Removal of information held on the Police National Computer and Police National Database
Solicitor Richard Easton discusses the law on getting your personal details removed from the PNC
All information contained on the PNC is “owned” by the Chief Constable of the force that entered it. The Retention Guidelines allow for an “exceptional case procedure” by which an individual can seek the removal of information from the PNC. As the name suggests, successful requests are likely to be rare. Generally speaking, the police will have to be persuaded that the offence to which the retained information relates did not actually take place at all, or that the requesting individual was not in fact connected with it in any way. Information will not be deleted simply because its disclosure might cause an individual difficulties in finding employment.
The Police National Database (PND) is the repository for “soft” intelligence; details of allegations and/or investigations that did not result in an arrest. The relevant ACPO guidance requires that such intelligence must be “necessary, adequate, accurate/up to date and not excessive”.
Information on the PNC and the PND may fall to be disclosed by way of a criminal records check conducted by the Disclosure and Barring Service (DBS). Ordinarily, the Rehabilitation of Offenders Act 1974 provides for certain periods of time after which convictions, cautions, reprimands and warnings become “spent” and need not be disclosed. However, the DBS deals with applications to “excepted positions” (generally those involving work with children or vulnerable adults, or licensed occupations and positions of trust).
“Standard” DBS checks disclose all spent and unspent disposals. “Enhanced” checks disclose in addition any information held on the PNC or PND which the police “reasonably believe to be relevant” for the purpose of the check and that ought to be included (s.113B(4) Police Act 1997, created by the Protection of Freedoms Act 2012). That information may include details of arrests or other intelligence. The police must abide by Home Office guidance on disclosure, as well as a joint DBS/ACPO Quality Assurance Framework. In certain circumstances, the subject of a DBS check may be entitled to make representations to the police against disclosure. In the event that such representations do not succeed, the applicant may still challenge the decision to an Independent Monitor.
From 29th May 2013 some old or minor disposals will no longer appear on DBS checks and will be “filtered out”. These recent changes were introduced following the Court of Appeal’s judgement in the case of T v Chief Constable of Greater Manchester: T had received two warnings relating to two stolen bicycles when he was 11 years old. He was otherwise of good character, and believed that his warnings were spent. However, they appeared on an enhanced check carried out when he was aged 17 and applied to work at a local football club, and on a further enhanced check when he was aged 19 and enrolling at university. The Court concluded that that “the statutory regime requiring the disclosure of all convictions and cautions relating to recordable offences is disproportionate to that legitimate aim [of protecting the public and enabling employers to assess an individual’s suitability]”. It found that the blanket approach to disclosure of all recordable offences was incompatible with an individual’s rights under Article 8 of the European Convention on Human Rights (respect for private life). Resolution of the incompatibility is a matter for Parliament.
The government’s response to the judgement was twofold. Firstly, the decision was appealed to the Supreme Court, and judgement is expected shortly (the matter was argued in December 2013). Secondly, while believing that the Court of Appeal had gone too far, the government conceded that the blanket approach could be relaxed while ensuring public protection. The filtering rules now in force allow for the non-disclosure of old convictions (11 years for adults, 5 ½ years for children, so long as they are their only offences and there was no custodial sentence) and cautions (6 and 2 years). However, there remain a large number of offences that will always be disclosed (for example sexual and violent offences).
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