IN THE INFORMATION TRIBUNAL
IN THE MATTER OF THREE CONSOLIDATED APPEALS TO THE INFORMATION TRIBUNAL UNDER SECTION 48(1) OF THE DATA PROTECTION ACT 1998
THE CHIEF CONSTABLES OF WEST YORKSHIRE, SOUTH YORKSHIRE AND NORTH WALES POLICE Appellants
THE INFORMATION COMMISSIONER Respondent
The three appeals have been consolidated but the Tribunal has made it clear throughout and the parties agree that each case should be treated on its own individual merits and facts. Notwithstanding that, it is also generally accepted that the three cases raise matters of considerable wide-ranging importance which clearly transcend the circumstances surrounding each individual enforcement notice.
"3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.
- Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes".
Summary of conclusions
"… hence the 1998 PNC – ID and at the same time the 1979 assault was noticed, I assume by the South Yorkshire police checking their local system. A "back record conversion", from their local system was made thereby transferring the record onto the live PNC. This would have been as a result of someone noticing that this record should be on PNC in accordance with the weeding rules". (Emphasis in original).
"For example, it might be that some data could be held in a way that makes them available to the police for their purposes but not to employers via the CRB"
The reference to the CRB was, of course, a reference to the Criminal Records Bureau hereafter called the "CRB". He therefore floated the idea of what he called "some form of partial weeding", as a possibility. He also noted that given the recent inclusion (largely prompted by decided case law) of DNA and finger print information which could properly be retained the Commissioner was "strongly of the view that increased retention of DNA and finger print information should not lead to increased retention of conviction information on the PNC". He added, however, that there was still a recognition on the part of the Commissioner "that the retention of such information in isolation will be of little value without further details to assist identification".
"… it would appear highly unlikely that there would be repeat offences of a similar nature and consequence of the relevance of retaining this data for 100 years would appear to be somewhat questionable".
The Weeding Rules
"Particularly now that the [CRB] is operational the need for accuracy of personal information has never been greater. My concerns about the quality of data on the [PNC] are well known. I am encouraged by the efforts that are being made to bring about improvements but would emphasise that as modern day policing increasingly relies on sophisticated information systems there must be a strong commitment to properly maintaining those systems.".
"I am obliged to examine on its merits any request for assessment of compliance with the Act made to me. In doing so, I shall of course take into account the specified retention periods contained in the code but must also look at the particular circumstances of the case".
A proposed new set of retention guidelines: current consultation
One self evident development was the introduction of the CRB in 2002 which provided the disclosure service: the consultation paper observed equally self evidently perhaps, that use of the CRB was made by an increasing number of organisations and entities who had had a significant impact with more people becoming aware that data relating to them was and is held on the PNC. One example of the evolution of development of data in this area is also given in the introduction namely the extension of the issue of fixed penalty notices ("PND") for traffic offences to cover, under the extended scheme, on the spot penalties for disorderly behaviour, offences regarding drunkenness etc. So far as that scheme extends or is likely to extend to recordable offences such events are to be recorded on the PNC. Even though a penalty notice for disorder or PND would not as such be regarded as a criminal offence for court or employment vetting purposes, a nominal record would be retained and in the case of DNA and finger print samples links would be provided to those samples.
"other users of PNC should be unaware of the existence of such records, save for those occasions where the individual is the subject of an Enhanced check under the Criminal Records Bureau vetting process. In those cases the data should be dealt with as intelligence and only disclosed on the authority of the Chief Constable or delegated authority."
Reference to a "CJ arrestee" reflects amendments introduced by the Criminal Justice Act 2003 to allow the police to take DNA samples and fingerprints from all those detained at a police station having been arrested for a recordable offence.
WY was 17 at the relevant time, i.e. in 1978, at the commission of the first offence and would therefore also be treated as a Young Person. Again, the offence would be Category C and non-custodial. However in 1979, WY would have been an Adult, but again the offence would be Category C. The sentences totalled 6 months in custody. All offences including those from 1978 were stepped down after a clear period of 30 years by which time WY would attain the age of 48. Thereafter the conviction history would be available only to the police for use in support of policing purposes.
Finally in the case of NW, NW was 17 at the relevant time and thus a Young Person. The first sentence was non-custodial and the offence would step-down after 10 years. At the time of the convictions in 1967 and 1968, NW was 18 and an Adult. Again all the offences would be Category C. All offences including those from 1967 would step-down after a clear period of 12 years from about July 1968. At the time of the conviction in 1969, the offences would be Category C. All offences would step-down after a clear period of 15 years when NW would be 34. Thereafter the conviction history would be available only to the police in support of their policing purposes.
"Similarly, given that the legislation, which requires the retention of arrest and acquittal information to be retained on PNC is recent, no research is known to exist in this area".
The Bichard Inquiry
"The register would be constantly updated, following the introduction next year of a new system (PLX) that will indicate when police forces hold intelligence on an individual. The register could be easily accessed – subject to security protection – by any employer, large or small, including parents employing tutors or sports coaches. Such a system would relieve the police of the responsibility of deciding what information should be released to employers and would simplify arrangements for employers. It could – and I think it should – incorporate an appeal process for applicants who were refused registration. It would also avoid information about past convictions being released to prospective employers without reference first to the individual concerned."
"Clear guidance on record creation, retention, review, deletion and the showing of information.
- Although there is much advice and guidance already in existence, it is subject to local interpretation and leaves scope for confusion between the concept of "review" on the one hand and "deletion" on the other. In some circumstances, the guidance is unclear about the retention of conviction–related information and leads to inconsistent decisions about the retention of criminal intelligence (that is, non-conviction related information).
- As a result, the possibility of valuable intelligence being lost prematurely is significant. I believe, therefore, that a new national code of practice needed, and that it should be made under the Police Reform Act to ensure that it is applied across the country. It needs to be clear and designed to help police officers in the front line. It should supersede all existing guidance and cover the capture, review, retention or deletion of all information (whether or not it is conviction related). The Code should also cover the showing of information by the police with partner agencies."
As referred to above, the Tribunal given the evidence presented before it on these appeals feels that the word "guidance" is to some extent misleading. The confusion that arises is amplified if nothing else by the Appellants' contention that the Weeding Rules provide almost a consistent and inflexible rule of practice going far beyond any form of guidance. The Tribunal feels that should ACPO and the Commissioner reinstitute a dialogue as to the way forward whether or not under the umbrella of a new national code of practice propounded by the Bichard Report, the Appellants if nothing else together with the other 40 chief police officers in England and Wales would clearly benefit from clear specific instructions as distinct from guidance. Indeed the parties themselves have at various points indicated that this sort of change might be in the end the best way forward.
"As a result of data protection legislation, there is a need for the police to periodically review intelligence and other records. There are two basic functions involved: review and, if appropriate, deletion. There is an obvious and critical distinction between the two."
Given the commentary upon the ACPO rules which has been made above the Tribunal feels that the quoted passage perhaps understates the position. The spirit and purpose behind the ACPO Codes of Practice even in their earlier incarnations show that review and/or deletion should represent ongoing activities under the aegis of the particular Data Protection Officer who is answerable to the Chief Constable. It is to be noted however that no reference is made to the concept of weeding and that subject to any technological impediment the Tribunal would agree that what should be aimed for in the wake of an ongoing review should be deletion in the sense of permanent removal and nothing short of that. The need for an ongoing review system is emphasised at various points in the Bichard Inquiry Report see e.g. para 2.104 where the Chief Constable of Humberside was said to have acknowledged in his report to the Inquiry that there "had been inconsistent review and deletion practices in the three main databases".
Inquiry indicates that there is a pressing need for clearer guidance in this area" (emphasis supplied).
"4.45.1The police are the first to judge of their operational needs and the primary decision makers; the Information Commissioner's role is a reviewing or supervisory one
- 45.2 Police judgements about operational needs will not be lightly interfered with by the Information Commissioner. His office "cannot and should not substitute [their] judgement for that of experienced practitioners". His office will give considerable latitude to the police in their decision making. If a reasonable and rational basis exists for a decision, "that should be the end of the story".
"There was a clear consensus in the evidence, including that from ACPO, in favour of taking the decision about what information should, and should not, be disclosed out of police hands. That consensus is, in my view, supported by a range of compelling arguments:
– a core police task – the judgement about relevance for the disclosure of intelligence is a distraction from "normal" policing duties that a hard pressed police service can ill afford.
- 105.3 There is also a risk that the police will blur the decisions about whether information should be retained and whether it should be disclosed. These are different issues, not least because the relevance of Article 8 of the European Convention on Human Rights… is markedly different in the separate contexts. For example, it may be justifiable for a police force to interfere with a person's private and family life to the extent of retaining confidential information on him/her, but not justifiable to communicate that information to his/her employer." (Emphasis in original).
No similar stress was placed by the Appellants through their Counsel on the need to separate out these functions before this Tribunal but the Tribunal nonetheless recognises in line with its earlier observations about the critical distinction between retention and disclosure that it is clearly desirable that police forces' efforts be concentrated wholly if not exclusively upon policing purposes save insofar as the same bear upon employment vetting in the case of juveniles and vulnerable adults. This indeed was consistent with the arguments provided by the Appellants in these appeals.
The evidence before the Tribunal
"In particular, the Commissioner is concerned that when police information is considered for retention or deletion, the proposals set out in the Code do not have the necessary clarity and could mislead the police about the requirements of the law."
He goes on:
"When information is considered for retention or deletion it should then simply be a matter of reapplying the same test to check whether, after the passage of time, it is still necessary and proportionate for police purposes that the information remains recorded." (paragraph 79).
such was the view felt and expressed by one Home Office representative alone
not shared by other representatives of the Home Office with whom the project
team had to have contact.
be erased in the way sought by the enforcement notices. Although it is fair to say that he believed that the deletion of a record or partial record could be effected it is fair to say that he added that he would "hesitate to say that it could not be done." He was also prepared to concede that some weeding might have taken place which should not have taken place.
concede that though at the moment technically the same was not feasible it might in future be technically possible to screen particular individual records particularly conviction data from non police users.
The legislative framework
"Processing of data relating to offences, criminal convictions, or security measures may be carried out only under the control of official authority, or if suitable specific safeguards are provided under national law, subject to derogations which may be granted by the member state under national provisions providing suitable specific safeguards. However, a complete register of criminal convictions may be kept only under the control of official authority."
Pausing here the Tribunal rejects the suggestions, if not the contention made on behalf of the Appellants that the above Article makes it clear that it is in some way mandatory for a Member State to retain a complete register of criminal convictions in effect without qualification. The Tribunal accepts the submissions made on behalf of the Commissioner that the true meaning and effect of the Article is to provide that a complete register will be unlawful unless it is kept under the control of official authority. It is clear that a total reading of the Article cited above shows that if a complete register is to be maintained then the same will be unlawful unless it is kept under the control of official authority, ie the appropriate body entrusted with such matters in the particular Member State.
the 1998 Act. The section provides that so called "registerable particulars" include by section 16(1)(d):
"… a description of the purpose or purposes for which the data are being or are to be processed;"
"The prevention and detection of crime; apprehension and prosecution of offenders, protection of life and property; maintenance of law and order; also rendering assistance to the public in accordance with force policies and procedures."
"(g) the commission or alleged commission by him [ie the data subject] of any offence; or
(h) any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings".
"(a) To take within such time as may be specified in the notice, or to refrain from taking after such time as may be so specified, such steps as are so specified; or
(b) To refrain from processing any personal data, or any personal data of or description specified in the notice, or to refrain from processing than for a purpose so specified or in a manner so specified, after such time as may be so specified."
The present enforcement notices are addressed solely to the facts of each individual appeal. It was at one time mooted that convictions of a similar type be the subject of a direction to effect deletion or erasure but this has not been argued or pursued on these appeals. It follows that this Tribunal is concerned solely with the facts of these three particular appeals although it is conscious of the ramifications which follow from any determination it makes. The Tribunal's own jurisdiction is set out in section 49 of the 1998 Act. It provides as follows in relevant part, namely:
(1) If on an appeal under section 48(1) the Tribunal considers –
(a) that the notice against which the appeal is brought is not in accordance with the law; or
(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently;
(i) the Tribunal shall allow the appeal or substitute such other notice or decision as could have been served or made by the Commissioner; and in any other case the Tribunal shall discuss the appeal.
(ii) on such an appeal, the Tribunal may review any determination of fact on which the notice in question was based.
(iii) if on an appeal under section 48(2) the Tribunal considers that the enforcement notice ought to be cancelled or varied by reason of a change in circumstances, the Tribunal shall cancel or vary the notice."
"The Secretary of State may by regulations make provision for recording in police records convictions for such offences as are specified in the Regulations".
"There may be recorded in the National Police Records convictions for offences punishable by imprisonment …".
There then follows a list of other specified offences consisting of offences connected with prostitution, the improper use of telecommunications and penalisation in connection with the tampering of motor vehicles. Further Regulations were enacted in 1989 adding further offences and in 1997 yet further Regulations were passed adding a large number of specific offences. Further Regulations still were enacted in 2000 adding yet more specific offences. The Tribunal was informed that the above set of Regulations constitutes a complete catalogue. The 2000 addition of the Regulations by Regulation 3(1) contains a specific reference to cautions, reprimands and warnings. This reflects the extended meaning given to the term "conviction" in the principal statute at section 27(4)(a). The term "recordable offence" is in effect an offence specified in the entire set of regulations as being one of the offences that may be recorded. Support for this understandable reading is provided in the Explanatory Note appended to the 1985 Regulations.
"Subject to section 7 and 8 below, a person who has become a rehabilitated person for the purposes of this Act in respect of a conviction shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction; …"
This subsection then goes on to provide that notwithstanding the provisions of any other enactment or rule of law or evidence regarding such spent conviction no evidence as to such conviction shall be admissible in any legal proceedings and such a person who is so rehabilitated shall not in any such proceedings be asked and if asked should not be required to answer any question relating to its past so far as a spent conviction is concerned. Subsection (3) subject to any order made under subsection (4) provides as follows, namely:
"(3) Subject to the provisions of any order made under subsection (4) below
(b) a conviction which has become spent or any circumstances ancillary thereto, or any failure to disclose a spent conviction or any such circumstances, shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or prejudicing him in any way in any occupation or employment".
"(2) Nothing in section 4(1) above shall affect the determination of any issue, or prevent the admission or requirement of any evidence, relating to a person's previous convictions or to circumstances ancillary thereto –
(c) in any criminal proceedings before a court in Great Britain (including any appeal or reference in a criminal matter);"
"This is so whether or not criminal proceedings in question were held in public, and whether or not they were subject to reporting restrictions".
The Tribunal has not heard or received any further oral submissions on this point and is content to accept the contention that were proceedings to be held in private or were criminal proceedings to be subject to reporting restrictions (which is frequently if not invariably the case in juvenile proceedings) then these would be, in the words of the Commissioner, "additional considerations that support the Commissioner's contention that Article 8(1) is engaged".
"(3) A criminal record certificate is a certificate which –
(a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records, or
(b) states that there is no such matter."
By subsection (5) the expression "central records" is defined as meaning "such records of convictions and cautions held for the use of police forces generally as may be prescribed; …".
The same expression, namely "central records" is further explained by referring to the appropriate statutory instrument, namely the Police Act 1997 (Criminal Records) Regulations 2002 SI 2002 No. 233. By Regulation 9 the so called prescribed details of central records are described as follows, namely:
"Information in any form relating to convictions, cautions, reprimands and warnings on a names index held by the Police Information Technology Organisation for the use of constables is hereby prescribed as "central records" for the purposes of section 113(5) of the Act (including that provision as applied by sections 114(3), 115(6) and 116(3))."
As is clear from the earlier part of this judgment the same is in effect a reference to the PNC and PITO is the organisation referred to in the Regulation cited. Briefly PITO is the notional holder of the records but in reality as has been explained before the Tribunal, the CRB is the entity which has a right of access to the database principally for the purposes of employment vetting.
"(7) Before issuing an enhanced criminal record certificate the Secretary of State should request the chief officer of every relevant police force to provide any information which, in the chief officer's opinion –
(a) might be relevant for the purpose described in this statement under subsection (2), and
(b) ought to be included in the certificate."
Subsection (2) reflects the reality of the enhanced disclosure system according to which an application under the section should be accompanied by a statement by the registered person that the certificate is required for what is known as an exempted question, meaning a question in relation to which section 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 has otherwise been excluded under section 4(4). Section 115(7) is the basis on which the Secretary of State (but in practice the CRB) requests chief officers to provide non conviction soft information: section 115 is in other words the statutory basis on which such information is provided as part of enhanced disclosure.
"(a) all parties to the proceedings agree to the evidence being admissible,
(b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it,
(c) it is important explanatory evidence,
(d) it is relevant to an important matter in issue between the defendant and the prosecution,
(e) it has substantial probative value in relation to an important matter in issue between the defendant and the co-defendant,
(f) it is evidence to correct a false impression given by the defendant, or
(g) the defendant has made an attack on another persons character."
Equally, it is well established that any witness may have his credibility impugned by way of cross-examination as to his character including spent convictions: see generally R v Evans (1992) Crim LR 237. Such matters are now governed by section 100 of the 2003 Act and involve in general a consideration of whether such material provides important explanatory evidence with substantial probative value in relation to any matter or issue which might be in question and which might be raised as having substantial importance in the context of the case as a whole.
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.".
The relevant provisions of the Convention are, as is well known brought into force in England and Wales by virtue of the Human Rights Act 1998.
The Data Purposes
"Failure to observe relevant legal provisions and principles lays forces open to legal challenge, and possibly to action for damages. It is imperative, therefore, that those members of each force who are responsible for making such decisions clearly understand the principles under which they must operate, and that they observe those principles to the full. (It should also be kept in mind that the provisions of the Police Act 1997 do not alter the basis upon which forces retain soft intelligence. This should be driven by the operational requirements of the police themselves. Information should not be recorded by the police, or retained for longer than is necessary for police operational purposes, solely against the possibility that the information – for example about suspicion of an offence of theft – might be needed in order to respond to a request by the CRB at sometime in the future, should the individual apply for a job that involved handling money. Separate guidance is in preparation about the retention and management of information, in light of the report of the Bichard Inquiry into the Soham case). If the correct principles had been observed, and logged as having been observed, a court is likely to interfere only if it satisfied that the decision to disclose is unreasonable – i.e., beyond the range of responses open to a reasonable decision maker."
(a) that the information might be directly relevant to assessment of the person's suitability to work with children (or vulnerable adults); and
(b) that a reasonable potential employer of the applicant for a particular job or position might find the information had been material to his or her decision as to whether or not to employ that individual in that job or position having regard to the question of whether that individual would pose a risk to children (or vulnerable adults)"
The Commissioner's Secondary Position
As indicated above the Tribunal was shown a list of users who were presently given various forms of access, largely limited and described by the various hash codes which Mr McMullen described; such users include such important bodies and departments as the Commissioners of Inland Revenue, Customs & Excise of the Royal Military Police and other bodies which could generally be said to have some form of policing concern. The Tribunal will revert to this below.
Of much more importance is the way in which section 113 of the Police Act and particularly section 115 are to be interpreted. As has been indicated section 113(1) requires the Secretary of State to issue criminal record certificates being so called standard certificate certain circumstances. The term "relevant matter" which appears both in section 113 and section 115 is defined as meaning convictions including spent convictions and cautions: see section 113(5). Again, as is also described above the expression "central records' is to be read in the light of section 113(3) as well as section 112(3) with regard to basic disclosures and a more pertinently Regulation 9 of the Police Act 1997 (Criminal Records) 2002 Regulations. Those Regulations also define the term "prescribed details".
"…. impossible to suppose Parliament intended that the operation of section 3 should depend critically on the particular form of words adopted by the parliamentary draftsman in the statutory provision under consideration."
Lord Nicholls also stressed in paragraph 33 that the meaning imported by application of section 3 "must be compatible with the underlying thrust of the legislation being construed" see also Lord Steyn at paragraphs 38, 43-44, and 48. The Tribunal respectfully adopts the same approach in the present appeals.
"Within 6 months to procure that the Conviction Data relating to [each of SY, WY and NW] currently held on the PNC data base be retained on the PNC subject to the retention rules of any current ACPO Code of Practice or any equivalent thereof and not be open to inspection other than by the data controller or by any other data controller who is or represents a chief officer of police."
The Tribunal also directs any and all parties to file a written review as to be the progress regarding the achievability of the aim set out in the above notice as amended, if they so wish, within four months of the date of this judgment.
"On each occasion when it is reviewed, information originally recorded for police purposes should be considered for retention or deletion in accordance with criteria set out in guidance under this code."
Section 4.6.2 goes on as follows:-
"Guidance will acknowledge that there are certain public protection matters which are of such importance that information should only be deleted if:
(a) the information has been shown to be inaccurate, in the ways which cannot be dealt with by amending the records; or
(b) it is no longer considered that the information is necessarily for police purposes".
In the Tribunal's view it is paramount that any such guidance should be reflected and if necessary complemented by any future guidelines or code of practice regarding conviction data and its erasure or weeding. The new Code clearly contemplates ongoing review and the Tribunal respectfully suggests that a regular course of review should be explicitly set out in the case of conviction data both before and after any date which is fastened upon as being appropriate for the purposes of stepping down and certainly well before any stepping out in fact takes place. This is a matter for negotiation but some degree of consistent and periodic review should be specified. In any event, as indicated above at paragraph 62, the Tribunal feels that any guidance should be transmitted in somewhat more stringent terms.
(1) Proper deletion of data subject records.
(2) Limiting of access to those users who meet criteria specified by ACPO or any other authorised body with access being on an opt-in basis, rather than an opt-out basis, i.e. any default mode if such be the case should be on a no-access basis.
(3) Amendments to users' details that pertain to their ability to match the "access" criteria.
(4) Amendments to criteria to meet changes in circumstances.
(5) Automation of record culling process should use a variety of appropriate prompts along the lines already indicated above, e.g. age, conviction data, time elapsed, etc.
The Tribunal in particular respectfully suggests that the criteria for access as well as for deletion be arrived at independently if at all possible and be clearly documented so that there is, in effect, transparency to all parties concerned.
Deputy Chairman of the Tribunal
12th October 2005
John Black Lay Member of the Tribunal
Jean Nelson Lay Member of the Tribunal