Time to let go

Whatever happened to rehabilitation? The decision of the Court of Appeal in Chief Constable of Humberside v The Information Commissioner [2009] EWCA Civ 1079 demonstrates that in reality no conviction is ever truly spent. The well-established belief that minor criminal convictions can be wiped out by time and repentance, and that mistakes made in youth need not dog one through the years of respectability which follow, has no foundation in fact.

The case was an appeal by five chief constables against the judgment of the Information Tribunal, which in July 2008 had upheld the information commissioner's decision to issue enforcement notices under section 40 of the Data Protection Act ordering the police forces to delete the details of spent convictions accrued by five separate applicants.

The applicants had all been in circumstances which required a Criminal Records Bureau check '“ the subsequent trawl through the Police National Computer discovered grave crimes recorded against them. Applicant HP was fined £15 for theft at a juvenile court in 1984 when he was 16. Applicant SP was reprimanded for common assault in 2001 when she was 13 and punched and kicked a 15-year-old girl. Applicant WMP when aged 15 in 1977 tried to fiddle free games from an amusement arcade roulette machine by inserting metal blanks into it '“ he was conditionally discharged for attempted theft, and fined £25 for criminal damage to the machine. Applicant GMP was conditionally discharged for theft when she was 18, in 1983, and applicant NP was fined for obtaining property by deception in 1981 when he was 20 years old. Obviously, none of the applicants had been in any trouble since those dates.

Under the Rehabilitation of Offenders Act 1974, convictions are spent after time limits defined by the sentence for them; for example, fines are spent after five years if the offender was 18, two and a half years if under 18, and conditional discharges at the end of their period of imposition.

Section 4 of the Rehabilitation of Offenders Act paints forgiveness on a broad canvass: rehabilitated persons shall be treated in law for all purposes as a person who has never been convicted of any criminal offence (evidence of such convictions are inadmissible in court) and possession of or failure to disclose a spent conviction shall not be a proper ground for disciplining, dismissing or excluding a person from any office or employment.

Not so picture perfect

Section 7 of the Act shrinks that picture into a miniature, allowing evidence of spent convictions in criminal, armed service, Children Act, adoption and any other proceedings where the ex-offender is a party or a witness. And the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 reduces the employment protection aspects to vanishing point. Certain classes of employment have always involved a criminal record check '“ teachers and police officers being obvious examples. However, this order, regularly updated and amended, allows over 13,000 organisations to apply for a CRB check, and results in two million record checks a year as well as any employment involving children, emigration and nationality applications '“ its scope extends far beyond the original limits. It includes applicants for a lottery license, stewards at football matches, and directors of traffic under the Traffic Management Act 2000.

The real practical issue in this case was the use made of the data and its disclosure. However, the original applications to the information commissioner, the appeal by the police to the Information Tribunal and subsequently to the Court of Appeal, were directed at the Data Protection Act 1998 principles governing the processing and retention of personal data by police forces in their role as data controllers.

Under the Data Protection Principles (DPP) personal data must be 'adequate, relevant and not excessive in relation to the purposes for which they are collected and further processed', and should be kept for 'no longer than is necessary for the purposes for which the data were collected and for which they are further processed'. An important issue at the Court of Appeal was the ambit of 'purposes' for which the police held the data. The information commissioner argued that they should only hold the data for their core purpose '“ police operational use in the detection of crime and apprehension of offenders. Self evidently, ancient convictions for minor offences by reformed characters were unlikely to be of much use.

The chief constables, seriously concerned because losing at the Court of Appeal would, in practical terms, mean a deletion of over one million records, argued that as well as operational need their purposes included: providing criminal intelligence to other bodies; that they were obliged to keep the material to fulfil their obligations to the courts and the CPS to provide full records for disclosure, sentencing and bad character applications; for multi-agency work; and for their duties to give information in relation to employment vetting and disclosure. The circularity of the latter argument amounts to saying that they needed to keep it to give over to people who only wanted it because they kept it '“ carts and horses come to mind.

Weak justification

The justification of police operational need amounted to little more than saying it might come in handy later, either on its own or with other information which came to light '“ an example given was that the theft of a chocolate bar might be, in a historic sex abuse case, the only way of proving that a defendant was in a particular area at the time. While apparently recognising this was a bit thin, Waller J accepted the argument, saying:

'If the police say, rationally and reasonably that convictions however old and minor have a value in the work they do that should, in effect, be the end of the matter.' As for core purposes, the court held that the reasons for retention of information kept by the police was not a matter for objective analysis '“ it is for the data controller alone to determine the purpose for which the data is processed. The information commissioner can supervise and review, but not dictate as to what is kept or indeed for how long.

And how long is long? The information tribunal was told police policy was to keep records for 100 years. So, ancient parties must hang on for 100 years for a birthday telegram from Her Majesty '“ and rather longer to get a clean sheet from Her Majesty's Constabulary.