Last month there were two important and successful judicial review challenges to the systems used by police authorities to disclose and retain personal data and information. In response to the first case the Government has proposed reforms to the system for disclosing criminal records. However, these reforms do not go far enough to protect individuals’ rights to privacy and family life.
For the lay person what is at stake is control over private information – principally the way in which that is controlled, accessed and distributed by the police. For example, what information should the police provide to a prospective employer where an individual received a caution or was arrested but never charged? Or should records of arrest, harassment warnings or participation in political protest be kept on record indefinitely? Clearly, one is linked to the other, for if police databases can retain a multitude of information about a person that widens the scope of information the police can give to a third party.
In T v Chief Constable of Greater Manchester Police  EWCA Civ 25, the scheme for recording spent cautions in Enhanced Criminal Record Checks – criminal record checks now fall under Disclosure and Barring Service) was found incompatible with Article 8. T received warnings when he was 11 years old for stealing bicycles. He thought these were spent and so did not disclose them when enrolling on a sports studies course (the course involved teaching and contact with children). An ECRC revealed them. His solicitors had to intervene with the university to help him stay on the course – see HERE on the JusticeGap.
The Government argued that it was right that all matters of relevance should be disclosed even if they included spent matters. ‘Spent’ matters are either cautions, warnings, reprimands, non-custodial sentences or sentences of imprisonment under 30 months.
The Court disagreed and found it was disproportionate to disclose all spent matters regardless of their relevance to a prospective employer. Relevant factors could be offender’s age at the time, manner of disposal, time elapsed, any re-offending and nature of the work applied for. However, the system is not geared to discriminate in this way.
In response the Government has proposed a system whereby convictions resulting in a non-custodial sentence will be filtered from record checks after 11 years for adults and five and a half years for young offenders. Cautions will be filtered from record checks after six years for adults and two years for young offenders.
These changes do not go far enough. For example, the following would still show up in an application today for employment with children and vulnerable adults – an adult who received a caution for shoplifting in 2008 or a young offender who received a warning for criminal damage in 2011.
It cannot be reasonably said that regardless of the employment sought such information is necessary and proportionate to the protection of children and vulnerable person. These may represent a ‘killer blow’ to a job application as Lord Neuberger said in R(L) v Commissioner of Police of the Metropolis  UKSC 3.
When a request for a criminal record check is received, police naturally check their databases for information regarding the applicant. The Government has conceded that without a criminal conviction those databases cannot retain DNA and fingerprint records indefinitely. But another recent decision of the Court of Appeal highlighted that retention of simple data may also breach Article 8.
The Court of Appeal found two instances of retention of personal data contrary to Article 8 in Catt and T v ACPO  EWCA Civ 192. Catt said the police should destroy all reference to him in a database on extremist protest groups. Despite attending such events, he had never been convicted for any offences connected to them. T sought the removal of a harassment warning letter sent to her where she denied any such conduct.
The court said article 8 is likely to be engaged if there is a reasonable expectation of privacy and if there is processing and storage of the information on a searchable database. In the case of Catt, the court agreed that it was a legitimate aim to collect information on extremist groups to understand their activities and risk to the general public. But in Catt’s case it could not understand how his personal details assisted in any way in that aim. For T, the letter on its own was insufficient to engage article 8, but combined with the retention of a CRIS report and reasons for the warning, it did. If there were no further incidents, the court said that ‘retention of information of this kind for more than a matter of months needs to be justified by evidence’.
Whether police authorities are able or willing to discriminate in the information they retain post-Catt, is unknown. But clearly, if the new system proposed for criminal record checks discriminates only on the age of the data disclosed, then individuals are at risk of indiscriminate disclosure of information that should not be retained in the first place.
Piers von Berg
Piers is a barrister at 36 Bedford Row and practices in employment law, public law and family law. His interests are in discrimination law and human rights law, especially involving vulnerable persons and children.