In Chief Constable of Humberside Police & Ors v The Information Commissioner & Anor [2009] EWCA Civ 1079, the Court of Appeal has supported the appeal of the police against a ruling of the Information Tribunal that the effect of the Data Protection Act 1998 is that the police are bound to delete certain old convictions from the PNC. Had the police lost the case, it was estimated that the required weeding of the database would have involved the deletion of a million old convictions.
Lord Justice Waller, giving the lead judgment, took the view that, since 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 the CRB, it could not be argued that the data which they retained was excessive or retained for longer than necessary since each such body required a complete record of convictions spent and otherwise. He said (at [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. The examination of statistics relevant only to the question as to the risk of reoffending was not to the point. Furthermore the fact that the statistics actually showed that the risk was greater than with non-offenders is not something I would pray in aid. 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.’
The emphasis on ‘retention’ is the judge’s own and is highly significant. The judgment leaves open questions about the possible human rights implications of disclosure of the convictions and Hughes LJ (in particular) raises doubts (at [112]) about the current extent of the access rights to the database and the continuing extension of the exceptions to the Rehabilitation of Offenders Act 1974.
In his judgment, Carnwath LJ analyses the case in a different way than Waller LJ but reaches the same conclusion on the main issue. However, his is a dissenting opinion on one element (fair processing of data where a promise to remove a conviction had been breached). For both reasons, his judgment is worthy of close examination. He also makes suggestions as to the future make-up of an Information Tribunal hearing a case of the kind before the lordships. Essentially, he suggests (at [102]) that a High Court of circuit judge might have been a useful addition to the panel, especially if the judge had some experience of criminal practice.
