Court of Appeal
Published October 22, 2009
Chief Constable of Humberside Police and Others v Information Commissioner,
Secretary of State for the Home Department intervening
Before Lord Justice Waller, Lord Justice Carnwath and Lord Justice Hughes
Judgment October 19, 2009
There could be no question of the retention of records of old minor
convictions being held in the national police computer to be either
excessive or being held for longer than necessary. It was for the data
controller to determine the purposes for which data were processed and it
was a registered purpose to hold information so that it could be supplied to
others in legitimate need such as the courts and the Crown Prosecution
Service.
The Court of Appeal so stated (Lord Justice Carnwath dissenting in part) when
allowing the appeals of the Chief Constables of Humberside Police,
Staffordshire Police, Northumbria Police, West Midlands Police and Greater
Manchester Police against a decision of the information tribunal (Mr John
Angel, chairman) ([2007] UKIT EA 2007/0096,0098,0108,0127).
The Information Commissioner had received complaints from five individuals HP,
SP, NP, WMP and GMP about the retention and disclosure of old minor
convictions. The commissioner issued five enforcement notices against five
different chief constables seeking to compel the deletion of the convictions.
On appeal, the information tribunal held that the retention of the convictions
would infringe principles of the Data Protection Act 1998 and so they should
be deleted.
Mr David N. Jones for the chief constables; Mr Timothy Pitt-Payne
for the Information Commissioner; Mr Jonathan Swift and Ms Cecilia
Ivimy for the Secretary of State for the Home Department, intervening.
LORD JUSTICE WALLER said that the issue on the appeal was whether by virtue of
the eight data protection principles in Schedule 1 to the 1998 Act the
police were bound to delete certain old convictions from the police national
computer.
The complaint in four cases followed the disclosure of convictions pursuant to
a request by the Criminal Records Bureau, and in one case, a request by the
individual herself.
It was important to emphasise at the outset that the complaint about retention
flowed in reality not from the retention itself but from the fact that, if
retained, disclosure might follow.
In respect of each of those convictions the information tribunal upheld the
view of the Information Commissioner that they should be deleted.
However, the ramifications were far wider than the five cases since, if the
convictions had to be deleted and if the police were to treat people
consistently, the application of any viable system of weeding would probably
lead to the deletion of around a million convictions.
What the tribunal was concerned with was whether two important principles
under the 1998 Act were being complied with: whether excessive data were
being retained contrary to principle 3 and whether data were being kept for
longer than necessary, breaching principle 5.
In broad terms the reasoning of the tribunal was: first, that the purposes for
which the data were held were core police purposes, namely, detection of
crime; and second, that the evidence given by the police that those
convictions had some value for those core police purposes, should be
rejected.
Mr Jones submitted that to confine “purposes” to core police purposes found no
support from the 1998 Act and was to take too narrow a view. Thus in so far
as it was a registered purpose to hold the information so that it could be
supplied to others, for example, a complete history of convictions, to the
courts and the Crown Prosecution Service, there could be no question of the
retention being held to be either excessive or being held for longer than
necessary.
In any event it was wrong for the tribunal to take upon itself the role of
deciding what was of value to the police, even for core police purposes,
unless the view of the police could be shown to be perverse.
Mr Pitt Payne sought to uphold the decision of the tribunal arguing that
police purposes could not include holding the information for others, and
thus the question of compliance with the principles under the 1998 Act
should be tested by reference to police purposes, their operational purposes.
He further submitted that the role of the Information Commissioner was to
bring an independent mind to bear on whether it was proportionate for the
police to retain old minor convictions which had little if any value to
police operational purposes.
In his Lordship’s view, Mr Pitt Payne misconstrued the 1998 Act in so far as
he suggested that if the police registered particulars, then the only
purpose for which data could be retained were core or operational police
purposes. The data controller had to specify the purpose for which data were
retained. There was no statutory constraint on any individual or company as
to the purposes for which he or it was entitled to retain data.
His Lordship would accept that the purposes must be lawful in order to comply
with the first principle but, that apart, a data controller could process
data for any purpose.
What the data controller had to do, however, was identify the purpose or
purposes in the public register so that people knew what the data were being
retained for and so that the Information Commissioner and data subjects
could test the principles under the 1998 Act by reference to the purposes
identified.
It was thus important to identify what purposes were registered. It was
important that the full details of the particulars were looked at, including
the persons to whom the data would be disclosed, in order to identify the
purposes registered by the chief constables as data controllers. It seemed
to be clear that one of the purposes for which the police retained the data
on their national computer was to be able to supply accurate records of
convictions to the CPS, the courts and indeed the Criminal Records Bureau.
If one then posed the question whether the data being retained were excessive
or being retained for longer than necessary for the above purposes there
was, it seemed to his Lordship, only one answer, since for all the above a
complete record of convictions spent and otherwise was required. That seemed
to be a complete answer to the appeal.
If a narrower approach to police purposes were justified, his Lordship’s
conclusion would still be that the tribunal went wrong in the present case.
It seemed to his Lordship that if the police said rationally and reasonably
that convictions, however old or minor, had a value in the work they do that
should, in effect, be the end of the matter.
It was simply the honest and rationally held belief that convictions, however
old and however minor, could be of value in the fight against crime and thus
the retention of that information should not be denied to the police.
His Lordship emphasised the word “retention” because if there was any basis
for complaint by the data subjects in the present case, it seemed to his
Lordship to relate to the fact that in certain circumstances that
information would be disclosed, but that was because Parliament had made
exceptions to the Rehabilitation of Offenders Act 1974.
What was more, the circumstances in which there would be disclosure were
circumstances in which the data subject would be bound to give the correct
answer if he or she were asked. It was not the purpose of the 1998 Act to
overrule the will of Parliament by a side-wind.
His Lordship would thus allow the appeal and quash the enforcement notices on
the points with which he had dealt so far.
However, there arose a separate point relating to SP. She alleged that as a
result of the assurance she received in 2001, that her reprimand would be
removed from her record when she was 18 if she did not get into any more
trouble, its retention after her eighteenth birthday was unfair under the
first principle.
It seemed to his Lordship that if it was fair to retain convictions under the
new policy it did not become unfair to do so simply because the data subject
was told of what the policy then was when being convicted or reprimanded.
Lord Justice Hughes agreed. Lord Justice Carnwath dissented on SP’s case.
Solicitors: Ms Joanne Hindley, Manchester; Mr Mark Thorogood,
Wilmslow; Treasury Solicitor.
