Clearing your name: the devil is in the detail

Statistically, most people charged with criminal offences are guilty as charged. In fact, the vast majority either plead ‘guilty’ of their own volition, or are found guilty at trial and are sentenced.

Quite apart from the sentencing, there are rules about how long those convictions remain ‘live’ (meaning they must be disclosed to potential employers). After a period and depending on the sentence, most convictions become ‘spent’ and no longer have to be disclosed. These rehabilitation periods are governed by the Rehabilitation of Offenders Act 1974.

There is also an enhanced category of roles which require an Enhanced Criminal Record Certificate (ECRC). This is designed to assess suitability for admission to certain professions such as teachers, doctors, social workers, and also to hold certain licences or permits, or to work with children or vulnerable adults. The need for ECRCs covers more working scenarios than many people realise.

In this way, getting the ‘all clear’ on an ECRC is more complicated. Practically, it means that the police decide what is written on the certificate, having reviewed all information and not simply criminal convictions or cautions. The potential employer will read it before deciding whether to offer the person a job. This can effect a person who was never found guilty of anything.

In a leading decision of the Supreme Court in AR, R (on the application of) v Chief Constable of Greater Manchester Police & Anor [2018] UKSC 47 on 30 July, a man identified as AR appealed against the content of his ECRC. AR was a qualified teacher who was now applying to become a lecturer. His ECRC certificate referred to the fact that in 2011 he had been tried, and found not guilty, of rape. The allegation had been made by a 17-year-old while AR had been working as a taxi driver. At the trial his defence case had been that no sexual contact had taken place at all. Indeed, there was no forensic evidence in support of any sexual contact. It had been very much a “he-said she-said” trial which turned on the credibility of both parties (as an aside, we discuss the dangers of this sort of trial here).

AR was found “not guilty” by the jury in January 2011. In March 2011, his ECRC referred to the matter including the fact that he was acquitted. This meant any potential employer applying for an ‘enhanced’ job could see it. AR challenged it on this basis:-

“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 of the disclosure of the allegation was possibly appropriate 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 defence myself every time I apply for employment after the jury have ruled I am an innocent man”

Despite this, Greater Manchester Police upheld disclosure of the information on the ECRC because AR’s proposed role as a lecturer would put him in contact with vulnerable females of a similar age to his alleged victim, and although he was acquitted, the Crown Prosecution Service had authorised a prosecution. They pointed out that the criminal burden of proof meant that just because AR was acquitted, that did not mean the jury necessarily thought he was innocent. They felt that it was important that a potential employer was made aware of the case.

In essence, Lord Carnwath repeated this reasoning in the Supreme Court judgment:-

“In principle, it (the verdict) leaves open the possibility that the allegation was true, and the risks associated with that”

It seems the stain of suspicion will now remain on AR’s record indefinitely. It remains to be seen whether he will appeal to the European Court of Human Rights.

Should the jury be given three options?

Writing in the Times (£) on 2 August, solicitor Nick Freeman argues that the solution is to give the jury three possible verdicts: “Guilty”, “Not Guilty”, and “Not Proven”. He suggests that “Not Proven” would signify the jury could not be sure of defendant’s guilt and hence a suspicion about the defendant could justifiably linger. The verdict of “Not Guilty” should, Mr Freeman suggests, be reserved for where the jury make an unequivocal finding of innocence. Here, presumably there could be no lingering suspicions, and the ECRC must remain clear.

Whilst such a system is superficially attractive in that it forces the verdict to provide clarity, it complicates the question for the jury, who are 12 lay people typically with no prior experience of law or procedure. Having three potential verdicts will lengthen their deliberations and lead to more split or hung juries. For example, deliberations may kick off with this scenario: Four say “Guilty”, four say “Not Proven” one says “Not Guilty”, and three are either undecided, weren't paying attention, or don’t understand the Judge’s directions.

Secondly, the danger for genuinely innocent defendants here might be that the jury finds the case “Not Proven”, rather than saying “Not Guilty”. So the stain on one's character would be made permanent. This could itself amount to a miscarriage of justice which, presumably, might motivate a whole new raft of appeals on the basis that it was only a defect in the trial process that robbed the defendant of his gold standard "Not Guilty" verdict.

Lastly, what would be the status of cases dropped or discontinued by the CPS? Prosecutions can be stopped for a multitude of reasons, both legal and practical. How could those outcomes be fitted into one of these above three options?

Why not legislate so that only convictions and police cautions are disclosed on an ECRC?

A simpler solution is to legislate so that nothing short of criminal convictions or police cautions (these necessitate a confession) can be allowed within the ECRC disclosure. However, surely many employers such as a doctor’s surgery, a headteacher or a youth club might well want to know whether the candidate has, for example:-

• Stood trial twice for the offence of rape, but both times the jury could not agree on a verdict and so the Prosecution had to ‘offer no evidence’
• Been accused of murdering their mother, said ‘no comment’ in police interview and was never charged due to insufficient evidence, or
• Been linked to a terrorist call and placed under surveillance. Not prosecuted purely for covert       operational reasons.

It would take an ardent libertarian stance to say that all such candidates should be free to apply for any job, entirely unencumbered by their history.

Does an innocent suspect / wrongly accused person have an alternative solution?

There are also powers under the Protection of Freedoms Act 2012 to apply to the Chief of Police for the deletion of their Police National Computer record. Within the criteria for this, “No Crime”, “Alibi” and “Public Interest” are all grounds for getting the record deleted. The Chief Constable needs to be satisfied on the balance of probabilities, the lower civil standard. These powers are often overlooked, and will perhaps now become far more important. A police refusal to delete could then also be the subject of a judicial review, of course.

In this way, a preferable option is to apply for outright deletion under the Protection of Freedoms Act 2012, although the required criteria will prove difficult in cases that reached trial and turned on the credibility of witnesses.

Trying to influence the disclosure wording

In terms of Enhanced Criminal Records Certificate disclosure for those not convicted, ultimately the position now is that police retain the right to place entries on it. For the genuinely innocent person who feels affronted and compromised by this, they should still be trying to influence the wording placed therein. They should review their defence solicitor’s file again to see whether the police might add to what is written there. Obviously, the more thoroughly that defence material was investigated, prepared and maintained, the better.

For example, if there were good merits to the defendant’s explanation, or weak identification evidence, or clear evidence of self-defence, there is no reason why police cannot be obliged to add these details onto the ECRC. Also, if the trial judge expressed disquiet about the strength of the prosecution case, or if the jury took just 15 minutes to acquit, why not ask that these facts be added onto the ECRC too? Again, a thorough solicitors’ file recording all this helpful information might be key here. The devil is indeed in the detail.

At Brett Wilson LLP, we can assist in defending allegations of crime including gathering defence evidence, in challenging proposed entries on enhanced criminal records certificates, and also in application to delete matters from the Police National Computer altogether. For more information please contact us here.