The Intricacies of Proportionality – Katherine Barnes
12 August 2018
R (AR) v Chief Constable of Greater Manchester Police  UKSC 47 – read judgment
The Supreme Court has given important guidance on the correct approach of the appellate courts to assessing proportionality under the ECHR. The main issue before the court was whether an Enhanced Criminal Record Certificate (“ECRC”) issued in respect of the appellant, AR, under s.113B of the Police Act 1997 is compatible with Article 8 of the Convention on Human Rights.
AR was a married man with children, of good character, and a qualified teacher, and worked for a time as a taxi driver. It had been alleged that, in the early hours of 4 November 2009, he raped a 17 year old woman, who was a passenger in his taxi. AR’s defence was that there had never been sexual contact with the alleged victim. In January 2011 he was acquitted of rape by the Crown Court.
AR subsequently applied for an ECRC in connection with an application for a job as a lecturer. The police duly issued the ECRC which contained details of the rape charge for which AR had been acquitted. A second ECRC which also contained this information was later issued in respect of an application by AR to work as a private hire driver.
Having exhausted the various internal appeal mechanisms available to him, AR issued a claim for judicial review. Amongst other matters he argued that the inclusion in the ECRC of information concerning the rape charge and acquittal was procedurally unfair because it had been disclosed without consulting him. It was also said that the disclosure amounted to a substantive breach of Article 8.
The approach of the lower courts
The matter came before HH Judge Raynor QC (sitting as a Deputy High Court judge) who dismissed the claim. On the question of whether the interference with AR’s Article 8 rights was proportionate, he observed:
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 […] 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.
The decision of the High Court was upheld by the Court of Appeal. McCombe LJ (with whom Lord Dyson MR and David Richards LJ agreed) concluded that the appellate court should only consider the issue of proportionality for itself if it finds that the judge has made a “significant error of principle”. No such error was apparent in Judge Raynor’s judgment.
The decision of the Supreme Court
The Supreme Court was unanimous that there was no breach of Article 8. Lord Carnwath (who gave the only judgment) gave short shrift to the procedural argument, finding that consultation with AR would have served little given that AR had not outlined any further information which he wished to advance. Further, the police were well aware from the trial evidence of the nature of AR’s defence and his personal circumstances. They also took account of the potential impact of disclosing the information in question on AR’s employment prospects.
In respect of the alleged substantive breach of Article 8, Lord Carnwath rejected the argument advanced on behalf of AR that compliance with Article 8 required the decision-maker to be in a position to form a positive view of likely guilt, which in turn necessitated a “detailed analysis” of the trial evidence. Rather, Lord Carnwath found that this task was for the Crown Court judge and jury; it was not for the police on an application for an ECRC to conduct a “mini-trial” and form a view on the veracity of the allegations. The role of the police was limited to identifying and disclosing relevant information, on which the potential employer could then form a view in all the circumstances. This is what the police, and Judge Rayner, were found to have done.
Rayner J’s approach to proportionality was also endorsed. He was right to have recognised that factors weighing in favour of disclosing the information were the seriousness of the alleged offence, its relevance to the position applied for and its comparatively recent occurrence. He was also found to have given careful consideration to the possible employment difficulties for AR, but was entitled to regard these as “no more than necessary to meet the pressing social need” for which the ECRC process had been enacted (para ).
The correct approach to proportionality on appeal
There was no dispute between the parties that at first instance Raynor J was required to make his own assessment of proportionality while also giving weight to the views of the primary decision-maker (Huang v Secretary of State for the Home Department  2 AC 167); R (SB) v Governors of Denbigh High School  1 AC 100).
There was, however, disagreement as to how an appellate court should approach proportionality. Guidance on this matter had been given by the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33. In that case the majority found that an appellate court should not interfere with the proportionality assessment of a lower court unless “a significant error of principle” had been made. The view of the minority (Lord Kerr and Lady Hale) was rejected that the appellate court should evaluate proportionality for itself while taking into account the decision of the court below. It was on this basis that the Court of Appeal here had applied the “significant error of principle” test in considering the judgment of Judge Raynor.
It was argued on behalf of the Appellant, however, that a distinction should be drawn between a case such as In re B, where the judge of the lower court was the initial decision-maker (he decided whether to make a care order), and a case such as this where the judge was reviewing an existing decision (here a decision by the police to include certain information in an ECRC). In such circumstances, it was said that the Court of Appeal was in as good a position as the trial judge to make its own assessment of proportionality.
The Supreme Court rejected this argument, finding it to cut across the reasoning of In re B. However, Lord Carnwath explained that, properly understood, In re B did not impose as high a threshold for interference as the existence of a “significant error of principle”:
…to limit intervention to a “significant error of principle” is too narrow an approach, at least if it is taken as implying that the appellate court has to point to a specific principle – whether of law, policy or practice – which has been infringed by the judgment of the court below. The decision may be wrong, not because of some specific error principle in that narrow sense, 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. However, it is equally clear that, for the decision to be “wrong” under CPR 52.11(3), it is not enough that the appellate court might have arrived at a different evaluation.(Para ).
It is clear, therefore, that an appeal does not provide an opportunity for a second bite of the cherry, in proportionality terms at least, regardless of whether the lower court acted as the initial decision-maker or in its review capacity.
There is undoubtedly a certain amount of sense in this as a means of avoiding protracted litigation. Nonetheless, aspects of this pragmatic approach are difficult to reconcile with the long-accepted principle that the court is required to reach its own view on proportionality (R (SB) v Governors of Denbigh High School  1 AC 100 etc).
Deference is usually afforded by the courts on the basis that the initial decision-maker had benefit of more evidence and/or on the understanding that an expert decision-maker better appreciates the various considerations at play. While these factors were applicable in In Re B, an appeal from an expert family judge who would have heard all the evidence, in this instance there is no reason the Court of Appeal would have been less well-placed than the High Court to conduct a proportionality assessment. Indeed, if anything the Court of Appeal would be betterplaced to undertake this exercise given its greater legal expertise and experience. On important questions concerning the protection of fundamental human rights, a light-touch review is hard to justify – getting it right matters.
Katherine Barnes is public law and human rights barrister at 39 Essex Chambers