In R (on the application of AR) v Chief Constable of Greater Manchester Police and another, the Supreme Court has upheld a judgment of the Court of Appeal that the disclosure of an acquittal for rape in an enhanced Disclosure and Barring Service (DBS) check for a lecturer post was not a breach of the right to respect for a private and family life. We reported on the Court of Appeal's judgment in this case in our July 2016 bulletin.

The applicant in this case was a qualified teacher who applied for a lecturer post. The educational institution requested an enhanced DBS check. The applicant was working as a taxi driver the time of his application. He had been prosecuted for the alleged rape of a 17 year old woman while she was in his taxi but was acquitted two months before the DBS check was requested.

Where a job entails working with children or vulnerable adults, enhanced disclosure is available. This will include disclosure of spent and unspent convictions and cautions, police reprimands and warnings and other "relevant police information". This is information which a chief officer of police reasonably believes to be relevant and which ought to be disclosed given the purpose for which the DBS check is being made. The fact of the applicant's acquittal in this case was disclosed by the police as "relevant police information" in the enhanced DBS check.

The officer making the decision disclosed the acquittal on the grounds that: the rape allegation was more likely to be true than false on the balance of probabilities given that the CPS had decided to prosecute; the acquittal was recent; and the allegations were very serious in nature. She decided that the potential risk to vulnerable people (including students of a similar age to the alleged victim) outweighed the impact on the teacher.

The teacher applied for judicial review of the decision to disclose and claimed that his right to be presumed innocent under Article 6 of the European Convention on Human Rights (ECHR) and his right to respect for his private life under Article 8 of the ECHR had been breached. Both of these human rights can be interfered with by a public authority in certain circumstances.

The High Court found that neither of these human rights had been breached. It considered that the balancing exercise necessary to decide whether disclosure is proportionate in the circumstances had been correctly carried out.

Upholding this decision, the Court of Appeal stated that disclosing an acquittal did not contradict the effect of that acquittal, in other words it did not suggest that the applicant was guilty of the criminal offence of rape. The Court of Appeal held that the difficult balance

between protecting vulnerable people and interfering with the right to respect for privacy had been correctly considered by the High Court.

In this recent decision, the Supreme Court has upheld the Court of Appeal's decision. The Supreme Court held that the lower courts had been entitled to find that the disclosure had not breached the right to privacy. In this case, the impact on the teacher's employment prospects had been weighed against the pressing social need which lies behind the enhanced DBS process, that is the potential risk to children and vulnerable adults.

However, Lord Carnwath commented that the guidance on what should and should not be disclosed as other relevant information in an enhanced DBS check is insufficient, particularly in cases where the relevant information is an acquittal for a serious offence of this nature. It is possible that his comments will lead to a review of the guidance in this area.

This case confirms the current position that information about acquittals can be included in an enhanced DBS check where, on the assessment of the police, the information is relevant and ought on balance to be disclosed. This does not mean that acquittals will always be disclosed (although, of course, the criminal proceedings will be a matter of public record in any event).

Where the allegations are less serious, more historic or considered not to be relevant to the role, the police may take the decision not to disclose.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.