Jenni Richards QC and Catherine Dobson have successfully defended a human rights challenge in the Supreme Court to the legality of an Enhanced Criminal Record Certificate.
The Supreme Court has just delivered judgment in R (AR) v Chief Constable of Greater Manchester Police  UKSC 47. The case concerned the legality of an Enhanced Criminal Record Certificate issued by the Chief Constable in respect of AR under section 113B of the Police Act 1997 in connection with an application for a job as a lecturer. The certificate gave details of a rape charge for which AR had been tried and acquitted. The main issue was whether the disclosure constituted a justified and proportionate interference with his right to respect for private and family life under article 8 of the European Convention of Human Rights. The Supreme Court unanimously held that the disclosure of the information in question was proportionate, striking an appropriate balance between the potential risks to the vulnerable and the interference with AR’s rights under article 8.
The judgment is of broader interest as it contains important clarification as to the role of the appellate courts in proportionality challenges under the Convention. The Supreme Court found that there was no obligation for the Court of Appeal to make its own fresh assessment of proportionality. It was sufficient for the Court of Appeal to consider whether there was any error or flaw in the first instance judge’s treatment of proportionality. The Supreme Court emphasised, however, that it was not right to limit intervention to a “significant error of principle”, as had been suggested in earlier cases. The judge’s decision on proportionality might be wrong, not because of some specific error of principle, but because of an identifiable flaw in the judge’s reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion.
Jenni Richards QC and Catherine Dobson acted on behalf of the Chief Constable of Greater Manchester Police.
To view the full judgment, please click here.