further questions about a criminal charge.

The court accepted that the applicant’s private life would be affected by the disclosure and that there was significant public interest in rehabilitation of offenders in society. However, the court said that this alone did not mean the disclosure was unfair. While there were procedural failings in the Superintendent’s investigation, the applicant had opportunities to make representations. It was within the trial judge’s discretion to conclude that the disclosure was necessary to protect children and the court refused to interfere with this finding.

The court also noted that the statutory scheme did not automatically prohibit the applicant from working with children. The court emphasised that it was incumbent on a prospective employer to assess the impact of an ECRC and an employer should engage in its own enquiry into the information contained in an ECRC. The assumption that a negative ECRC amounted to a “killer blow” to the applicant’s employment was a misunderstanding of the statutory scheme. The information contained in an ECRC is not in itself a determination of unsuitability, the court said.

Conclusion

The court dismissed the appeal on the basis that the trial judge was entitled find that the disclosure was fair and proportionate notwithstanding the procedural issues in the decision. Further, the court emphasised the need for procedural fairness from prospective employers to make their own decisions on an applicant and to not assume that an ECRC would be determinative of a person’s employment.