Retention and disclosure of police caution data infringe Article 8 – Charles Bourne

The European Court of Human Rights yesterday handed down a Chamber judgment in declaring that the arrangements for the indefinite retention of data relating to a person’s caution in a criminal matter and for the disclosure of such data in criminal record checks infringe Article 8 of the ECHR.

Although the Court recognised that there might be a need for a comprehensive record of data relating to criminal matters, the indiscriminate and open-ended collection of criminal record data was unlikely to comply with Article 8 in the absence of clear and detailed statutory regulations clarifying the safeguards applicable and governing the use and disposal of such data, particularly bearing in mind the amount and sensitivity of the data.

The case arose from a family dispute in Northern Ireland in the course of which the applicant, a grandmother, took her grandson away from his parents for two days before returning him unharmed. This resulted in her receiving a caution for child abduction in November 2000. In 2003 the police advised her that her caution would remain on record for only five years, i.e. until 2005. However, following the Soham murders and the Bichard report, there was a change of policy whereby any convictions and cautions where the victim was a child would be kept on record for the offender’s lifetime. 

Until 1 April 2008, requests for disclosure of criminal record data in Northern Ireland were made on a consensual basis. Disclosure took place in accordance with well-established common law powers of the police. Provisions of the Police Act 1997, introduced in England and Wales in 2006, were applied to Northern Ireland in 2008. Section 113A required a criminal record certificate to be issued on request and payment of a fee, to include details of all cautions and convictions whether spent or not, if the request was for stated purposes including that of assessing the suitability of persons to work with children and vulnerable adults.

Disclosure of the applicant’s caution caused her to be turned down for jobs as a family support worker in the social care field. She complained that the indefinite retention and disclosure of the caution data infringed her ECHR rights.

The Court noted that both the storing of information relating to an individual’s private life and the release of such information come within the scope of Article 8(1). The question was whether the police records contained data relating to the applicant’s “private life” and, if so, whether there had been an interference with her right to respect for private life. The data was both “personal data” and “sensitive personal data” within the meaning of the Data Protection Act 1998 and “personal data” in a special category under the Council of Europe’s Data Protection Convention. Although a person’s criminal record was public information, systematic storing of data in central records made them available for disclosure long after the event. As a conviction or caution receded into the past, it became a part of the person’s private life which had to be respected. The applicant’s voluntary disclosure of the caution to her prospective employer did not deprive her of the protection afforded by the Convention where employers were legally entitled to insist on disclosure. Thus Article 8 applied, and the retention and disclosure of the caution amounted to an interference.

To decide whether the interference could be justified under Article 8 § 2, the Court considered the legislation and policy applicable at the relevant time and since. It highlighted the absence of a clear legislative framework for the collection and storage of data and the lack of clarity as to the scope, extent and restrictions of what in Northern Ireland were originally common law powers of the police to retain and disclose caution data. There was also no mechanism for independent review of a decision to retain or disclose data. The provisions of the Police Act 1997 which came into force in Northern Ireland on 1 April 2008 created some limited filtering arrangements in respect of disclosures. However, in providing for mandatory disclosure under section 113A, no distinction was made on the basis of the nature of the offence, the disposal in the case, the time which had elapsed since the offence or the relevance of the data to the employment sought.

The Court decided that the cumulative effect of these matters was an insufficiency of safeguards in the system to ensure that data relating to the applicant’s private life had not been, and would not be, disclosed in violation of her right to respect for her private life, and therefore the retention and disclosure of data was not “in accordance with the law” for the purpose of Article 8 § 2. The Court therefore did not go on to determine whether the interference was “necessary in a democratic society” for one of the stated aims, or whether there had been any infringement of Articles 6 and 7.

This post by 11KBW’s Charles Bourne originally appeared on the Panopticon Blog and is reproduced here with permission and thanks.