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Cite as: [2010] ECHR 1588
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6 October 2010
FOURTH SECTION
Application no.
24029/07
by M.M.
against the United Kingdom
lodged on 1
March 2007
STATEMENT OF FACTS
THE FACTS
1. The applicant, M.M., is a British national who was born on 22 October 1951 and lives in County Tyrone, Northern Ireland.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background facts
3. In April 2000, the girlfriend of the applicant’s son wished to leave Northern Ireland with the applicant’s grandson and return to live in Australia following her separation from the applicant’s son. In order to try and force her son and his girlfriend to reconcile their differences, and in the hope that her grandson would not return to Australia, the applicant disappeared with her grandson without the parents’ permission. The police were called and the child was returned unharmed the next day.
4. As a result of this incident, the applicant received a caution for child abduction which was formally administered on 17 November 2000. At the time she accepted the caution, the applicant was informed that it would be removed from police records after a period of three years. On an unspecified later date, around 2003, she was informed that the caution would remain on police records for five years.
5. On 14 September 2006, the applicant was offered employment as a Health Care Family Support Worker within Foyle Health and Social Services Trust (“the Trust”), subject to vetting.
6. On 31 October 2006, the Trust withdrew the offer of employment due to the verification of the caution for child abduction in the context of the vetting procedure.
7. The applicant sought to have the caution removed from her records by contacting the Criminal Records Office and the Police Service of Northern Ireland. In an undated letter, the Criminal Records Office replied in the following terms:
“... in a case where someone agrees to be cautioned by the police for a particular offence, by doing so they are accepting that they were guilty of the offence in the first place. This information is printed on the caution form, which you signed on 17th November 2000.
Regrettably there is no way to change that. The case cannot be brought back to a court because the whole idea of the caution was to keep it out of court in the first instance.
I should also point out that the information given to Sgt Dunne and which he relayed to you in 2003, about the weeding date for an adult caution, was correct at that time but there has since been a policy change. Normally an adult caution will be weeded after a period of five years, provided the defendant has not been convicted on any further offences. However following the murder of the schoolgirls in Soham England and the subsequent Bichard Report the weeding policy was changed in relation to all cases where the injured party is a child. The current policy is that all convictions and cautions, where the injured party is a child, are kept on the record system for life.”
8. The letter concluded:
“I fully appreciate that the offence in your case was not the normal type of offence and that the child did not suffer any harm and that it was never your intention that he should suffer any harm. The offence code under which the offence comes for computing purposes classes the offence as ‘child abduction’ (by other person). Which means a person other than a parent of the child [sic].
... Perhaps you would be good enough to contact me ... in order that we might discuss the matter and perhaps find some means of ameliorating the consequences of the information given above.”
9. By letter dated 6 December 2006, Detective Superintendent Thomson of the Northern Ireland Police Service in December 2006 confirmed that he would not delete the caution from police records. However he proposed, with the applicant’s agreement:
“... to add a comment that the incident was domestically related, and in any vetting context [the applicant] should be approached for an explanation regarding the conviction”.
10. In February 2007, the applicant was interviewed for a position as a Family Support Worker within the Trust. The interview letter advised that the position was a regulated one and that vetting would be carried out.
On 29 March 2007 the applicant was informed that she had been unsuccessful. No reasons were provided.
2. Domestic proceedings
11. The applicant wished to contest the retention of the caution on her criminal records and sought legal advice. Her solicitor informed her in May 2006 that “there does not appear to be any action which you can take in relation to [the] removal of this caution”.
12. In January 2007, the Northern Ireland Legal Services Commission (“the LSC”) refused an application for legal aid, made by a different solicitor, to review the Trust’s decision not to employ the applicant. The solicitor informed the applicant that she could appeal the LSC’s decision at a cost of GBP 500 but the applicant could not afford to instigate legal proceedings without public funding.
B. Relevant domestic law and practice
1. The aims and nature of a caution
13. The aims of cautions are set out at paragraph 8 of Home Office Circular 016/2008: Simple Cautioning – Adult Offenders, which applies to all decisions relating to simple cautions from 10 July 2008 (“the Circular”):
“8. The aims of the simple caution are to:
* deal quickly and simply with less serious offences where the offender has admitted the offence;
* divert offenders where appropriate from appearing in the criminal courts;
* record an individual’s criminal conduct for possible reference in future criminal proceedings or relevant security checks; and
* reduce the likelihood of re-offending.”
14. Paragraphs 33–34 of the Circular state:
“34. A simple caution is not a form of sentence (which only a court can impose), nor is it a criminal conviction. It is, however, an admission of guilt and forms part of an offender’s criminal record. It may influence how they are dealt with, should they come to the notice of the police again and may also be cited in court in any subsequent proceedings.
35. A simple caution will appear on a subject access request made by the offender under the Data Protection Act 1998. It may also be disclosed for employment vetting purposes, licensing purposes or to inform judicial appointments.”
2. Retention of caution data in police records
(a) The statutory background
15. Section 27(4) of the Police and Criminal Evidence Act 1984 (“PACE 1984”) provides that:
“The Secretary of State may by regulation make provision for recording in national police records convictions for such offences as are specified in the regulations.”
16. Prior to 1 June 2000, the relevant regulations in force were the National Police Records (Recordable Offences) Regulations 1985. The regulations allowed for the recording in the Police National Computer (“PNC”) of convictions in respect of offences punishable with imprisonment, and other named offences.
17. On 1 June 2000, the National Police Records (Recordable Offences) Regulations 2000 entered into force, revoking the 1985 regulations. The 2000 regulations extended the scope of the PNC, allowing the recording not only of convictions but also of cautions, reprimands and warnings. Regulation 3 provides:
“(1) There may be recorded in national police records–
(a) convictions for; and
(b) cautions, reprimands and warnings given in respect of,
any offence punishable with imprisonment and any offence specified in the Schedule to these Regulations.”
(b) Policy and practice
(i) Policy and practice prior to 2004
18. Under the Association of Chief Police Officers (“ACPO”) Code of Practice 1995 (“the 1995 ACPO Code”), in cases of conviction of an offence that carried the possibility of imprisonment, a record of the conviction had to be retained for a period of twenty years. Exceptions to this included cases where the conviction was for an offence against a child or young person, where the record was to be retained until the offender was 70 years old, subject to a minimum 20-year retention period; and cases involving rape, where the record was to be retained for the life of the offender.
19. Records of cautions (assuming there were no other convictions or further cautions) were to be retained for a five-year period.
20. The 1995 ACPO Code was updated in 1999 and subsequently replaced by another code of practice in 2002. Neither instrument substantially altered the provisions regarding retention of data relating to cautions.
(ii) The Bichard Inquiry Report 2004
21. Following the murders of two young girls in August 2002 by a caretaker employed at a local school, a review of the United Kingdom’s police forces was announced by the Home Secretary. An inquiry was set up, to be conducted by Sir Michael Bichard.
22. The Bichard Inquiry Report (“the Bichard report”) was published in June 2004. It reviewed current practice as regards retention of data on convictions and cautions and concluded (at paragraph 4.41) that “there were a number of problems with the review, retention or deletion of records.” The report recommended that:
“A Code of Practice should be produced covering record creation, review, retention, deletion and information sharing. This should be made under the Police Reform Act 2002 and needs to be clear, concise and practical. It should supersede existing guidance.”
(iii) Code of Practice on the Management of Police Information 2005
23. In July 2005, the Home Secretary issued a Code of Practice on the Management of Police Information (“MOPI Code”). The MOPI Code came into effect on 14 November 2005 and applied directly to police forces in England and Wales. It was available for adoption by other police forces. It is not clear whether it has been adopted by the Police Service of Northern Ireland.
24. Under the heading “Retention and deletion of police information”, the MOPI Code states:
“4.6.1 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.
4.6.2 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 ways which cannot be dealt with by amending the record; or
b. it is no longer considered that the information is necessary for police purposes.”
25. Under the heading “Sharing of police information outside the UK police service”, the MOPI Code notes:
“4.8.1 Chief officers of police will continue to comply with any statutory obligations to share information with bodies other than police forces in England and Wales.
4.8.2 In addition, chief officers may arrange for other persons or bodies within the UK or overseas to receive police information where the chief officer is satisfied that it is reasonable and lawful to do so for the purposes ... [of protecting life and property, preserving order, preventing the commission of offences, bringing offenders to justice and discharging any duty or responsibility of the police arising from common or statute law]. In deciding what is reasonable, chief officers must have regard to any guidance issued under this Code.”
iv. Guidance on the Management of Police Information 2006 and 2010
26. In 2006 ACPO published Guidance on the Management of Police Information. A second edition was published in 2010 (“the MOPI Guidance”). Chapter 7 of the MOPI Guidance deals with review, retention and disposal of police information. It notes at the outset that:
“7.2.1 ... Public authorities, including police forces, must act in a way that complies with the European Convention on Human Rights (ECHR) and the Human Rights Act 1998. In relation to record retention this requires a proportionate approach to the personal information held about individuals. The decision to retain personal records should be proportionate to the person’s risk of offending, and the risk of harm they pose to others and the community. A higher proportionality test should be met in order to retain records about relatively minor offending.”
27. The MOPI Guidance sets out the framework for decision-making on retention of police information. It provides that records should be kept for a minimum period of six years, beyond which time there is a requirement to review whether retention of the information is necessary. Relevant questions are whether there is evidence of a capacity to inflict serious harm, whether there are concerns relating to children or vulnerable adults, whether the behaviour involved a breach of trust, whether there is evidence of links or associations which might increase the risk of harm, whether there are concerns as to substance misuse and whether there are concerns that an individual’s mental state might increase the risk. In any review, the MOPI Guidance notes that there is a presumption in favour of retention of police information provided that it is not excessive, is necessary for a policing purpose, is adequate for that purpose and is up to date.
28. The MOPI Guidance also contains a review schedule based on the seriousness of offences. Under the review schedule, information is divided into four categories. Group 1 is called “Certain Public Protection Matters”, which includes information relating to individuals who have been convicted, acquitted, charged, arrested, questioned or implicated in relation to murder or a serious offence as specified in the Criminal Justice Act 2003 (or historical offences that would be charged as such if committed today). Such information should only be disposed of if it is found to be entirely inaccurate or no longer necessary for policing purposes. The MOPI Guidance continues:
“Forces must retain all information relating to certain public protection matters until such time as a subject is deemed to have reached 100 years of age (this should be calculated using the subject’s date of birth). There is still a requirement, however, to review this information regularly to ensure that it is adequate and up to date. This must be done every ten years ...
Due to the seriousness of this group, no distinction is made between the type or classification of information that can be retained for 100 years; information retained under this grouping can include intelligence of any grading.
There may be extreme cases where the retention of records relating to certain public protection matters would be disproportionately injurious to the individual they are recorded against. For example, an individual arrested on suspicion of murder for a death that is subsequently found to have been the result of natural causes, or an entirely malicious accusation that has been proven as such, would both generate records that can only be adequate and up to date if they reflect what actually happened. Particular care must be exercised in disclosing any such records to avoid unnecessary damage to the person who is the subject of the record.”
29. The other categories are “Other Sexual, Violent or Serious Offences (Group 2), in respect of which information should be retained for as long as the offender or suspected offender continues to be assessed as posing a risk of harm; “All Other Offences” (Group 3), in respect of which police forces may choose to use a system of time-based, automatic disposal if it is considered that the risk of disposal is outweighed by the administrative burden of reviewing the information or the cost of retaining it; and “Miscellaneous” (Group 4), which covers a variety of other cases and entails different guidance on retention in each one.
(v) Retention Guidelines for Nominal Records on the Police National Computer 2006
30. The ACPO Retention Guidelines for Nominal Records on the Police Computer 2006 (“the 2006 Guidelines”) came into effect on 31 March 2006. They form part of the guidance issued under the MOPI Code.
The 2006 Guidelines explain that:
“1.3 The Retention Guidelines are based on a format of restricting access to PNC data, rather than the deletion of that data.”
They continue:
“...the Nominal records will now contain ‘Event Histories’ to reflect the fact that the subject may have been Convicted (including cautions, reprimands and warnings), dealt with by the issue of a Penalty Notice for Disorder, Acquitted, or dealt with as a ‘CJ Arrestee’ [a person who has been arrested for a recordable offence under the Criminal Justice Act 2003 but in respect of whom no further action was taken].”
31. The general principle set out in paragraph 3.1 of the 2006 Guidelines is that when a nominal record is created or updated on the PNC by virtue of an individual being convicted, receiving a Penalty Notice for Disorder, being acquitted or being a CJ Arrestee, the record will contain the relevant personal data together with details of the offence which resulted in the creation of the record. The record will be retained on PNC until that person is deemed to have attained 100 years of age. Recordable offences are split into categories “A”, “B” and “C” depending on the seriousness of the offence, with category A being the most serious offences. These categories mirror Groups 1, 2 and 3 set out in the MOPI Guidance.
3. Disclosure of a caution
(a) The statutory background
32. Part V of the Police Act 1997 (“the 1997 Act”) establishes the legislative framework for the disclosure of criminal records by the Criminal Records Bureau (“the CRB”). The CRB was established in March 2002 and serves as an agent of the Home Office to provide wider access to criminal record information.
33. When the applicant’s caution was issued, sections 113 and 115 of the 1997 Act provided for the disclosure of a criminal record certificate (“CRCs”) and the disclosure of an enhanced criminal record certificate (“ECRC”) respectively. These sections were repealed and replaced in April 2006 by sections 113A and 113B, in almost identical terms.
34. Section 113A deals with CRCs and provides, in so far as relevant, as follows:
“113A Criminal record certificates
(1) The Secretary of State must issue a criminal record certificate to any individual who–
(a) makes an application in the prescribed manner and form, and
(b) pays in the prescribed manner any prescribed fee.
(2) The application must–
(a) be countersigned by a registered person, and
(b) be accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question.
(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.
(4) The Secretary of State must send a copy of a criminal record certificate to the registered person who countersigned the application.
...”
35. Section 113A(6) defines “central records” as such records of convictions and cautions held for the use of police forces generally as may be prescribed; and “relevant matter” as including a caution.
36. Section 113B deals with ECRCs and provides, in so far as relevant, as follows:
“(1) The Secretary of State must issue an enhanced criminal record certificate to any individual who–
(a) makes an application in the prescribed manner and form, and
(b) pays in the prescribed manner any prescribed fee.
(2) The application must–
(a) be countersigned by a registered person, and
(b) be accompanied by a statement by the registered person that the certificate is required for a prescribed purpose.
(3) An enhanced 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 and any information provided in accordance with subsection
(4), or
(b) states that there is no such matter or information.
(4) Before issuing an enhanced criminal record certificate the Secretary of State must 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 the statement under subsection (2), and
(b) ought to be included in the certificate.
(5) The Secretary of State must also 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 the statement under subsection (2),
(b) ought not to be included in the certificate, in the interests of the prevention or detection of crime, and
(c) can, without harming those interests, be disclosed to the registered person.
(6) The Secretary of State must send to the registered person who countersigned the application–
(a) a copy of the enhanced criminal record certificate, and
(b) any information provided in accordance with subsection (5).
(7) The Secretary of State may treat an application under this section as an application under section 113A if in his opinion the certificate is not required for a purpose prescribed under subsection (2).
...”
37. Section 122 of the Police Act 1997 empowers the Secretary of State to issue codes of practice relating to disclosure under Part V of the Act.
(b) Policy and practice
38. The MOPI Guidance explains the circumstances in which police information will be disclosed:
“6.3.1. ... The Police Act 1997 creates a statutory scheme for the disclosure of criminal records and police information on potential employees to prospective employers. The CRB is responsible for the scheme and for ensuring that employers have sufficient information to make a judgment on the suitability of a potential employee to work with children or vulnerable adults.”
39. As noted above, the 2006 Guidelines work on the basis of restricting access to police information rather than deleting data. They set strict time periods after which relevant data will “step down” and only be open to inspection by the police. The aim is to ensure that following step down, other users of the PNC will be unaware of the existence of the relevant records, save in cases of an enhanced criminal records check by the CRB. For example, the 2006 Guidelines state, at paragraph 4.19, that:
“4.19 In the case of an adult who is dealt with by way of a caution in respect of an offence listed in category ‘A’, the conviction history will ‘step down’ after a clear period of 10 years, and thereafter only be open to inspection by the police.”
40. Paragraph 4.32 clarifies that chief officers are the “data controllers” (within the meaning of the Data Protection Act 1998) of all PNC records, including DNA and fingerprints associated with the entry, created by their forces and they have the discretion in exceptional circumstances to authorise the deletion of any such data. Appendix 2 of the 2006 Guidelines outlines the procedure to be followed in deciding whether a particular case will be regarded as “exceptional” and states:
“Exceptional cases by definition will be rare. They might include cases where the original arrest or sampling was found to be unlawful. Additionally, where it is established beyond reasonable doubt that no offence existed, that might, having regard to all the circumstances, be viewed as an exceptional circumstance.”
4. The Data Protection Act 1998
41. The Data Protection Act (“the DPA 1998”) was adopted on 16 July 1998. The main provisions of the Act entered into force on 1 March 2000.
42. The Act stipulates that the processing of personal data is subject to eight data protection principles listed in Schedule 1. Under the first principle personal data shall be processed fairly and lawfully and, in particular shall not be processed unless (a) at least one of the conditions in Schedule 2 is met; and (b) in case of sensitive personal data, at least one of the conditions in Schedule 3 is also met. Schedule 2 contains a detailed list of conditions, and provides inter alia that the processing of any personal data is necessary for the administration of justice or for the exercise of any other functions of a public nature exercised in the public interest by any person (paragraphs 5(a) and (d)). Schedule 3 contains a more detailed list of conditions, including that the processing of sensitive personal data is necessary for the purpose of, or in connection with, any legal proceedings (paragraph 6(a)), or for the administration of justice (paragraph 7(a)), and is carried out with appropriate safeguards for the rights and freedoms of data subjects (paragraph 4(b)). Section 29 provides that personal data processed for the prevention or detection of crime are exempt from the first principle except to the extent to which it requires compliance with the conditions in Schedules 2 and 3.
43. The third principle provides that personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.
44. The fifth principle stipulates that personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.
45. Under section 1 of the DPA 1998, “personal data” means data which relate to a living individual who can be identified from those data or from those data together with other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual. Section 2 of the Act defines “sensitive personal data” as personal data consisting, inter alia, of information as to the commission or alleged commission by him of any offence, or 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.
46. The Information Commissioner created pursuant to the Act (as amended) has an independent duty to promote the following of good practice by data controllers and has power under section 40 of the Act to make orders (“enforcement notices”) in this respect. Section 47 of the Act makes it a criminal offence not to comply with an enforcement notice. Section 48 of the Act gives data controllers the right to appeal against an enforcement notice to the Information Tribunal, if an enforcement notice raises a point of law. Section 13 sets out a right to claim damages in the domestic courts in respect of contraventions of the Act.
5. Judicial consideration
(a) R (X) v Chief Constable of the West Midlands Police [2004] EWCA Civ 1068
47. In R (X) v Chief Constable of the West Midlands Police, the Court of Appeal considered the question of the disclosure of additional information in the context of an enhanced criminal records check. The appellant had applied for a job as a social worker and had no previous convictions. He had been charged with indecent exposure, but the proceedings were discontinued when the alleged victim failed to identify him. The social work agency which was dealing with his job application applied for an ECRC. The Chief Constable, as he was required to do, issued an ECRC to the agency relating to the applicant. It contained details of the allegations of indecent exposure under the heading “other relevant information”.
48. On the question of the balance between competing interests, Lord Woolf indicated (at paragraph 36) that:
“Having regard to the language of section 115 [the predecessor of section 113B], the Chief Constable was under a duty to disclose if the information might be relevant, unless there was some good reason for not making such a disclosure.”
49. He continued (at paragraph 37):
“This was obviously required by Parliament because it was important (for the protection of children and vulnerable adults) that the information should be disclosed even if it only might be true. If it might be true, the person who was proposing to employ the claimant should be entitled to take it into account before the decision was made as to whether or not to employ the claimant. This was the policy of the legislation in order to serve a pressing social need. In my judgment it imposes too heavy an obligation on the Chief Constable to require him to give an opportunity for a person to make representations prior to the Chief Constable performing his statutory duty of disclosure.”
50. On the application of Article 8, assuming that it was engaged, he noted (at paragraph 41):
“...on that assumption, how can the Chief Constable’s decision to disclose be challenged under article 8. As already indicated, the Chief Constable starts off with the advantage that his statutory role is not in conflict with article 8, because the statute meets the requirements of article 8(2). It follows also, that as long as the Chief Constable was entitled to form the opinion that the information disclosed might be relevant, then absent any untoward circumstance which is not present here, it is difficult to see that there can be any reason why the information that ‘might be relevant’, ought not to be included in the certificate. I accept that it is possible that there could be cases where the information should not be included in the certificate because it is disproportionate to do so; the information might be as to some trifling matter; it may be that the evidence made it so unlikely that the information was correct, that it again would be disproportionate to disclose it. These were not, in my judgment, the situations on the facts before the Chief Constable.”
(b) Chief Constable of Humberside & Others v The Information Commissioner & Another [2009] EWCA Civ 1079
51. The relationship between disclosure, rehabilitation of offenders and employment vetting, was considered by the Court of Appeal in its judgment in Chief Constable of Humberside & Others v The Information Commissioner & Another, handed down on 19 October 2009. The question for examination by the court was whether the principles of the Data Protection Act 1998, namely principle 3 (personal data shall be adequate relevant and not excessive) and principle 5 (personal data shall not be kept for longer than necessary), required the police to delete certain old convictions from the PNC. Waller LJ noted at the outset:
“1. ... The complaint in each case follows the disclosure of the convictions pursuant to a request by the ... CRB... or, in one case, a request by one of the individuals herself, and it is important to emphasise at the outset that the complaint about retention flows in reality not from the retention itself but from the fact that, if retained, disclosure may follow. In respect of each of those convictions the Information Tribunal (the IT) has upheld the view of the Information Commissioner (the IC) that they should be deleted. However the ramifications are far wider than these five cases since, if these convictions must be deleted and if the police are to treat people consistently, the application of any viable system of weeding would probably lead to the deletion of around a million convictions.”
52. He clarified the effect of the “stepping down” policy on disclosure in the context of criminal records checks, noting:
“3. ... it seems that both the Police and the IT understood that the result of stepping down would be that in certain circumstances the CRB would not have access to ‘stepped down’ convictions when preparing ‘standard disclosure certificates’ (as opposed to ‘enhanced disclosure certificates’) under Part V of the Police Act 1997. It is now accepted that that is not accurate. Under Part V of the 1997 Act ‘stepped down’ convictions are required to be revealed even on ‘standard disclosure certificates’, and thus although ‘stepping down’ prevents disclosure in many circumstances to persons other than the police, it does not prevent disclosure by the police in many others including the circumstances under which disclosure was made of four of the convictions the subject of this appeal.”
53. As to the uses made of PNC information, Waller LJ noted that these included use for employment vetting, explaining:
“28 b. Employment vetting and disclosure to the CRB. The effect of Part V Sections 113 to 114 of the Police Act 1997 is that standard and enhanced certificates have to be provided by the Home Office, who obtain the information through the CRB from the police – pursuant to Section 119. The CRB is an executive agency of the Home Office, which in practice carries out the Secretary of State’s functions under Part V. The certificates will contain details of spent convictions if and insofar as the employer requesting the same falls within the exceptions to the [Rehabilitation of Offenders Act 1974]. This provides an important protection to employers who may ask a would-be employee or indeed an employee whether they have ever been convicted of dishonesty, where that employee is not protected by section 4 of the 1974 Act from revealing spent convictions ... Some emphasis is placed by [counsel for the intervenor] that no statutory obligation is placed on the police to retain data under the Police Act 1997, but on any view Part V of the Act seems to recognise that the data will be there to be provided.”
54. Taking as an example the case of one of the individuals concerned, Waller LJ considered the purposes for which the data had been recorded:
“35. ...it seems to me to be clear 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. ‘Rendering assistance to the public in accordance with force policies’ clearly covers the roles the police seek to perform in those areas and if there was any doubt about it the recipients include ‘Employers’ ‘the courts’ and ‘law enforcement agencies’.”
55. He continued:
“36. If one then poses the question whether the Data being retained is excessive or being retained for longer than necessary for the above purposes there is, it seems to me, only one answer, since for all the above a complete record of convictions spent and otherwise is required. That seems to me to be a complete answer to the appeal ...”
56. Even if a narrower approach to police purposes were adopted, Waller LJ considered that the retention of the data was lawful under the DPA 1998. He noted:
“43. ... 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 ... It is simply the honest and rationally held belief that convictions, however old and however minor, can be of value in the fight against crime and thus the retention of that information should not be denied to the police.”
57. In conclusion on the general issues raised, he indicated:
“I emphasise the word ‘retention’ because if there is any basis for complaint by the data subjects in this case, it seems to me to relate to the fact that in certain circumstances this information will be disclosed, but that is because Parliament has made exceptions to the Rehabilitation of Offenders Act. What is more, the circumstances in which there will be disclosure are circumstances in which the Data Subject would be bound to give the correct answer if he or she were asked. It is not as it seems to me the purpose of the 1998 [Data Protection] Act to overrule the will of Parliament by a side wind.”
58. As to the complaint of one of the individuals concerned, S.P., that she had been assured in 2001 that the reprimand she had received aged thirteen would be removed from her record when she was eighteen if she did not get into anymore trouble and that the retention of the reprimand on the PNC after her eighteenth birthday was therefore unfair under the first data protection principle that personal data shall be processed fairly and lawfully, Waller LJ held:
“It seems to me that if it is fair to retain convictions under the new policy it does not become unfair to do so simply because the data subject was told of what the policy then was when being convicted or reprimanded. Furthermore, the deletion of this reprimand leading (as it would have to) to deletion of many others would be likely to prejudice the prevention and detection of crime and the apprehension or prosecution of offenders. The court and the CPS need the full information, never mind the fact the police are of the view that for their operational purposes they need the same.”
59. Finally, on the argument raised by the individuals that retention of the data violated Article 8 of the Convention, Waller LJ found:
“50. ... I am not persuaded that Article 8(1) is engaged at all in relation to the retention of the record of a conviction. Disclosure might be another matter but this appeal is not about disclosure. Even if that were wrong, if my conclusions so far are right, the processing is in accordance with the law and necessary in a democratic society. I do not think any extra point arises by reference to Article 8 on its own and I mean no disrespect in dealing with this aspect so shortly.”
60. As to the Article 8 question, Carnwath LJ noted as follows:
“78. Finally with regard to the Human Rights Convention, it is significant that the [Data Protection] Directive is itself specifically linked to the need to respect ‘fundamental rights and freedoms, notably the right to privacy...’, and that it refers in that respect to the European Convention on Human Rights (Preamble (2), (10)). This suggests that the maintenance of such a complete register of convictions, as implicitly endorsed by Article 8(5) of the Directive, should not normally raise any separate issues under the Convention.”
61. He referred to “considerable doubt” as to whether recording the mere fact of a conviction could ever engage Article 8 in any case, distinguishing S. and Marper on the basis that it concerned the data of unconvicted persons and was accordingly no authority for the proposition that a record of the mere fact of a conviction engaged Article 8.
(c) R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3
62. In its judgment in R (L) v Commissioner of Police of the Metropolis, handed down on 29 October 2009, the Supreme Court considered disclosure of police information in the context of an enhanced criminal record check. In that case, the appellant had secured a job as a playground assistant and the school required an enhanced criminal records certificate to which the appellant consented. The ECRC disclosed that the appellant had been suspected of child neglect and non-cooperation with social services. The appellant was not charged with, or convicted of, any offence, nor did she receive a caution. Her employment was subsequently terminated and she brought judicial review proceedings, arguing that the disclosure of the information had violated her rights under Article 8. At issue was whether the requirement in the 1997 Act that chief officers provide information which “might be relevant” and “ought to be disclosed” when an ECRC is requested, was proportionate.
63. The court accepted that disclosure of police information amounted to an interference for the purposes of Article 8. However Lord Hope (at paragraph 41), for the majority, considered that the legislation itself did not contravene Article 8, provided that it was interpreted and applied in a way that was proportionate. He continued:
“42. So the issue is essentially one of proportionality. On the one hand there is a pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the applicant’s right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place. As the many additions that have been made to the list of matters in section 115(5) show, the use that is being made of the requirement to obtain an ECRC has increased substantially since the scheme was first devised. The number of disclosures of information by means of ECRCs has exceeded 200,000 for each of the last two years (215,640 for 2007/2008; 274,877 for 2008/2009). Not far short of ten per cent of these disclosures have had section 115(7) [now section 113B(4) – see above] information on them (17,560 for 2007/2008; 21,045 for 2008/2009). Increasing use of this procedure, and the effects of the release of sensitive information of this kind on the applicants’ opportunities for employment or engaging in unpaid work in the community and their ability to establish and develop relations with others, is a cause of very real public concern ...”
64. He considered that the effect of the approach that was taken to the issue in R (X) v Chief Constable of the West Midlands Police had been to tilt the balance against the applicant too far and proposed that the relevant guidance to officers making a decision on disclosure under the provisions should be amended:
“45. ...so that the precedence that is given to the risk that failure to disclose would cause to the vulnerable group is removed. It should indicate that careful consideration is required in all cases where the disruption to the private life of anyone is judged to be as great, or more so, as the risk of non-disclosure to the vulnerable group. The advice that, where careful consideration is required, the rationale for disclosure should make it very clear why the human rights infringement outweighs the risk posed to the vulnerable group also needs to be reworded.”
65. He concluded that it should no longer be assumed that the presumption was for disclosure unless there was a good reason for not doing so.
(d) R (F and another) v Secretary of State for the Home Department [2010] UKSC 17
66. In R (F and another) v Secretary of State for the Home Department, the respondents were convicted sex offenders subject to notification requirements under section 82 of the Sexual Offences Act 2003 (SOA 2003), whereby all those sentenced to 30 months’ imprisonment or more for a sexual offence are registered on the sex offenders register and subject to a lifelong duty to notify police of their living and travelling arrangements, with no right for review. The question in the appeal was whether the absence of any right to review rendered the notification requirements disproportionate to the legitimate aims they sought to pursue and thus incompatible with Article 8 of the Convention. Lord Phillips noted:
“41. The issue in this case is one of proportionality. It is common ground that the notification requirements interfere with offenders’ article 8 rights, that this interference is in accordance with the law and that it is directed at the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others. The issue is whether the notification requirements, as embodied in the 2003 Act, and without any right to a review, are proportionate to that aim. That issue requires consideration of three questions. (i) What is the extent of the interference with article 8 rights? (ii) How valuable are the notification requirements in achieving the legitimate aims? and (iii) To what extent would that value be eroded if the notification requirements were made subject to review? The issue is a narrow one. The respondents’ case is that the notification requirements cannot be proportionate in the absence of any right to a review. The challenge has been to the absence of any right to a review, not to some of the features of the notification requirements that have the potential to be particularly onerous.”
67. He found that the notification requirements were capable of causing significant interference with Article 8 rights. However, he continued (at paragraph 51):
“...This case turns, however, on one critical issue. If some of those who are subject to lifetime notification requirements no longer pose any significant risk of committing further sexual offences and it is possible for them to demonstrate that this is the case, there is no point in subjecting them to supervision or management or to the interference with their article 8 rights involved in visits to their local police stations in order to provide information about their places of residence and their travel plans. Indeed subjecting them to these requirements can only impose an unnecessary and unproductive burden on the responsible authorities. We were informed that there are now some 24,000 ex-offenders subject to notification requirements and this number will inevitably grow.”
68. He concluded:
“56. No evidence has been placed before this court or the courts below that demonstrate that it is not possible to identify from among those convicted of serious offences, at any stage in their lives, some at least who pose no significant risk of re-offending. It is equally true that no evidence has been adduced that demonstrates that this is possible. This may well be because the necessary research has not been carried out to enable firm conclusions to be drawn on this topic. If uncertainty exists can this render proportionate the imposition of notification requirements for life without review under the precautionary principle? I do not believe that it can.
57. ... I think that it is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified. As the courts below have observed, it is open to the legislature to impose an appropriately high threshold for review. Registration systems for sexual offenders are not uncommon in other jurisdictions. Those acting for the first respondent have drawn attention to registration requirements for sexual offenders in France, Ireland, the seven Australian States, Canada, South Africa and the United States. Almost all of these have provisions for review. This does not suggest that the review exercise is not practicable.
58. For these reasons I have concluded that ... the notification requirements constitute a disproportionate interference with article 8 rights because they make no provision for individual review of the requirements.”
69. The Supreme Court issued a declaration that section 82 of the SOA 2003 was incompatible with the Convention.
COMPLAINTS
The applicant complains under Article 7 of the Convention that a heavier penalty has now been imposed than the one which was applicable at the time the criminal offence was committed due to the change in policy requiring retention of the information. She also complains generally about the retention and disclosure of her data.
QUESTIONS TO THE PARTIES
(a) in April 2000, when the incident occurred;
(b) on 17 November 2000, the date on which the caution was administered; and
(c) as currently in force.