Data Protection Act and criminal conduct

Recent use of the Data Protection Act to justify the shortcomings of Humberside Constabulary and British Gas has given rise to an unprecedented level of debate.

Humberside Police claim they deleted computer records of numerous allegations of sexual offences committed by Ian Huntley – recently convicted of murder in the Soham trial – as retaining it would have been contrary to the principles set out in the Act (although they retained paper records of the allegations).

And following the death of an elderly couple after their gas was disconnected, British Gas explained it failed to notify Social Services on the basis that doing so would have contravened the Act.

Critics have been quick to use the above examples as demonstrating the perversity of legislation that protects human rights at the expense of human life. While this represents an extreme position, the national press has also provided examples of the Act’s perverse application.

Information Commissioner Richard Thomas has emphatically rejected suggestions that the Act was responsible for the above situations. He has also reiterated the benefits of the Act, which include protecting people from suffering detriment as a result of inaccurate or out-of-date information being retained and transferred. While in hindsight it is easy to say that common sense should have been applied, the exceptions to the general principles in the Act are not clear. Thomas has acknowledged that the Act is poorly drafted, and has promised to provide clearer explanations of its principles.

Retention by the Police of allegations of criminal activity

Under the Act, the commission or alleged commission of an offence is ‘sensitive personal data’. The Act contains various exceptions to the general principle that sensitive personal data cannot be processed without the data subject’s consent. While none of these specifically refer to allegations of criminal conduct, there are exceptions for the purposes of establishing, exercising and defending legal rights and for the administration of justice. As the police’s principal purpose is the prevention and detection of crime, there should be scope for relying on these exceptions. There is also a specific exception where the processing is necessary in connection with employment.

Personal data should be kept for no longer than is necessary for a permitted purpose. This raises difficult questions of judgement. A scurrilous allegation could cause ongoing damage, but it will not always be possible for a distinction to be made between unfounded allegations, and those which were not prosecuted because of the difficulty of getting a conviction.

What criminal record checks can potential employers make?

Many jobs require applicants to divulge any criminal convictions. While the Rehabilitation of Offenders Act 1974 does not require the disclosure of ‘spent’ convictions, this does not apply to certain professions, including those involving work with children. An enhanced disclosure request, required where a job involves supervising individuals under 18 years of age, will include a request that the chief officers of all relevant police forces provide information which they consider to be relevant. This will obviously depend on the extent to which such information has been retained.

What should an employer do if a worker is subject to serious criminal allegations?

Other than in the most extreme circumstances, the dismissal of an employee on the basis of unsubstantiated allegations will be unfair. An employer may need to conduct its own independent investigation prior to terminating employment. A conviction will not automatically justify dismissal unless the offence impacts on the employee’s ability to carry out their job.

Where the offence is serious and the employee is likely to spend a significant period on remand or a custodial sentence has been imposed, scope may exist for arguing that the contract of employment has been frustrated (incapable of performance). Tribunals have not, however, regularly accepted the concept of frustration in an employment context.

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