THE case for the retention of DNA samples of those acquitted by the criminal courts is pending before the European Court of Human Rights. But what about the retention and use of other information held by the police? The Information Tribunal has recently considered appeals which relate to the disclosure of conviction information by South Yorkshire, North Yorkshire and North Wales police. In all three cases the convictions were more than 20 years old and disclosure influenced a job application, a US citizenship application and a police complaint.
The police relied upon the rather colloquially titled “Rules for Criminal Records Weeding on Police Computer Systems” drawn up by the Association of Chief Police Officers to justify current practice. Effectively, these rules allowed the police to keep and use conviction information for the lifetime of the so-called “data subject”. However, the weeding rules do not have the force of law. The Data Protection Act 1998 contains a number of principles which must not be breached by the retention and use of data. There is a principle that data retained should not be excessive for its purpose and a principle that data should not be kept for longer than is necessary. And of course there is the right to private life which can be breached only where this is necessary, for example, in the fight against crime.
The tribunal decided that there was merit in allowing police to retain records of convictions for long periods to assist in crime prevention and detection, especially where the convictions were for crimes such as violence. It did not think that mere retention would be an unjustifiable breach of human rights nor the data protection principles. However, so far as use of the information was concerned, the tribunal was of the view that the weeding rules (which it recommended should be renamed to avoid confusion) were too blunt an instrument to comply with the law. In the cases before it the tribunal ordered that the information retained should be disclosable only to the police and not to any outside parties.
The tribunal also recommended that any national code of practice adopted by the police in relation to data protection and use should be more flexible in relation to individual cases. This would mean that issues such as the age of the offender, nature of the offence, modus operandi and specific retention periods should be considered when deciding whether to retain material and who should have access to it.
What this case shows, as also became clear during the recent Bichard inquiry, is that police data retention and use is not a particularly sophisticated art. As a result, not only do some criminals slip through the net, but other people can have very old convictions dragged up inappropriately at important times in their lives.
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Stephen Cragg is a barrister specialising in public law at Doughty Street Chambers
E-mail: s.cragg@doughtystreet.co.uk