CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 1 juillet 2025

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THE UNITED KINGDOM (Application no. 6033/19)   JUDGMENT   Art 8 • Private life • Disclosure by the police, in the context of enhanced employment vetting, of information that the applicant had been charged with rape and acquitted at trial, with a description of the circumstances of the alleged offence • No statutory guidance to assist chief police officers when exercising their discretion • Applicant could not reasonably foresee impugned measure • Sensitivity of such disclosure required comprehensive general guidance indicating scope of discretion and manner of exercise • No guidance at the relevant time to assist employers in how to approach disclosed information of such nature • Applicant not afforded opportunity to make representations before impugned disclosure made • No possibility of independent review of disclosure • Excessively broad discretion for the authorities in application of statutory disclosure provisions in force at the relevant time • Insufficient safeguards to afford adequate legal protection against arbitrary exercise of that discretion • Impugned disclosure not in accordance with the law   Prepared by the Registry. Does not bind the Court.   STRASBOURG 1 July 2025   FINAL   01/10/2025   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of A.R. v. the United Kingdom, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Saadet Yüksel,   Tim Eicke,   Jovan Ilievski,   Gediminas Sagatys,   Stéphane Pisani,   Juha Lavapuro , judges , and Hasan Bakırcı, Section Registrar, Having regard to: the application (no.   6033/19) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr A.R. (“the applicant”), on 21   January 2019; the decision to give notice of the application to the United Kingdom Government (“the Government”); the decision not to have the applicant’s name disclosed; the parties’ observations; Having deliberated in private on 10   June 2025, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application concerns the 2011 and 2012 disclosure by the police, in the context of enhanced employment vetting, of information that the applicant had been charged with rape and had subsequently been acquitted at trial, and a description of the circumstances of the alleged offence. THE FACTS 2 .     The applicant was born in 1978 and lives in Rochdale. He was granted legal aid and was represented by Mr M.J. Pemberton, a lawyer practising in Wigan. 3.     The Government were represented by their Agent, Mr S. Linehan, of the Foreign, Commonwealth and Development Office. 4.     The facts of the case may be summarised as follows. BACKGROUND FACTS 5.     The applicant has a teaching qualification but at the relevant time was working as a taxi driver. In March 2010 he was charged with the rape of a 17 ‑ year ‑ old woman who had been a passenger in his taxi. His defence was that there had never been any sexual contact between him and the alleged victim. There was no forensic evidence linking him to her. On 21   January 2011 the applicant was acquitted of the charge at trial. The 2011 ECRC 6 .     On 22 March 2011 an enhanced criminal record certificate (“ECRC”) was issued by the Criminal Records Bureau (“CRB”) in connection with the applicant’s application for a job as a lecturer at a college. At the relevant time, an ECRC issued under section 113B of the Police Act 1997 (“the 1997 Act” – see paragraph 33 below) contained details of all previous convictions and cautions as well as “other relevant information disclosed at the Chief Police Officer’s discretion” (sometimes called “soft intelligence”). The applicant had no criminal convictions or cautions. However, in the area of the applicant’s ECRC reserved for other information, details of the applicant’s charge for and subsequent acquittal of rape were disclosed in the following terms: “On 4/11/09 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 conveyed her to a secluded location where he forcibly had sex with her without her consent. [A.R.] 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 [the] Crown Court on 21/01/11 where he was found not guilty and the case was discharged.” 7 .     On 20 April 2011 the applicant objected to the disclosure, in the following terms: “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.” 8.     The decision to disclose the information was upheld. 9.     On 2 June 2011 the applicant lodged an administrative appeal with the police force concerned, pointing out the impact that the disclosure would have on his future career as a qualified teacher. His appeal was rejected. The panel took account of a memorandum prepared in March 2012 by a reviewing officer and signed by the chief police officer’s delegate, Inspector K., who had authorised the initial disclosure. The reviewing officer expressed the view that the information disclosed was relevant and that it ought to be included on an ECRC. In answer to a question as to the relevance of the information, she noted that the position of lecturer would give the opportunity for the applicant to befriend vulnerable females of a similar age to “the victim”, with the risk that he might use his role “to abuse his trust and authority and commit similar offences”. 10.     In answer to the question “Do you believe the information to be of sufficient quality to pass the test”, she wrote: “I believe the information is of sufficient quality to pass the required test because: There was sufficient evidence for the CPS [Crown Prosecution Service] 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 ... he states that another male’s DNA was found on the victim’s underwear ... 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 applicant 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 ... 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, e.g. the time she got into the taxi, whose decision it was that 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 evidence of the victim’s distress after the incident from a number of witnesses, which would seem to support her account. Although the applicant’s account was consistent which is in his favour, the judge rightly states that this does not negate the possibility of him lying as ‘of course a man may lie consistently’. There is no indication of the victim having any motive to make a false allegation, and it seems unlikely that she would wish to go through the emotional trauma of medical and forensic examinations, intimate questions about her sexual activity, and the court case, to make a malicious allegation without a strong motive for doing this. Although the ... review has raised that the acquittal indicates that the allegation might not be true, the legislation and guidance is clear that allegations that might not be true can be disclosed, as the test required for CRB disclosure purposes is lower than this. Due to the above, I believe that the information is more likely to be true than false and is not lacking in substance, and it is reasonable to believe that the information might be true, and therefore it passes the required test.” 11.     The reviewing officer concluded: “I believe disclosure is both reasonable and proportionate because: In my opinion, as explained above, the information is clearly relevant and passes the required test. The alleged incident is relatively recent as it occurred in Nov 2009, less than 3   years ago. Although this is an isolated incident, it is very serious as it relates to an alleged rape using force, by a stranger. It is not a minor incident. If the applicant repeats this alleged behavior in the [position applied for], vulnerable people could be caused serious emotional and physical harm. Although disclosure of this incident will have an impact on the applicant’s human rights as he may fail to gain employment in his chosen profession, this would not prevent the applicant from gaining employment in another profession which does not require an enhanced CRB check, and therefore it would not prevent him from gaining employment to support his family. Disclosure of this allegation will not prevent the applicant from gaining all forms of employment indefinitely. I believe that it is important that the [potential employer/registered body] are made aware of this allegation, in order that they can make an informed recruitment decision and act to safeguard vulnerable people. Due to the above, I believe the potential risk to vulnerable people outweighs the effect of disclosure on the applicant’s human rights in this instance, and therefore the information ought to be disclosed.” 12.     The memorandum ended with a comment that the disclosure text was “accurate, balanced, and not excessive ... There is no intimation of the applicant’s guilt or otherwise in the text”.   The 2012 ECRC 13 .     On 28 March 2012 a further ECRC was issued by the CRB after the applicant applied for a licence to work as a private hire driver. The ECRC contained the same information as had been included on the ECRC issued in March 2011 (see paragraph 6 above). The same reviewing officer had considered the matter and had reached the same conclusion, for exactly the same reasons as were given in respect of the March 2011 ECRC. That review material had also been considered by a senior police officer who considered that disclosure was reasonable and proportionate for the following reasons: “... I consider that this is relevant to the post applied for as the applicant may present a risk of harm to the children/vulnerable adults with whom they may come into contact whilst again working as a private hire driver. In considering whether the information ought to be disclosed, I have taken into account the gravity of the material involved, the reliability of the information on which it is based, the relevance to the post applied for, the period of time elapsed since the events(s) occurred, together with the likely impact on the applicant of disclosing the material. I have also taken into account the details of the matters as reported to the police, together with the considerations of the Crown Prosecution Service ... I consider this is information that is relevant to the post applied for and ought to be disclosed to be considered by the registered body concerned. I believe this disclosure is factually correct, reasonable and proportionate, and that the wording is fair and reflective of the information held by [the police]. Having considered the human rights of all relevant parties and the potential risks as outlined above with which I fully agree I believe the disclosure is necessary and therefore authorise this disclosure as approved information.” 14.     On 22 June 2012 the applicant objected to the disclosure in similar terms to his earlier letter (see paragraph 7 above). He complained that it would “affect the rest of my life and future as nobody will employ me to teach with this disclosed on my [ECRC]”. The disclosure was confirmed by the CRB on 7 August 2012. 15.     In December 2012, the Disclosure and Barring Service (“DBS”) took over the functions of the CRB. DOMESTIC PROCEEDINGS The High Court 16 .     In December 2012, the applicant applied for permission to seek judicial review of the decision of the chief police officer to disclose the information concerning the charge and acquittal of rape, invoking his rights under Articles 6 § 2 and 8 of the Convention and relying in particular on, respectively, Allen v. the United Kingdom ([GC], no. 25424/09, ECHR 2013) and M.M. v. the United Kingdom (no. 24029/07, 13 November 2012). He was granted permission but on 5   September 2013 the High Court rejected his claim. The judge considered that Article 8 was clearly engaged in the case but found that the disclosure was reasonable, proportionate and no more than necessary to secure the objective of protecting young and vulnerable persons. His reasons were, in so far as relevant, as follows: “40.     ... a)     Although the review proceeded on a false premise (namely that the decision to charge indicated that on the balance of probabilities the allegation was more likely to be true than false) it is clear on my reading of the transcript of the forensic evidence and summing up that the same were carefully considered in the review, and in my judgment the comments on the forensic and medical evidence, the complainant’s inconsistencies and the consistency of the claimant were fair. The complainant’s evidence derived some support from the medical evidence and her distress, and no criticism has been made of the comments regarding the lack of any indication of motive to make a false allegation and willingness to suffer emotional trauma. ... c)     The fact of acquittal was recognised, and in my view it was right to comment that nothing could be assumed from the fact of acquittal other than that the jury was not satisfied beyond reasonable doubt of guilt. d)     Whilst I do not consider that a firm or reliable conclusion as to whether the complainant’s account is more likely to be true than false can be gathered from the transcript alone, I am quite satisfied that the Chief Constable was fully entitled to conclude that it was ‘not lacking in substance, and that it [was] reasonable to believe that the information might be true’. In my judgment that is a sufficient basis for disclosure (subject to the issue of proportionality), given the other factors reasonably relied upon by the Chief Constable as justifying disclosure as stated in the review, such as the seriousness of the alleged offence, its relevance to the position applied for and its comparatively recent occurrence. e)     I do not accept that the March 2012 disclosure decision is invalidated or rendered unlawful by any failure of procedure, or that the claimant has in the event suffered any injustice as a result of the failure to consult before making that decision. When making that decision, account was taken of his previous complaints regarding the March 2011 disclosure, there had been no legal challenge to that disclosure and the Chief Constable in my view was entitled to proceed upon the basis that the claimant’s complaints were as previously stated. In the event it is plain that the police in the March 2012 review anticipated and considered the matters that the claimant later raised in his letter of 22 June 2012 and ... no suggestion has been made in these proceedings of any further substantive matters that the claimant would have wished to raise. f)     Account was taken of the claimant’s employment difficulties resulting from the ECRC, Inspector [K.] having taken into account the likely impact on the claimant of disclosing the material. In my judgment, the Chief Constable was justified in concluding that the potential risk to the vulnerable if the claimant obtained a private hire driver’s licence and had acted as alleged by the complainant outweighed the detriments that would be caused to him by the disclosure and the interference with his article 8 rights and that disclosure were both justified and proportionate. I am satisfied that the disclosure in the March 2012 ECRC Certificate was no more than was necessary to meet the pressing social need for children and vulnerable adults to be protected and that the balance between that need and respect for the claimant’s article 8 rights was struck in the right place.” 17.     The judge found it unnecessary to determine whether Article   6 §   2 was applicable to the issuing of an ECRC since in any event he considered that the disclosure did not breach the presumption of innocence. The Court of Appeal 18.     The applicant was granted permission to appeal. His appeal was dismissed on 10 June 2016. 19.     In respect of his argument under Article 6 § 2, the court observed that the statement for onward transmission on the ECRC was extremely limited: there was no aspersion cast at all upon the correctness of the acquittal and it had not been suggested in the certificate that the applicant was guilty of the offence of which he had been acquitted. The court further noted that the issue in the case was whether to disclose the information as a measure of public protection; there was no procedural link at all to the previous criminal proceedings themselves. There was no suggestion that the jury had been wrong to acquit on the evidence and on the standard of proof which they had to apply. The court therefore considered that there was no “undermining” of the acquittal. 20.     As to Article 8, the court found no breach of the right to respect for private life. The judge delivering the court’s ruling summarised the justification for the disclosure advanced by the police as follows: “33.     [Counsel for the police] argued that the allegations were recent, very serious and had been thought by the police to be reliable; these points had to be balanced by them with the fact of the jury acquittal. In carrying out the proportionality exercise, therefore, the police had to take into account that they were acting under a statute designed for the protection of the vulnerable; an evaluative judgment was required; it was highly relevant that the information related to an allegation made against the appellant as a taxi driver and he was seeking to take up that very same employment; risk to the vulnerable was acute; in deciding upon disclosure no single factor could dominate; it was not incumbent on the police to conduct a ‘mini-trial’ or to decide for themselves the question of whether the acts had been committed or not – that was not feasible; the acquittal was but one factor in the necessary evaluation.” 21.     Reviewing the first-instance decision, the judge said: “75.     I do not find that [the first instance judge] made any error of principle in his judgment in this case, let alone any significant error. He had sufficient of the relevant authorities well in mind ... He proceeded to consider for himself the various factors material to the proportionality of the decision to disclose the information, recognising as he did the flaw in the reviewing officer’s reasoning in placing some significant weight on the initial decision to prosecute. The judge recognised that a balance had to be struck between the potential risk to the vulnerable if the appellant obtained the post for which he was applying and the interference with his rights under Article 8 caused by the detriment that he would suffer by the disclosure. The judge saw that the balance was a difficult one to strike and correctly directed himself to the material considerations. 76.     The points made by [counsel for the police], which I have summarised in paragraph 33 above, were to my mind valid elements of the decision which the [police] had to take, but I must not be drawn into re-making that decision. However, it seems to me that those points were in essence the same as the ones that persuaded [the first-instance judge] that the [police’s] decision was proportionate on the facts of this case. I can see no significant error of principle in that and can see no reason to disagree with the assessment of proportionality that he made.” The Supreme Court 22 .     The applicant applied to the Supreme Court for permission to appeal, reiterating his arguments under Articles 6 § 2 and 8 of the Convention. On   2   November 2016 permission was granted in respect of the Article   8 complaint only. 23 .     On 30 July 2018 the Supreme Court dismissed the appeal. Lord   Carnwath, giving the judgment of the court, explained: “30.     Following the initial hearing the court sought more detailed information about the guidance available both to chief officers and to potential employers as to the operation of the ECRC system, and also any evidence about its impact in practice on those affected. We were interested in particular to see what advice was or is given as to the test for the reliability of information, and what if anything is said about disclosures following a trial and acquittal. The resulting picture is not entirely clear or consistent.” 24.     He set out the statutory framework for disclosure at the relevant time as follows: “31.     ... [T]he Mason review recommended a stricter test of relevance, but it contained no discussion of the test of reliability. It contained some discussion of the ECRC system, with examples, but no reference was made to the issue of disclosure following trial and acquittal. 32.     At the time of the decisions with which this appeal is concerned there was no statutory guidance regarding the application of the ECRC regime. Section 113B(4A), which came into force on 10 September 2012, requires the chief officer to have regard to guidance published by the Secretary of State. The current guidance is the Statutory Disclosure Guidance (2nd ed, August 2015). Under the heading ‘Information should be sufficiently credible’, it states: “This will always be a matter of judgement, but the starting point will be to consider whether the information is from a credible source. ... In particular, allegations should not be included without taking reasonable steps to ascertain whether they are more likely than not to be true .” (para 18, emphasis added) The same wording appeared in a version available in some form in July 2012 ... It seems likely ... that [the ECRC’s] use of the expression ‘more likely to be true than not’ reflected some equivalent guidance available at the time, but the actual source has not been identified. 33.     The 2015 guidance (like the 2012 version) also addresses the issue whether the information ‘ought to be included in the certificate’, and that of proportionality: whether disclosure pursues ‘a legitimate aim’, and if so whether it is proportionate, ‘weighing factors underpinning relevancy, such as seriousness, currency and credibility against any potential interference with privacy’ (para 22). Nowhere does the statutory guidance address the question of disclosure of criminal allegations following a trial and acquittal. 34.     There was at the material time non-statutory guidance in the form of a so-called Quality Assurance Framework (‘QAF’). This was described by [counsel] for the Secretary of State, as a ‘non-statutory suite of documents and processes’, including ‘specific documents concerning all aspects of the process’. [Counsel] for the Chief Constable told the court that it had been originally developed between ACPO (the Association of Chief Police Officers) and the CRB (Criminal Records Bureau) to provide ‘a standardised framework under which to process, consider and disclose police information for Enhanced Criminal Records and ISA registration checks’. She told us that the standard forms used in the present case were part of the then current QAF (Version 7). She referred us, for example, to one of the QAF documents, ‘GD2 Disclosure Text Good Practice Guidance’, in which the purposes of disclosure were said to be to ‘convey non-conviction information that may identify a potential risk to the vulnerable.’ Among the listed criteria were: ‘3.     It should not include any unnecessary detail or information; only relay the relevant facts. 4.     The disclosure text should be balanced and neutral in tone, offering no opinion, assumption or supposition ...’ Again we were not referred to any specific reference to the treatment of acquittals. 35.     [Counsel for the Secretary of State] referred us to a more recent document issued by the DBS: ‘Quality Assurance Framework – an applicant’s introduction to the decision-making process for Enhanced Disclosure and Barring Service checks’ (March   2014). It discusses the ‘three primary tests’, described as tests of ‘Relevance’, ‘Truth/Substantiation’ and ‘Proportionality’. Under the heading ‘Substantiation’ (p 9): ‘The weight of evidence required is set at a reasonably low level. Some have argued that a higher test, one of a balance of probabilities should be used. Case law, however, asks for consideration of whether there are untoward circumstances that lead the decision-maker to believe that it is unlikely that the information is true or that the information is so without substance as to make it unlikely to be true . A reasonable decision-maker would not disclose the existence of allegations without first taking reasonable steps to ascertain whether they might be true ...’ (Emphasis added) This, it will be seen, is a rather different emphasis from the statutory guidance: reasonable steps to ascertain whether the allegations ‘might be true’, rather than whether they are ‘more likely to be true than not.’ The document goes on to make clear that the disclosure may include ‘information of matters that did not result in a conviction, a prosecution or even a charge – as long as they pass the tests within QAF’. One reason is said to be the need to protect from harm ‘children and vulnerable adults, both of whom, sadly, are the least likely to make good witnesses’, and ‘less likely to present themselves as credible or believable when set against their abusers’. Accordingly, it is said: ‘So, there may not be sufficient evidence to secure a prosecution or even get a case to court (remember, the tests in court are far higher than those required for disclosure) but there may be enough for police to believe that someone may pose a real risk .’ (Emphasis added) 36.     This document is also of interest since it contains what appears to be the only specific reference to disclosures following a ‘not guilty’ verdict in a criminal trial. Under the heading ‘What kind of information can be considered for disclosure?’, it includes ‘incidents for which individuals were found “Not Guilty” in a court of law (in certain circumstances)’ ...” 25.     Lord Carnwath next summarised the guidance for employers as follows: “37.     As regards guidance to employers on the use of information disclosed in ECRCs, [counsel for the Secretary of State] drew attention to the Secretary of State’s statutory duty to publish a ‘Code of Practice’ in connection with the use of information provided to registered persons (Police Act 1997 section 122(2)). The Code of Practice in force at the relevant time was prepared in 2009. The current version is dated November 2015. The Code (in both versions) requires the registered body to have ‘a written policy on the suitability of ex-offenders for employment ...’ and to make it available to applicants; and to notify potential applicants of ‘the potential effect of a criminal record history on the recruitment and selection process’. There is no specific reference to the handling of information in ECRCs, or of information about acquittals, other than a general requirement to ‘discuss the content of the Disclosure with the applicant before withdrawing the offer of employment’. 38.     There appears to be no formal evidence as to how ECRCs are used in practice by employers. A recent investigation into DBS by the National Audit Office (February 2018) records: ‘There is no check on what employers have done with the information provided by DBS. Government does not know how many people this information prevented from working with children or vulnerable adults.’ (para 4.15) 39.     There is some evidence that employers are encouraged to treat police disclosures with care. [Counsel for the Secretary of State] referred to a document published by Nacro (with the support of DBS) entitled Recruiting Safely and Fairly: A Practical Guide to Employing Ex ‑ Offenders (2015). This is directed principally at the employment of those with criminal convictions, said to constitute over 20% of the working-age population, and accordingly ‘a significant talent pool that organisations cannot afford to ignore’. Although there is no specific advice on the handling of information in ECRCs relating to acquittals, emphasis is given to the need to adapt procedures to avoid inadvertent discrimination against those with criminal records, and for the need for a careful and sensitive risk assessment interview where concerns arise from a criminal record check. [Counsel for the Secretary of State] also asked the court to note evidence from a report by a company called Working Links ( Tagged for Life: A research report into employer attitudes towards ex ‑ offenders ) that only 5% of employers surveyed would automatically reject a candidate with a criminal record. The same report indicates that only 18% had actually employed someone they knew to have convictions. 40.     For more specific advice on the use of non-conviction information, he referred us to a Local Government Association publication ( Taxi and PHV Licensing: Councillors’ Handbook ; pp 13-16). Responding to ‘anecdotal evidence’ that some authorities have been reluctant to attach weight to such information, it is noted that such information ‘can and should be taken into account and may sometimes be the sole basis for a refusal’. The following advice is given: ‘When dealing with allegations rather than convictions and cautions, a decision maker must not start with any assumptions about them. Allegations will have been disclosed because they reasonably might be true, not because they definitely are true. It is good practice for the decision makers, with the help of their legal adviser, to go through the contents of an enhanced disclosure certificate with an applicant/driver and see what they say about it. If, as sometimes happens in practice, admissions are made about the facts, that provides a firm basis for a decision.’ (p 15)” 26.     Lord Carnwath noted that there was no dispute that the disclosure had involved an interference with the applicant’s Article 8 rights. The issue was, he said, “whether, in terms of article 8.2, it was ‘necessary ... for the protection of the rights and freedoms of others’ – in other words, whether it was ‘proportionate’”. He considered, first, the applicant’s submission that the interference involved in the disclosure could not be justified unless the police officers (or the judge) were in a position to form a positive view of likely guilt, and that this could not be done without a full appraisal of the evidence in the trial. He said: “68.     ... I cannot accept that, as a matter of domestic law or under article 8, it is necessary or appropriate for those responsible for an ECRC to conduct a ‘detailed analysis’ of the evidence at the trial ... That is the task of the judge and jury, who have the advantage of seeing and hearing the witnesses. Whether or not it would be compatible with article 6.2 for the chief officer to express a view on the merits of the case following an acquittal, it is not the proper function of an officer to attempt to replicate the role of the court, or ... to conduct a ‘mini-trial’. Nor can that be read into the language of the statute. His task under section 113B is to identify and disclose relevant ‘information’, not to make a separate assessment of the evidence at trial ...” 27 .     He referred to examples where additional information might be available which justified treating the trial court’s disposal as less than decisive, or provided a positive indication of innocence. However, in the absence of information of that kind, he said, it was not the job of the police to fill the gap. To the extent that the reviewing officer in the present case had seen it as part of her task to assess whether, in the light of the evidence at trial, the allegation was “more likely to be true than false”, she had therefore been in error. However, Lord Carnwath continued: “69.     The judge did not make the same error. He went no further than to accept, as he was entitled to do, the Chief Constable’s view that the information was ‘not lacking substance’ and that the allegations ‘might be true’. However, that in itself did not mean that disclosure was disproportionate. It was a matter for him to assess whether the information, albeit in the limited form contained in the ECRC, was of sufficient weight in the article 8 balance. 70.     It is to be borne in mind that the information about the charge and acquittal was in no way secret. It was a matter of public record, and might have come to a potential employer’s knowledge from other sources. If so, a reasonable employer would have been expected to want to ask further questions and make further inquiries before proceeding with an offer of employment. Its potential significance was as the judge found underlined by ‘the seriousness of the alleged offence, its relevance to the position applied for, and its comparatively recent occurrence’... On the other side, the judge took full account of the possible employment difficulties for A.R., but regarded those as ‘no more than necessary to meet the pressing social need’ for which the ECRC process was enacted ...” 28 .     He concluded that the applicant had failed to identify any error in the judge’s reasoning. He added the following postscript: “74.     Given that Parliament has clearly authorised the inclusion in ECRCs of ‘soft’ information, including disputed allegations, there may be no logical reason to exclude information about serious allegations of criminal conduct, merely because a prosecution has not been pursued or has failed. In principle, even acquittal by a criminal court following a full trial can be said to imply no more than that the charge has not been proved beyond reasonable doubt. In principle, it leaves open the possibility that the allegation was true, and the risks associated with that. 75.     However, I am concerned at the lack of information about how an ECRC is likely to be treated by a potential employer in such a case. [Counsel for the police] was at pains to emphasise that the ECRC is only part of the information available, and will ... not necessarily lead to failure. On the other hand, Lord Neuberger [in R   (L)   v.   Commissioner of Police of the Metropolis ] assumed that an adverse ECRC would be a ‘killer blow’ for an application for a sensitive post ... That view was adopted without question by the Strasbourg court in MM v United Kingdom (2013) (Application No   24029/07), but it is not at all clear with respect that it was based on any objective information or empirical evidence of what happens in practice. We have been shown reports which emphasise the importance of not excluding the convicted from consideration for employment, but they say nothing about the acquitted, who surely deserve greater protection from unfair stigmatisation. Nor does there appear to be any guidance to employers as to how to handle such issues. Even if the ECRC is expressed in entirely neutral terms, there must be a danger that the employer will infer that the disclosure would not have been made unless the chief officer had formed a view of likely guilt. 76.     These issues require further consideration outside the scope of this appeal. Careful thought needs to be given to the value in practice of disclosing allegations which have been tested in court and have led to acquittal. The figures noted above show that the number of ECRCs relating to acquittals represent a very small proportion of the whole. This may suggest that in many cases chief officers find no cause for disclosure of risk in cases following acquittals.” RELEVANT LEGAL FRAMEWORK AND PRACTICE THE POLICE ACT 1997 29.     The Police Act 1997 provided at the relevant time for the disclosure of criminal record information in the context of employment vetting to be undertaken by the CRB. The law in force at the relevant time 30.     The following description of the relevant legislative framework concerns the law as in force at the relevant time, namely on 22 March 2011 and 28 March 2012 when the applicant’s ECRCs were issued (see paragraphs   6 and 13 above). 31.     The 1997 Act provided for three different types of certificate depending on the context in which criminal record information was sought. A criminal conviction certificate contained only unspent convictions. Any employer could ask for a basic CRB check. 32 .     A criminal record certificate (“CRC”) issued pursuant to section 113A of the 1997 Act contained spent and unspent convictions and cautions. Only recruitment to certain positions could give rise to a request for a CRC. The positions concerned were set out in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and included, in so far as relevant to the present application, teaching positions involving persons under the age of 18. An application for a CRC had to be countersigned by a registered person (who was the employer, where the certificate was sought in the context of employment). 33 .     An ECRC issued pursuant to section 113B of the 1997 Act also contained spent and unspent convictions and cautions. However, in addition it included other information held by the police which in the opinion of the chief officer “might be relevant” to the purpose for which the ECRC was sought and “ought to be included in the certificate” (section 113B(4)). The employment positions which permitted a request for an ECRC were the same as those which entitled an employer to request a CRC (see paragraph   32 above). However, an ECRC could only be sought for a “prescribed purpose”, as set out in regulation 5A of the Police Act 1997 (Criminal Records) Regulations 2002. Prescribed purposes included considering a person’s suitability for working with children or vulnerable adults, assessing suitability for employment related to national security and, from 26   March 2012, suitability to obtain a taxi driver licence. An application for an ECRC also had to be countersigned by a registered person (see paragraph   32 above). Pursuant to section 113B(6), the ECRC was sent to both the applicant and the employer, as the registered person. 34 .     Section 122 required the Secretary of State to publish, and from time to time revise, a code of practice in connection with the use of information provided to, or the discharge of any function by, registered persons (see paragraph   50 below). Subsequent relevant amendments to the law 35 .     On 10 September 2012 changes to these provisions of the 1997 Act entered into force. The test of “might be relevant” in section 113B(4) (see paragraph   33 above) was amended to cover information which the police officer “reasonably believes to be relevant”. 36 .     A new section 113B(4A) was also introduced to give the Secretary of State the power to issue guidance to chief officers of police on providing information for disclosure in ECRCs (see paragraph 48 below). 37 .     A mechanism was introduced whereby a person could dispute the inclusion of information under section 113B(4) in an ECRC. Pursuant to new section   117A of the 1997 Act, if an ECRC includes information that an applicant believes is not relevant or ought not to be included in an ECRC, they may make an application to the independent monitor for a decision as to whether the information is relevant and ought to be included. The independent monitor, who is appointed by the Secretary of State (section   119B), must ask the relevant chief officer to conduct a review of the disclosure decision. If, following this review, the independent monitor considers that the information is either not relevant or ought not to be included in the ECRC, a new ECRC that excludes the information is issued. In exercising their functions, the independent monitor must have regard to any guidance published by the Secretary o