Enhanced criminal records certificates – teachers on trial

The theory that there is no smoke without fire is one which often looms large where teachers are accused of sexual offences against pupils. Even in the face of a decision by the CPS that there is insufficient evidence to proceed with a prosecution or an acquittal following a criminal trial, a teacher who has been accused of sexual offences may find it hard to escape the tainting effects of the allegations.

Of course, a critically important issue for the teacher in question is whether the allegations will ultimately find their way into any enhanced criminal record certificate (ECRC). This is an issue which has been considered by the High Court in two recent cases.

In the first, R (L) v Chief Constable of Cumbria Constabulary [2013] EWHC 869 (Admin), L, a teacher, had been accused of having improperly propositioned and hugged an 18 year old pupil whilst at a pub. L had denied the allegations and no criminal prosecution had ultimately been mounted. The High Court held that inclusion in the ECRC of information relating to the allegations was unlawful as it constituted a disproportionate and hence unjustified interference with L’s Article 8 rights (see further Rachel Kamm’s more detailed post on this judgment here).

The High Court has now given judgment in the case of RK v (1) Chief Constable of South Yorkshire (2) Disclosure and Banning Service [2013] EWHC 1555 (Admin). RK had previously been acquitted of six counts of indecent assault and sexual activity with a child (in essence it was alleged that RK had repeatedly touched the bottoms of teenage girls in his care). Nine years later RK sought disclosure of a draft ECRC from the Constabulary. The draft included information about the allegations and referred to them as ‘offenses’. RK sought a judicial review of the draft certificate.

In a fairly damning judgment, Coulson J held that inclusion of this information was unlawful as constituting a breach of RK’s Article 8 rights. Fundamental to the court’s judgment was the conclusion that the Constabulary had impermissibly treated the allegations as if they had been proven, notwithstanding the fact that RK had been acquitted. Indeed the court lamented the ‘unblinking equation’ between the unproven allegations with the so-called sexual offences (para. 61).

Whilst the judgment makes clear that an acquittal does not automatically bar the police from referencing the original allegations in the ECRC (see para. 37), it does confirm that an acquittal is likely to be an important factor weighing heavily in the balance when it comes to determining whether or not a particular disclosure should be made.

On the facts of the case before him, Coulson J found that inclusion of information about the allegations relating to RK was unlawful having regard to the fact of the acquittal; the fact that, even if proven, the incidents would not have been particularly grave or serious and further the fact that there were aspects of the prosecution case which raised serious questions about the reliability of the information.

Critically the judgments in both L and RK highlight the dangers attendant on the police unthinkingly substituting their own view of an individual’s guilt or innocence in the face of an acquittal by the criminal courts or other important evidence raising questions about the reliability of the information in issue.

Anya Proops is a barrister at 11KBW. She can be contacted on 020 7632 8500 or by This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared on the set’s Panopticon blog.