The Information Commissioner’s Office has announced that he is is seeking the permission of the Supreme Court to appeal against the decision in the case concerning the keeping of old criminal convictions on police databases, Chief Constable of Humberside Police v The Information Commissioner [2009] EWCA Civ 1079.

The Information Commissioner said that the case:

raises important issues not just for these and the many other individuals about whom very minor and aged conviction details are held but also about how the Data Protection Act 1998 is interpreted in practice. It also engages serious questions about the applicability of Article 8 of the European Convention on Human Rights to conviction data held by the police.

The case raises interesting issues about the use of private data of general application, related to those considered by the Supreme Court in the R (L) v Commissioner of Police case – commented on here.

On 19 October 2009, the Court of Appeal, allowed police appeals against a decision of Information Tribunal (upholding the Information Commissioner) that data on old minor convictions should be deleted from the Police National Computer (”the PNC”). The matter had been referred to the Court of Appeal by the Administrative Court under CPR 52.14.  The Court of Appeal held that retaining information for police operational needs did not infringe the data protection principles under the Data Protection Act 1998.

Five people with minor and very old convictions had complained to the Information Commissioner’s office after their criminal records had shown up when applying for jobs. In one case, the record referred to the theft of a 99p packet of meat stolen in 1984 when the person involved was under 18.  Another, held by West Midlands Police, involved a man who applied to work on a summer activity scheme with children but who had been convicted and fined for theft more than 25 years earlier.  Criminal records remain on the police national computer for up to 100 years under current policy.

The cases hinged on data protection principles three and five.  Principle 3 is that: “Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed”. Principle 5 is that “Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”

The Commissioner argued that retention of the data was breach of both principles.  He contend that the data should be retained only for “core” police purposes, which would not include keeping information for use later by the Criminal Records Bureau, Crown Prosecution Service and the courts and that its retention was not necessary.  

In relation to the 3rd Principle, the Court of Appeal rejected the Tribunal’s view that the data could only be held for “core police purposes”, holding that one of the purposes for which the police retained the data on the PNC was to be able to supply accurate records of convictions to the CPS, the courts and indeed the CRB. 

In relation to the 5th Principle, the Court went on to say that:  “If the police say rationally and reasonably that convictions, however old or minor, have a value in the work they do that should, in effect, be the end of the matter” (para 43, per Waller LJ).  As Hughes LJ put it:

“Like both Waller and Carnwath LJJ, I take the clear view that if senior police officers with considerable operational experience are satisfied that even very old and comparatively minor convictions may sometimes be of assistance in police investigations, then unless that view is perversely or unreasonably held, it is not open to the Commissioner to substitute his own view of their potential use” (para 107).

The cases has attracted widespread press comment, see for example, The Times and the Law Society Gazette.  The case is also discussed on Pinsent Masons’ helpful website discussing IT and e-commerce issues, and on 11KBW’s useful Panopticon blog on information law.

The Court of Appeal’s decision has attracted criticism from civil liberties groups. Alex Deane, director of Big Brother Watch, said:

“This is crazy. We have a Rehabilitation of Offenders Act in this country, which tries to do exactly what it says on the tin – rehabilitate people back into society.  However, the police are effectively stymieing this by retaining fingerprints from age-old, spent convictions, which then go on to show up when people apply for jobs a generation later. “The benefit to the police of retaining the samples is minimal. The cost to the individuals can be huge — and potentially life-ruining.”

Anna Fairclough, a lawyer with Liberty said,

 “We need a tighter rein on the circumstances when spent convictions can be disclosed. This judgment forgets the privacy rights of millions of people and we hope it is appealed.”

Hughes LJ went on to add an interesting postscript, pointing out the concern of the Commissioner as to the access to the information on the PNC database, with more than  2.6 million Criminal Records Bureau certificates a year being issued and some 13,000 organisations being entitled to seek such certificates.  He suggested that it was for Parliament to consider any limitation on the indirect access of others to the contents of the PNC.

“I would respectfully agree that the time may well have come to review the accretions which there have been to the Rehabilitation of Offenders Act 1974 (Exceptions) Order. It currently includes amongst the exceedingly long list of those who must answer questions relating to spent convictions persons as diverse as those who wish to hold a National Lottery licence, or to be a doctor’s receptionist, dental nurse, steward at a football ground, or traffic officer designated under the Traffic Management Act 2000 as having the power to direct traffic”.

This point was highlighted by the Data Protection blog, Datonomy (which we commend to readers interested in Data Protection issues).

We await the determination of the application for permission to appeal with interest.