Criminal Records, Privacy and the Criminal Justice System: A Practical Handbook 9781526506993, 9781526507020, 9781526507013

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Criminal Records, Privacy and the Criminal Justice System: A Practical Handbook

Criminal Records, Privacy and the Criminal Justice System: A Practical Handbook Edward Jones Partner, Hodge Jones and Allen Jessica Jones Barrister, Matrix Chambers with Aidan Wills Barrister, Matrix Chambers

BLOOMSBURY PROFESSIONAL Bloomsbury Publishing Plc 41–43 Boltro Road, Haywards Heath, RH16 1BJ, UK BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc Copyright © Edward Jones and Jessica Jones 2019 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/opengovernment-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998-2019. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: PB: 978-1-52650-699-3 ePub: 978-1-52650-700-6 ePDF: 978-1-52650-701-3 Typeset by Evolution Design & Digital Ltd (Kent) To find out more about our authors and books visit www.bloomsburyprofessional.com. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters

Foreword The effect of criminal convictions can be lifelong. For example, despite the increasing recognition of a right to rehabilitation, employers remain risk adverse. There have been limited studies of this, but one study recorded approximately 10% of employers openly saying that they would never employ an ex-offender1. That is not surprising, as no employer wants to be named and shamed by the media for employing a person with a criminal record. However, it does mean that disclosure of criminal records can be a killer blow to employment prospects (as a number of judges have recognised). Disclosure of criminal convictions does not merely have an impact on a person’s employment prospects. For example, vigilantism fed by information about criminal convictions has resulted in violence. The wider a conviction is circulated, the more likely that it will be misused in this manner. Historically, there was very limited disclosure of criminal records. They would just be forgotten about. Possibly, the first case considering the legality of disclosure was R v Chief Constable of North Wales Police, ex p Thorpe [1999] QB 396. At the time that case seemed to be very extreme and unusual. However, a number of factors have made disclosure far more common in the 20 years that have followed. First, technology allows the processing of large amounts of data. In addition, notorious incidents such as the Soham murders have increased the pressure for disclosure. There are now millions of criminal records checks. This new reality of widespread disclosure means that practitioners are increasingly being approached by reformed ex-offenders who are terrified about their past coming to light. But it is not just ex-offenders who are approaching practitioners. Disclosure can relate to allegations. It can relate to acquittals. Limiting that disclosure can also be essential. We live in a society where an allegation can be enough to destroy a person’s job prospects. The law has the potential to provide an important safeguard by ensuring that there is a genuine justification for the use and disclosure of sensitive information. However, it will only be an effective safeguard if there are informed practitioners challenging decisions. It will only be an effective safeguard if Government lawyers are fully informed of the restrictions upon disclosure and advise accordingly. The importance of ensuring that disclosure is lawful means that I  am very excited by this new book. As far as I  am aware, there has been no previous attempt to bring together the law regarding the use and disclosure of police

1 Prejudged;Tagged for Life, Changing Lifes.

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information. This book will provide practitioners with the tools they need to advise. Ed and Jessica are experienced and leading practitioners in this area. It is to their credit that they are willing to share their expertise. I have no doubt that they are motivated by a desire to increase the protection of those at risk from unlawful use and disclosure of data. I am sure this book will achieve that aim. I thank them for all of their work. Hugh Southey QC, Matrix 25 June 2019

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Preface The inspiration behind this book came from our experience of acting for clients in criminal and public law proceedings. From our own cases, we saw that even securing an acquittal at trial was often not the end of the road for the impact that a criminal allegation would have on a client’s life, and that many people were struggling with the effect of cautions that should not have been offered to them. When we took on our first criminal records related cases, dealing with these issues, we were surprised to find no books that brought together the relevant bits of law, or that directed lawyers to the steps that could be taken to help clients cope with the impact of a criminal record. As anyone who has tried to work with the Rehabilitation of Offenders Act (Exceptions) Order 1975 will know, the management of criminal records can feel like a technical and intimidating area of law – but as we discovered, there are some fairly straightforward and effective steps that can be taken to help clients. We have aimed, therefore, to create a handbook that makes some of these options more accessible, and that would have helped us when we were first instructed in the kinds of cases covered by this book. One important thing we have learned from working in this area is how important an inter-disciplinary approach is to achieve the result that a client seeks. The majority of cases brought in relation to criminal records are public law cases, but private law claims in privacy or data protection now play an increasingly important role in the management of criminal records related information. In a world of permanently available online media, information about a person’s criminal record may be only a Google search away. A  standalone public law challenge to police records is unlikely to protect such a person’s prospects of rehabilitation when, regardless of the content of their formal criminal record certificate, employers can access historic and potentially damaging information about them on the Internet. A comprehensive legal response, therefore, requires consideration of the private law avenues that exist, as well. For that reason, we are grateful to Aidan Wills for contributing Chapters 12–14 on the private law principles and claims which arise in the context of this book. Along with Aidan, we are grateful to many other people who have provided support and encouragement in the process of writing this book. Ed’s firm, Hodge Jones & Allen solicitors, and Jessica and Aidan’s chambers, Matrix, have consistently supported our writing of the book even when it has made us less available for core case work. Colleagues at Matrix have provided invaluable assistance: in particular, Ian Helme, Zoe McCallum, Sara Mansoori, Tamara Jaber and Hugh Tomlinson QC, who have each reviewed chapters and whose suggestions and contributions have made this book better than we could have made it alone. We are also indebted to Chris Stacey of Unlock, who brought his expert attention to Chapter 5, and to Hugh Southey QC who not only vii

Preface

appeared as counsel in many of the cases covered in the book, but who was also kind enough to provide its Foreword. At Bloomsbury, Kiran Goss, Maria Skrzypiec and Jenny Lank have been unfailingly patient and good-humoured with our juggling of this book around our other commitments. We are very grateful to them for their deft guiding of us through the process. We hope that the end product – benefiting from the expertise of all these wonderful people – will provide real practical assistance to anyone working on the legal issues around criminal records. The book addresses the law as it stands in June 2019. Edward Jones and Jessica Jones London July 2019

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Contents Foreword  v Preface vii Table of Statutes xiii Table of Statutory Instruments xvii Table of European Legislation xix Table of Cases xxi Table of Policy and Guidance Documents xxvii Introduction 1 1

Sources of Law Governing the Management of Police Records Introduction 5 Article 8 of the ECHR 6 The Police and Criminal Evidence Act 1984 9 Data Protection Act 2018, Part 3 9 The Criminal Procedure and Investigations Act 1996 Code of Practice 14 The Home Office Counting Rules for Recorded Crime and the National Crime Recording Standard 15 The Code of Practice on the Management of Police Information 2005 20 Authorised Professional Practice – Information Management: Management of Police Information 21

2

The Four National Databases Introduction 29 The Police National Computer 29 The National DNA Database 32 IDENT1 – The Fingerprint Database 34 The Police National Database 35

3

The Right of Access to Personal Data under the Data Protection Act 2018 Introduction 37 Making a Subject Access Request for personal data held on police systems 37 ix

Challenging the adequacy of a response to a Subject Access Request 40 Application to the First-Tier Tribunal (General Regulatory Chamber) for an order to progress a complaint under the DPA 2018, s 166 44 Applications to a court for a compliance order under s 167 45 4

Deleting Personal Information Held by the Police Introduction 47 Home Office Counting Rules, Section C: ‘removing crime records’ 47 The deletion of custody images 48 The deletion of biometric information 51 The National Police Chiefs’ Council record deletion process 53 Deleting locally-held records 55 Complaint to the Information Commissioner’s Office pursuant to the Data Protection Act 2018, s 165(2) 58 Applications to a court for a compliance order pursuant to DPA 2018, s 167 59 Judicial review versus DPA 2018, s 167 59

5

The Disclosure & Barring Service and Disclosure of Criminal Records Introduction 63 Self-disclosure and the Rehabilitation of Offenders Act 1974 64 The Disclosure & Barring Service 65 Criminal record checks: Basic, Standard and Enhanced Certificates 66 Filtering 67 Challenging the accuracy of information disclosed in standard and enhanced CRC certificates 69 Challenging the disclosure of information about convictions and cautions in standard and enhanced certificates 70 Challenging the disclosure of ‘non-conviction’ information on enhanced certificates 72 Barring decisions under the Safeguarding Vulnerable Groups Act 2006 79 Appeals under the Safeguarding Vulnerable Groups Act 2006 82 How to appeal barred list decisions 83 ACRO police certificates 86

6

Clare’s Law and Sarah’s Law: the Domestic Violence and Child Sex Offender Disclosure Schemes Introduction 89 The Domestic Violence Disclosure Scheme 90 The Child Sex Offender Disclosure Scheme 98 x

7

Applications under the Protection of Freedoms Act 2012 to Disregard Certain Historic Convictions for Consensual Homosexual Activity Introduction 107 The application of the PFA 2012, s 92 108 Making an application under s 92 109 The procedure to be followed by the Secretary of State 110 Effect of a conviction or caution being disregarded 111 Appealing a refusal to disregard 112

8

Applications to Expunge Police Cautions Introduction 115 Is there a basis for the caution to be expunged? 116 Making an application to expunge 121 Challenging a refusal to expunge 123

9

Judicial Review Introduction 125 Bringing a judicial review claim 125 The Pre-action Protocol 127 Grounds for judicial review 128 The claim form and acknowledgment of service 130 The permission stage 131 The substantive stage 133

10 Anonymity and Privacy in Criminal Proceedings Introduction 135 The open justice principle 136 Protecting the identities of victims and witnesses involved in criminal proceedings 138 Protecting the identity of suspects and defendants 148 Excluding the public from hearings 157 11 Reporting Restrictions Introduction 163 Automatic reporting restrictions in criminal proceedings 164 Discretionary reporting restrictions in criminal proceedings 169 Special measures 176 Reporting criminal convictions and investigations 176

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12 The Publication of Information about Offending and Convictions – General Principles of the Law of Privacy and Data Protection Introduction 177 Misuse of private information 178 Data protection law 182 13 Privacy and Data Protection in Police Investigations, Court Proceedings and Spent Convictions Introduction 191 Arrests and law enforcement investigations 191 Criminal trials and other court proceedings 197 Spent convictions 199 14 The Right to Erasure Introduction 205 The right to erasure 205 The procedure and process of applying for erasure 209 The right to erasure and social media platforms 215 Appendices A Police Act 1997, Part V 217 B Data Protection Act 2018, Sch 7 255 C Data Protection Act 2018, Sch 8 261 D Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, SI 1975/1023 265 E Pre-Action Protocol for Judicial Review 317 F List of Rehabilitation Periods under the ROA 1974 327 G List of Offences that will Never be Filtered 329 H Statutory Disclosure Guidance 365 I National Retention Assessment Criteria Template 373 J Deletion of Records from National Police Systems Guidance 375 K ACRO Record Deletion Form 425 L MPS DPA Dispute Form 437 M Form T98 Notice of Appeal 439 N Form AF15(a) 447 O Precedent Letter for Application to Expunge Caution 453 Index 457

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Table of Statutes [All references are to paragraph number]

Anti-social Behaviour, Crime and Policing Act 2014.......................2.11 Children and Young Persons Act 1933 s 37................................................10.77  39......................................... 10.70; 11.35  47................................................10.81 (2)...........................................10.74 (e).......................................10.76  49.............................. 10.23, 10.59, 10.61; 11.12, 11.35 (4).................................... 10.23, 10.60 (4A), (5)...................................10.62 Contempt of Court Act 1981.............11.08 s 4(2).............................11.29, 11.30, 11.31  11............................... 11.32, 11.33, 11.34 Coroners and Justice Act 2009 Pt 3 Ch 1 (ss 74–85)......................10.33 s 77................................................10.33  86................................................10.24  87..........................................10.24, 10.25 (3), (4)......................................10.26  88................................10.24, 10.27, 10.29  89, 90..........................................10.24 Crime and Disorder Act 1998 s 19–23..........................................11.22  31(1)(1)(c)...................................2.03  52A.............................................11.22 Sch 3 para 3.........................................11.20 (8)....................................11.21 Criminal Evidence (Witness Anonymity) Act 2008 s 1(2).............................................10.38 Criminal Justice Act 1988 s 159..............................................11.52 Criminal Justice Act 2003................1.51; 8.07 s 22, 23, 25.....................................8.06  71................................................11.23 (8)...........................................11.23  77, 82..........................................11.48  325, 327A....................................6.34 Sch 15........................................ 1.51; 5.15 Sch 34...........................................6.33 Criminal Justice and Courts Act 2015 s 17................................................8.13

Criminal Justice and Immigration Act 2008....................................5.02 Sch 2.............................................10.59 Criminal Justice and Police Act 2001 s 1–11............................................1.30 Criminal Law Amendment Act 1885 s 11................................................7.03 Criminal Procedure and Investigations Act 1996........... 1.04, 1.21, 1.54; 2.11; 4.15; 10.26 s 29................................................11.16  37................................................11.17  39, 41..........................................11.14  58..........................................11.49, 11.51 Data Protection Act 1998.......3.19; 4.29, 4.33; 12.16, 12.21; 13.12; 14.22 s 32................................................12.27 Sch 3 para 5.........................................13.12 Data Protection Act 2018........1.11, 1.13, 1.14, 1.15, 1.18, 1.21, 1.49; 3.04, 3.18, 3.19; 4.19, 4.33, 4.34, 4.37; 6.05, 6.24, 6.31, 6.50; 12.16, 12.18, 12.21, 12.27, 12.28; 13.09, 13.13 s 3..................................................12.17  10................................................13.23 (5)...........................................12.21  11................................................13.23 (2)...........................................12.18 Pt 3 (ss 29–81)...........1.04, 1.11, 1.12, 1.21; 3.08, 3.18; 4.30, 4.32; 6.05, 6.31, 6.50; 12.16, 12.20, 12.21, 12.22, 12.29 s 29................................................1.12  31................................... 1.12; 6.05; 12.20  32................................................1.13 Pt 3 Ch 2 (ss 34–42)............... 12.20; 14.09 s 35................................. 1.14; 12.21; 13.09 (8)...........................................12.19 (8)...........................................1.14 36, 37..........................................1.14  38............................................1.14; 12.21 (2)...........................................1.14  39........................................... 1.14; 12.21

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Table of Statutes Data Protection Act 2018 – contd s 40................................................1.14  44(2), (4)......................................3.13  45.....................................1.15; 3.01, 3.02 (1), (4)...................................3.10, 3.13 (5)........................................3.12, 3.14  46..................................... 1.15, 1.16; 5.54 (2)...........................................1.16  47............................ 1.15, 1.17; 3.13; 4.27, 4.35; 14.03, 14.09  48................................................1.15 (2)(a)........................................1.19  49............................................. 1.15, 1.20 (1)...........................................1.21  50(2)(a), (b)..................................1.21 (3)...........................................1.21  51.............................................3.12, 3.13  52................................................3.02 (4)........................................1.19; 3.07  53.............................................1.19; 3.07  54................................................3.02 (2)...........................................1.19 (3)........................................1.19; 3.07  58.............................................3.18; 4.32 Pt 4 (ss 82–113)..........3.08, 3.18; 4.30, 4.32 s 84(6)...........................................1.18 Pt 6 (ss 141–181)...........................3.13 s 142, 146, 149...............................3.13  165..............................................3.16 (2).............. 3.08; 3.14, 3.16; 4.30, 4.31 (4).......................................3.08; 4.30 (a)......................................3.13 (5)..........................................3.13  166...................................3.15, 3.16; 4.31  167.......................... 3.09, 3.12, 3.13, 3.15, 3.18, 3.19; 4.32, 4.33, 4.35, 4.36, 4.37; 12.29  168, 169......................................12.29  180........................................... 3.19; 4.33  205(1)..........................................12.21 Sch 1........................... 12.20, 12.21, 12.25; 13.09, 13.13 Pt 1 (paras 1–4)..........................12.21 Pt 2 (paras 5–28)........................12.21 para 10...................................12.21 Pt 3 (paras 29–37)......................12.21 para 32.............................12.21; 13.12  39...................................12.21 Sch 2...................................... 12.21; 14.05 para 1.........................................12.21 26.......................................12.25 (9)...................................12.25 Sch 3.......................................12.21; 14.05 Sch 7........................................ 1.12; 12.20 para 1–56................................... App B

Data Protection Act 2018 – contd Sch 8.............................................1.14 para 1–9..................................... App C Sch 20...........................................12.16 Education Act 2002 s 141F......................................10.47, 10.51 (3).............10.48, 10.49, 10.50, 10.52 (3)–(5), (10)..........................10.51 (11), (12)..............................10.52  141G...........................................10.50 Education Act 2011 s 13(1)...........................................10.47 Female Genital Mutilation Act 2003 s 4A...............................................10.22 Sch 1.............................................10.22 para 9.........................................10.22 Human Rights Act 1998.......1.04; 6.23; 10.57, 10.67, 10.70; 11.35; 12.15 s 1..................................................1.06  6..............................................1.06; 10.67  7(5).............................................12.15 Sch 1.............................................1.06 Legal Aid, Sentencing and Punishment of Offenders Act 2012 Sch 1 para 4.........................................5.48 Magistrates’ Courts Act 1980 s 8A, 8C.........................................11.14  19–23..........................................11.22  25(2)...........................................11.22 Modern Slavery Act 2015..................10.16 Offences against the Person Act 1861.6.09 s 61................................................7.03 Official Secrets Act 1911....................10.82 Official Secrets Act 1920....................10.72 s 8(4).............................................10.82 Police Act 1996 s 2..................................................1.12  39, 39A........................................1.35 Police Act 1997..................................4.29 s 28, 28A........................................1.35  73, 73A........................................1.35 Pt V (ss 112–127)................5.02, 5.07, 5.15 s 112........................................ 5.17; App A  113................................ 5.12, 5.17; App A  113A........................................... App A (6).......................................5.08 (a)(i), (ii)..........................5.15 (b), (c).............................5.15 (6D)....................................5.15 (6E)(a), (b), (e).....................5.15  113B.....................5.26, 5.27, 5.31; App A (2).......................................5.31 (4).................................... 5.14, 5.31 (4A).....................................5.31

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Table of Statutes Protection of Freedoms Act 2012 – contd s 96(3)...........................................7.19  98(2), (3)......................................7.19  99................................................7.20 (1)(b).......................................7.20 (6)...........................................7.23  100..............................................7.13 (2)..........................................7.13  101(5)..........................................7.04 Rehabilitation of Offenders Act 1974......................4.29; 5.02, 5.05, 5.06, 5.12; 6.19; 8.03; 13.01, 13.16, 13.18, 13.19; 14.21 s 4..................................................13.18 (1).............................................13.17 (2).............................................13.17 (4).......................................... 5.06, 5.08  5, 6..............................................13.16  7..................................................13.17  8........................................... 13.18; 14.21 Sch 2 para 1.........................................8.03 Safeguarding Vulnerable Groups Act 2006...................... 5.36, 5.40, 5.41, 5.42 s 2..................................................5.46  4...................................... 5.39, 5.41, 5.43 (2).............................................5.44  7..................................................5.34 Sch 3.............................................5.32 para 3, 4 9, 10.............................5.33 18........................... 5.37, 5.41, 5.42 (2)...................................5.38 18A.........................5.35, 5.37, 5.41 Sch 4.............................................5.33 Senior Courts Act 1981 s 31(2A).........................................9.37  45................................................10.37 Serious Crime Act 2015.....................10.22 s 71................................................11.10 Serious Organised Crime and Police Act 2005....................................10.81 s 74................................................10.79  75......................................... 10.79, 10.80 Sexual Offences Act 1956 s 12, 13..........................................7.03  71............................ 7.05, 7.07, 7.11, 7.12 Sexual Offences Act 2003..............6.09; 10.16 Sch 3..........................................1.52; 2.22 Sch 5.............................................2.22 Sexual Offences (Amendment) Act 1992........................ 10.17, 10.22, 10.53, 10.57, 10.63 s 1...................... 10.14, 10.18, 10.20, 10.21, 10.64, 10.65, 10.66; 11.10 (4)...................................... 10.19, 10.64

Police Act 1997 – contd s 113BA–113BC, 113C–113F........ App A  114........................................ 5.17; App A  115................................5.13, 5.17; App A (7)..........................................5.26  116................................ 5.17, 5.31; App A (2)..........................................5.31  116A, 117.............................. 5.17; App A  117A........................................... App A  117B........................................ 5.26, 5.31  118, 119, 119B............................. App A  120, 120ZA, 120A, 120AA–120AD. App A  122, 122A, 123–124A, 125, 125B App A  126, 127...................................... App A Police and Criminal Evidence Act 1984............................... 1.04, 1.10; 8.08 s 27................................................2.03 (4)........................................ 1.10; 2.03  61............................................. 1.10; 2.15  62, 63..........................................1.10  63D.......................................... 4.15, 4.16 (3).........................................4.16  63E, 63F.................. 2.12, 2.16; 4.15, 4.16  63, 63H............................2.12, 2.16; 4.15  63I...........................2.12, 2.16; 4.15, 4.16  63J.................................. 2.12, 2.16; 4.15  63K................................. 2.12, 2.16; 4.15 (2)–(5)...................................4.16  63L...........................2.12, 2.16; 4.15, 4.16  63M–63O....................... 2.12, 2.16; 4.15  63R.......................................... 2.11; 4.15  64................................................1.10  64A.............................................1.10 (4).........................................4.05  65............................................. 1.10; 4.16  65B.............................................4.16  118..............................................2.03 Protection from Harassment Act 1997..........................................6.09 Protection of Freedoms Act 2012.......2.11; 4.15; 5.36 s 1..................................................4.15  14.............................................2.11; 4.15  82.............................................5.17, 5.31  92........................... 7.01, 7.02, 7.03, 7.08, 7.11, 7.12, 7.19, 7.22 (3)(b).......................................7.12  93.............................................7.10, 7.12  94................................................7.13 (2)...........................................7.13 (4)(b).......................................7.08  95(1)–(4).....................................7.15 (5)...........................................7.16  96................................................7.17 (2)...........................................7.18

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Table of Statutes Sexual Offences (Amendment) Act 1992 – contd s 2..................................................10.16 (1)(db).......................................10.16  3(1)–(3).......................................10.18  5..................................................10.21 Youth Justice and Criminal Evidence Act 1999............................. 10.70; 11.54 s 16......................................... 10.39, 10.78  17......................................... 10.39, 10.78 (4), (5)......................................10.41  18–24..........................................10.39

Youth Justice and Criminal Evidence Act 1999 – contd  25......................................... 10.39, 10.78  26–30..........................................10.39  44......................................... 10.54, 10.55  45............................... 10.36; 11.35, 11.43 (3)................ 11.35, 11.36, 11.38, 11.39 (7)...........................................11.37  45A................. 10.36; 11.40, 11.41, 11.42, 11.43, 11.44, 11.46, 11.47 (6).........................................11.42  46..................... 10.36; 11.45, 11.46, 11.47

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Table of Statutory Instruments [All references are to paragraph number]

Civil Procedure Rules 1998, SI 1998/3132 Pt 8 (rr 8.1–8.9).......................... 3.19; 4.33 r 18.9.............................................10.29 52.6.............................................7.21 Pt 54........................................... 9.03, 9.05 r 54.5..................................9.05, 9.06, 9.23 54.7.............................................9.24 54.8.......................................... 9.26, 9.27 54.12(4).......................................9.31 (7).......................................9.30 PD 54............................................9.31 Criminal Procedure Rules 2015, SI 20151490 Pt 6 (rr 6.1–6.10)...........................11.04 r 6.2...............................................11.04 6.4...............................................11.26 (2)(b)......................................11.26 6.6...............................................10.73 18................................................10.31 18.8–18.13..................................10.39 Education (Prohibition from Teaching or Working with Children) (Amendment) Regulations 2007, SI 2007/195...............................5.33 Education (Prohibition from Teaching or Working with Children) Regulations 2003, SI 2003/1184.............................5.33 Electronic Commerce (EC Directive) Regulations 2002, SI 2002/2013 reg 19, 22.......................................12.12 National Police Records (Recordable Offences) (Amendment) Regulations 2016, SI 2016/1006.............................2.03 National Police Records (Recordable Offences) Regulations 2000, SI 2000/1139.......................... 2.03; 4.16 Police Act 1997 (Criminal Records) Regulations 2002, SI 2002/233...............................5.13

Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013, SI 2013/1200..................5.02, 5.13, 5.15 Protection of Freedoms Act 2012 (Commencement No 3) Order 2012, SI 2012/2234 art 10.............................................5.40 Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, SI 1975/1023........................ 5.06; 13.17 art 1, 2........................................... App D 2A............................................ App D (1), (2)..................................5.15 (3)(a)–(c)..............................5.15 (4), (5)..................................5.15 3.........................................5.06; App D 3ZA, 3A, 4, 4ZA, 4A, 5, 6.......... App D Sch 1.............................. 5.06, 5.12; App D Sch 2............................................. App D Sch 3............................................. App D Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198.......................... 5.06, 5.15 art 3, 4...........................................5.06 Rehabilitation of Offenders Act (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198.............................5.02 Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Miscellaneous Provisions) Regulations 2010, SI 2010/1146.............................5.33 Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Prescribed Criteria) Regulations 2012, SI 2012/2160....................5.33

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Table of Statutory Instruments Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009, SI 2009/37 reg 3–6..........................................5.33

Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2008/2698 r 21(3)(a).......................................5.48

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Table of European Legislation [All references are to paragraph number]

TREATIES AND CONVENTIONS Charter of the Fundamental Rights of the European Union (2 October 2000) art 21, 52.......................................1.21 European Convention on Human Rights (Rome, 4 November 1950) art 2, 3...........................................10.67 6...............................................10.02 8...............................................  1.04, 1.05, 1.07, 1.08, 1.09; 2.14; 4.27, 4.28, 4.37, 4.38, 4.39; 5.03, 5.15, 5.20, 5.21, 5.26, 5.45; 6.05, 6.23, 6.59; 8.15, 8.16; 9.07, 9.19; 10.67, 10.68, 10.70; 12.05, 12.06, 12.07, 12.08, 12.09, 12.10, 12.15; 13.07, 13.20, 13.22; 14.19 (1)..........................................13.14 (2).....................1.06; 4.38, 4.39; 12.07 10......... 1.09; 10.02, 10.70; 12.05, 12.06, 12.07, 12.09, 12.10; 13.07

DIRECTIVES Dir 95/46/EC........12.16, 12.20; 13.13; 14.25 art 9...............................................12.27 Dir 2000/31/EC...............................12.12 Dir 2016/680/EU................ 1.11, 1.21; 12.20

REGULATIONS Reg 2016/679.........6.50; 12.16, 12.20, 12.21, 12.27; 13.13; 14.03, 14.13, 14.18, 14.25 Recital 18......................................12.20 Recital 69......................................14.04 Recital 153....................................12.27 art 2(1)..........................................12.17 (2)..........................................12.20 (4)..........................................12.24 3(2)..........................................12.20 4(1)..........................................12.17 (2), (6), (7)...............................12.17 5...............................................14.03 (1)(d)......................................12.21 (e)......................................12.21 6(1)..........................................14.03 10....................6.50; 12.18, 12.21; 13.23 12(b).........................................14.13 14(a).........................................14.13 15, 16.......................................12.22 17.............................12.22; 14.05, 14.09 (1).................................. 14.03, 14.13 (3)........................ 14.05, 14.08, 14.24 (a).....................................14.26 18.............................................12.22 21.......................................12.22; 14.04 (1).........................................14.03 77.............................................3.16 79.............................................12.29 (1)...................................... 3.18; 4.32 82.............................................12.29

xix

Table of Cases [All references are to paragraph number]

A A, Re see R (on the application of A) v Crown Court at the Central Criminal Court A-G  v Leveller Magazine Ltd [1979]  AC  440, [1979] 2  WLR  247, [1979] 1  All ER 745.................................................................................................10.05, 10.07; 11.25 Ali v Channel 5 Broadcast Ltd [2018]  EWHC  298 (Ch), [2018] 2  WLUK  532, [2018] EMLR 17..................................................................................................12.14 Axel Springer AG  v Germany (Application 39954/08) [2012] 2  WLUK  194, [2012] EMLR 15, (2012) 55 EHRR 6............................. 12.10; 13.06; 14.05, 14.05, 14.19 Axon v Ministry of Defence [2016]  EWHC  787 (QB), [2016] 4  WLUK  172, [2016] EMLR 20..................................................................................................13.06 B Belfast Telegraph Newspapers Ltd’s Application, Re; R  v Newtownabbey Magistrates Court, ex p Belfast Telegraph Newspapers Ltd [1997]  NI  309, [1997] 7 WLUK 378.......................................................................................................11.29 Buivids v Datu Valsts Inspeckcija (Case C-345/17) [2019] 2  WLUK  187, [2019] 2 CMLR 24........................................................................................ 12.20, 12.27, 12.28 C CG  v Facebook Ireland Ltd [2016]  NICA  54, [2016] 12  WLUK  542, [2017] 2 CMLR 29.........................................................................................12.12; 13.11, 13.15 CM v DBS [2015] UKUT 707 (AAC)..........................................................................5.47 Caetano v Comr of Police of the Metropolis [2013]  EWHC  375 (Admin), [2013] 2 WLUK 820, (2013) 177 JP 314..........................................................................8.10 Chief Constable of Humberside, Chief Constable of Staffordshire, Chief Constable of Northumbria, Chief Constable of West Midlands, Chief Constable of Greater Manchester v Information Comr [2009] EWCA Civ 1079, [2010] 1 WLR 1136, [2010] 3 All ER 611..........................................................................2.03; 4.28, 4.29, 4.38 E EC v Sunday Newspapers Ltd [2017] NIQB 117, [2017] 12 WLUK 142......................13.21 G GC v CNIL (Case C-136/17)......................................................................14.05, 14.23, 14.25 Gallagher’s Application for Judicial Review, Re [2019] UKSC 3, [2019] 2 WLR 509, [2019] 1 WLUK 261................................................................ 5.03, 5.15, 5.20, 5.21; 9.19 Gaughran v Chief Constable of Northern Ireland; Gaughran’s Application for Judicial Review, Re [2015] UKSC 29, [2016] AC 345, [2015] 2 WLR 1303........... 2.14; 4.28, 4.38 Global Torch v Apex Global Management Ltd; FI Call Ltd, Re [2013] EWCA Civ 819, [2013] 1 WLR 2993, [2013] 7 WLUK 300...........................................................10.02 Google v CNIL (Case C-507/17).................................................................................14.16 Google Spain SLv Agencia Espanola de Proteccion de Datos (Case C-131/12), [2014] QB 1022, [2014] 3 WLR 659, [2014] 2 All ER (Comm) 301.............. 14.07, 14.10, 14.12, 14.13, 14.17, 14.18, 14.22

xxi

Table of Cases Guardian News & Media v AB, CD [2014] All ER (D) 88............................................10.84 Guardian News & Media Ltd v Incedal [2014] EWCA Crim 1861, [2014] 9 WLUK 518, [2015] 1 Cr App R 4....................................................................................... 10.03, 10.85 Guardian News & Media Ltd v Incedal [2016] EWCA Crim 11, [2016] 1 WLR 1767, [2017] 2 All ER 121.............................................................................................10.85 Guardian News & Media Ltd, Re [2010]  UKSC  1, [2010] 2  AC  697, [2010] 2 WLR 325..........................................................................................................10.67 Gulati v MGN Ltd [2015] EWHC 1482 (Ch), [2015] 5 WLUK 637, [2016] FSR 12....12.14 H HM Advocate v McAllister (Jason) [2014] HCJ 111, 2014 SLT 1023, 2014 SCL 799.....10.38 Hannon & Dufour v News Group Newspapers Ltd [2014] EWHC 1580 (Ch), [2014] 5 WLUK 578, [2015] EMLR 1....................................................................... 13.06, 13.07 Higinbotham (formerly BWK) v Teekhungam [2018]  EWHC  1880 (QB), [2018] 7 WLUK 507.......................................................................................................13.10 Hussain v Sandwell Metropolitan BC [2017] EWHC 1641 (Admin), [2018] PTSR 142, [2017] 6 WLUK 626............................................................................................4.37 I Independent Safeguarding Authority v SB (Royal College of Nursing Intervening); B v Independent Safeguarding Authority [2012] EWCA Civ 977, [2014] 1 WLR 308, [2012] 7 WLUK 529......................................................................................... 5.45, 5.46 J JR38’s Application for Judicial Review, Re [2015] UKSC 42, [2016] AC 1131, [2015] 3 WLR 155.................................................................................................... 12.08; 13.06 Jackson v BBC [2017] NIQB 51, [2017] 1 WLUK 20.................................. 13.04, 13.06, 13.07 K K v ISA [2012] UKUT 424 (AAC)...............................................................................5.47 Khakh v Disclosure & Barring Service (formerly Independent Safeguarding Authority) [2013] EWCA Civ 1341, [2014] 11 WLUK 117...................................................5.45 Khuja v Times Newspapers Ltd [2017]  UKSC  49, [2019]  AC  161, [2017] 3 WLR 351.................................................10.03, 10.07, 10.38, 10.69; 11.26; 13.10, 13.15 Kinloch (James) v HM  Advocate [2012]  UKSC  62, [2013] 2  AC  93, [2013] 2 WLR 141..........................................................................................................13.06 L LG v Independent Monitor [2017] EWHC 3327 (Admin), [2017] 12 WLUK 626........13.14 Lee v Chief Constable of Essex see R (on the application of Lee) v Chief Constable of Essex Lumba v Secretary of State for the Home Department see R  (on the application of Lumba) v Secretary of State for the Home Department [2011] 2 WLR 671..........9.17 M ML & WW v Germany (App Nos 60798/10 & 65599/10) (2018).......................... 13.14; 14.07 MM v United Kingdom (App No 24029/07) [2012] 11 WLUK 360............................8.16 Murray v Express Newspapers [2008]  EWCA  Civ 446, [2009] Ch  481, [2008] 3 WLR 1360........................................................................................................12.08 N NT1 & NT2 v Google LLC  [2018]  EWHC  799 (QB), [2019]  QB  344, [2018] 3 WLR 1165............................................. 10.38; 12.21; 13.12, 13.13, 13.14, 13.18, 13.21; 14.17, 14.20, 14.19, 14.21, 14.22

xxii

Table of Cases P P, G & W v Secretary of State for the Home Department see Gallagher’s Application for Judicial Review, Re R R  v Beale (Jemma) [2017]  EWCA  Crim 1012, [2017] 6  WLUK  154, [2017] EMLR 26............................................................................................ 10.19, 10.65 R v Chief Constable of North Wales, ex p Thorpe; R v Chief Constable of North Wales, ex p AB [1999] QB 396, [1998] 3 WLR 57, [1998] 3 All ER 310.........................6.49 R v Legal Aid Board, ex p Kaim Todner [1999] QB 966, [1998] 3 WLR 925, [1998] 3 All ER 541........................................................................................................10.71 R  v Metropolitan Police Comr, ex p Thompson [1997] 1  WLR  1519, [1996] 12 WLUK 380, [1997] 2 Cr App R 49..................................................................8.26 R  v Sardar (Anis Abid) [2016]  EWCA  Crim 1616, [2017] 1  WLR  917, [2016] 11 WLUK 99.......................................................................................................10.26 R v Westminster City Council, ex p L [1992] 1 WLR 253, [1992] 1 All ER 917, [1990] 12 WLUK 13.......................................................................................................10.75 R v Willesden Juvenile Court, ex p Brent London Borough [1988] 1 WLUK 464, [1988] 2 FLR 95, 886 LGR 197.................................................................................10.76, 10.81 R v Yam (Wang) [2008] EWCA Crim 269, [2008] 1 WLUK 477..................................10.84 R (on the application of A) v Chief Constable of Kent [2013] EWCA Civ 1706, [2013] 12 WLUK 817, (2014) 135 BMLR 22..................................................................13.14 R  (on the application of A) v Crown Court at the Central Criminal Court [2006] EWCA Crim 4, [2006] 1 WLR 1361, [2006] 2 All ER 1...........................10.84 R  (on the application of A) v Secretary of State for the Home Department [2016] EWCA Civ 597, [2016] 4 WLUK 458............................................6.30, 6.56, 6.59 R (on the application of C) v Metropolitan Police Comr; R (on the application of J) v Metropolitan Police Comr [2012] EWHC 1681 (Admin), [2012] 1 WLR 3007, [2012] 4 All ER 510.............................................................................................4.38 R (on the application of Catt) v Association of Chief Police Officers of England, Wales & Northern Ireland; R  (on the application of T) v Metropolitan Police Comr [2015] UKSC 9, [2015] AC 1065, [2015] 2 WLR 664.............. 1.07; 4.28, 4.38, 4.39; 12.08 R (on the application of DSD) v Parole Board of England & Wales [2018] EWHC 694 (Admin), [2019] QB 285, [2018] 3 WLR 829........................................................10.06 R  (on the application of El-Gizouli) v Secretary of State for the Home Department [2019] EWHC 60 (Admin), [2019] 1 WLUK 111, [2019] ACD 44.................. 4.36; 12.16 R (on the application of Guardian News & Media) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343....................11.33 R  (on the application of H) v A  City Council [2011]  EWCA  Civ 403, [2011] 4 WLUK 422, [2011] UKHRR 599.................................................................. 6.48, 6.49 R (on the application of Green) v Comr of Police of the Metropolis [2018] EWHC 3657 (Admin), [2018] 12 WLUK 514............................................................................4.38 R (on the application of JC) v Central Criminal Court [2014] EWCA Civ 1777, [2015] 1 WLR 2865, [2014] 11 WLUK 611....................................................................10.38 R  (on the application of L) v Metropolitan Police Comr [2009]  UKSC  3, [2010] 1 AC 410, [2009] 3 WLR 1056................................................................ 5.25, 5.26; 13.14 R (on the application of Lee) v Chief Constable of Essex [2012] EWHC 283 (Admin), [2012] 1 WLUK 416............................................................................................8.25 R  (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245, [2011] 2 WLR 671..................................... 8.06; 9.17 R  (on the application of Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346, [2017] PTSR 1166, [2003] 10 WLUK 358....................9.32 R  (on the application of Owusu-Yianoma) v Chief Constable of Leicestershire [2017] EWHC 576 (Admin), [2017] 2 WLUK 2, [2017] ACD 48.........................8.06

xxiii

Table of Cases R  (on the application of Press Association) v Cambridge Crown Court [2012] EWCA Crim 2434, [2013] 1 WLR 1979, [2013] 1 All ER 1361................10.15, 10.17, 10.66 R  (on the application of R) v Chief Constable of Greater Manchester Police [2018] UKSC 47, [2018] 1 WLR 4079, [2019] 1 All ER 391...................5.25, 5.27; 13.14 R  (on the application of the Royal College of Nursing) v Secretary of State for the Home Department [2010]  EWHC  2761 (Admin), [2011]  PTSR  1193, [2010] 11 WLUK 257......................................................................................................5.45 R  (on the application of Stratton) v Chief Constable of Thames Valley Police [2013] EWHC 1561 (Admin), [2013] 6 WLUK 137, [2013] ACD 110..................8.11 R  (on the application of T) v Chief Constable of Greater Manchester Police [2014] UKSC 35, [2015] AC 49, [2014] 3 WLR 96.......................... 5.03, 5.15, 5.21; 8.16; 9.07; 13.20 R (on the application of T) v Metropolitan Police Comr see R (on the application of Catt) v Association of Chief Police Officers of England, Wales & Northern Ireland R (on the application of Trinity Mirror plc) v Croydon Crown Court [2008] EWCA Crim 50, [2008] QB 770, [2008] 3 WLR 51.............................. 10.37, 10.56, 10.69; 11.02, 11.33 R  (on the application of Wilson) v Prime Minister [2019]  EWCA  Civ 304, [2019] 3 WLUK 18.........................................................................................................9.33 R (on the application of X) v Chief Constable of the West Midlands [2004] EWCA Civ 1068, [2005] 1 WLR 65, [2005] 1 All ER 610.......................................................5.26 R  (on the application of X) v Secretary of State for the Home Department [2012] EWHC 2954 (Admin), [2013] 1 WLR 2638, [2012] 10 WLUK 712....... 6.48, 6.55 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47.................................................10.68 Representative Claimants v MGN Ltd; Gulati v MGN Ltd [2015] EWCA Civ 1291, [2017] QB 149, [2016] 2 WLR 1217....................................................................12.14 Richard (Sir Cliff) v BBC  [2018]  EWHC  1837 (Ch), [2019] Ch  169, [2018] 3 WLR 1715........................................................ 12.05; 13.02, 13.03, 13.04, 13.06, 13.07 Rudd v Bridle [2019] EWHC 893 (QB), [2019] 4 WLUK 164.............................. 12.21, 12.26 Ryneš v Úra˘d pro ochranu osobnich údaju˚ (Case C-212/13) [2015] 1  WLR  2607, [2014] 12 WLUK 430, [2015] CEC 732...............................................................12.20 S S & Marper v UK (App Nos 30562/04 & 30566/04) [2008] 12 WLUK 117, (2009) 48 EHRR 50, 25 BHRC 557............................................................ 1.07, 1.08; 2.14; 4.38 S  (a child) (identification: restrictions on publication), Re [2004]  UKHL  47, [2005] 1 AC 593, [2004] 3 WLR 1129................................1.09; 10.68; 10.69, 10.70; 11.03, 11.09 Scott v Scott [1913] AC 417, [1913] 5 WLUK 10.........................................................10.05 T T  v DPP & North East Press [2003]  EWHC  2408 (Admin), [2003] 10  WLUK  123, (2004) 168 JP 194.................................................................................................10.61 TLT v Secretary of State for the Home Department [2016] EWHC 2217 (QB), [2016] 6 WLUK 618, [2016] Info TLR 373.....................................................................12.14 Thompson v News Group Newspapers Ltd see Venables v News Group Newspapers Ltd Times Newspapers Ltd, Re; R v Abdulaziz (Ehsan) [2016] EWCA Crim 887, [2016] 1 WLR 4366, [2016] 7 WLUK 177......................................................................11.34 Trinity Mirror plc, Re see R  (on the application of Trinity Mirror plc) v Croydon Crown Court U Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein vWietschaftsakademie Schleswig-Holstein GmbH (Case C-210/16) [2019] 1  WLR  119, [2018] 6 WLUK 11, [2018] 3 CMLR 32.........................................................................14.26

xxiv

Table of Cases V Venables & Thompson v News Group Newspapers Ltd; Thompson v News Group Newspapers Ltd [2001] Fam 430, [2001] 2  WLR  1038, [2001] 1  All ER 908.................................................................................................................  10.69; 11.35 Z ZXC v Bloomberg LP [2019] EWHC 970 (QB)....................................................13.02–13.07

xxv

Table of Policy and Guidance Documents [All references are to paragraph number]

Attorney-General’s Guidance on the Prosecutor’s Role in Applications for Witness Anonymity Orders.....................10.26 Code of Practice on the Management of Police Information 2005 (MoPI).......1.04, 1.35, 1.38; 4.12, 4.24, 4.28 para 1.1.2.......................................1.36 2.1..........................................1.36 2.2....................................... 1.36, 1.41 4......................................... 1.37, 1.40 Code of Practice on the Operation and use of the Police National Database....................................2.20 Code of Practice: The Police National Computer....................2.06 College of Policing Authorised Professional Practice – Information Management: Management of Police Information (APP)........1.04, 1.40, 1.41, 1.42, 1.43, 1.44, 1.45, 1.49, 1.50; 2.21; 4.05, 4.07, 4.08, 4.11, 4.24, 4.28 Criminal Procedure and Investigations Act 1996 Code of Practice......................................1.22 para 5............................................1.22 Criminal Prosecution Service Legal Guidance on Contempt.............11.08 Deletion of Records from National Police Systems (PNC/ NDNDAD/IDENT1)............4.17, 4.18

Domestic Violence Disclosure Scheme Guidance Annex C........................................6.12 Government Guidance on Working Together to Safeguard Children.. 6.39 Guide to Law Enforcement Processing (Information Commissioner’s Office)..............1.17 Home Office Circular 016/2008........8.19 Home Office Counting Rules for Recorded Crime (HOCR).... 1.04, 1.26, 1.27, 1.28, 1.29, 1.30, 1.31, 1.32, 1.52; 4.02, 4.03, 4.27 Section A.......................................1.31 C...................................4.02, 4.04, 4.27 Annex A........................................1.29 Annex B............................. 1.31, 1.32, 1.34 Home Office Statutory Disclosure Guidance...................................5.23 Judicial College Guidelines on Reporting Restrictions........10.02, 10.19 National Crime Recording Standard (NCRS).......................... 1.04, 1.26, 1.29 National Police Chiefs’ Council Record Deletion Process Guidance................................ 8.20, 8.21 Annex A........................................8.22 National Retention Assessment Criteria (NRAC)....................4.09, 4.13 National Standard for Incident Recording 2011 (NSIR)............1.29

xxvii

Introduction Contact with the criminal justice system can have a profound impact on an individual’s life and prospects. The state has a long memory and, when coupled with the increasing availability and longevity of newspaper reports and commentary online, it can be difficult for a person to move on from the stigma of a conviction or allegation made against them. In practical terms, an individual’s arrest will leave a potentially indelible record on at least three different police databases, and the information contained on these databases can be retrieved whenever the state has cause to scrutinise an individual’s background, either by its own motion or at the request of a third party. That may happen when an individual applies for employment or a visa for foreign travel, and depending on the nature of the information stored about them, its disclosure may mean that those job or travel prospects are lost. In other cases, people might suffer detriment from historic convictions which ought properly to be disregarded, or which continue to appear on search engines years after they occurred. In our experience of acting for individuals in these circumstances, sensitive information is often retained on police databases where in fact there is a right to have it erased. Challenges can also be brought in respect of the processing of data, inclusion on the Disclosure & Barring Service (DBS) barred lists, or disclosures by police on Enhanced Criminal Records Certificates (ECRCs). The information that makes its way into the public domain may also be controlled in cases where reporting restrictions are available. This book attempts to provide an accessible primer on issues relating to criminal records, privacy, and the criminal justice system. It covers how to bring relevant challenges to the content and disclosure of a person’s criminal record, when challenges might arise, what grounds they can rely upon, and the procedures to be followed to initiate them.We hope that this book will help practitioners take the steps necessary to protect a person’s rehabilitation and help them navigate the effect their contact with the criminal justice system has on their lives. The first three chapters cover the background to data retention and disclosure in the criminal justice system. Chapter 1 addresses the sources of law that apply; Chapter 2 gives the details of the various police databases on which an individual’s personal data may be held; and Chapter 3 deals with how an individual can find out what information about them the police have stored, by making a Subject Access Request. A Subject Access Request will often be the first step to take in any potential challenge relating to criminal records, and these three opening chapters therefore set the scene for the various actions that are addressed in later chapters of the book. 1

Introduction

Chapter 4 looks at how one might begin to try to alter the information held by the police: by applications for deletion of data, including custody photographs, biometric data and DNA. It covers the National Record Deletion Process, and how to apply for deletion of records held on local police databases. It also covers the recourse an individual might have to the Information Commissioner if an application for deletion is refused, as well as court actions for compliance orders under the Data Protection Act 2018 or for judicial review. Chapter 5 covers the disclosure of criminal records. It explains the application of the Rehabilitation of Offenders Act 1974 and the 1975 Exceptions Order which govern when convictions become ‘spent’ and when an individual is required to, or protected from, disclosing their criminal record. It also sets out the framework provided by the Police Act 1997 and associated statutory instruments, which deal with disclosures made by the police, for example to potential employers, by way of Criminal Record Certificates (CRCs) and ECRCs. The chapter looks at the ‘filtering’ scheme by which certain convictions do not fall for disclosure – including the series of Supreme Court cases which considered the compatibility of the disclosure system with Article 8 of the European Convention on Human Rights. At the time of going to print, the most recent word from the Supreme Court is that aspects of the scheme for disclosure (the ‘multiple convictions rule’ and the disclosure of youth reprimands and warnings) are incompatible with Article 8. There has been no legislative response from the Government – and until there is, individuals who have convictions disclosed under the multiple convictions rule, or have youth reprimands and warnings disclosed, may have recourse to civil damages claims for breach of Article 8. Chapter 5 also sets out the various challenges that can be made to the content of CRCs and ECRCs, in particular the inclusion of ‘non-conviction’ information on ECRCs. It then explains the DBS barred lists (‘the children’s barred list’ and ‘the vulnerable adults barred list’), in particular the circumstances in which a person will be included on one of the lists and the steps that can be taken to review and/or appeal inclusion. Finally, it looks at ACRO Police Certificates – issued for immigration purposes – and the ‘step-down’ model that applies to information that will be disclosed on them. Chapter 6 looks at the specific disclosures that can be made under the Domestic Violence Disclosure Scheme (‘Clare’s Law’) and the Child Sex Offender Disclosure Scheme (‘Sarah’s Law’). These are essentially safeguarding schemes under which an individual can request information about the criminal history of a third party who they consider might pose a threat either to an intimate partner or to a child. The chapter sets out the procedure to be followed to request a disclosure, including the steps the police will follow to determine whether or not a disclosure should be made, and to whom. It also covers the case law on the (limited) right of an individual about whom a disclosure might be made to make representations before any information about them is disclosed. Chapter 7 covers applications under the Protection of Freedoms Act 2012 for historic convictions for consensual homosexual activity to be disregarded. The 2

Introduction

effect of a conviction being disregarded is that it must be treated as if it never happened – it is completely wiped from someone’s record.The chapter looks at how to make an application and the conditions that must be satisfied in order for an application to succeed. It also addresses how to appeal if an application for disregard is refused. Chapter 8 addresses the steps that can be taken to expunge a caution from a person’s criminal record. Unlike some of the challenges covered by this book, expunging a caution does not simply mean that the information that is retained is changed: rather, it removes the underlying caution from the criminal record entirely. It will generally only be possible where the caution itself was unlawfully given. The chapter addresses the procedure to be followed to make an application, including the grounds on which an application can be made and the key features of a lawful caution by which to assess whether the caution in question might have been unlawfully administered. The chapter focuses on ‘simple cautions’ since they are most commonly encountered, but also briefly addresses the position in relation to conditional cautions. It also looks at the steps that can be taken if an application to expunge a caution is refused. Chapter 9 deals with judicial review. A claim for judicial review will often be the final step to take in relation to many of the issues encountered in this book, where the internal review or deletion processes have been refused. The chapter covers the key procedural features of bringing judicial review proceedings, including the time limit, the pre-action protocol, how to initiate a claim, the grounds to consider, and the stages that proceedings follow. Chapters 10 and 11 move away from retention and disclosure of criminal records, and look at disclosure of information to the public in the course of criminal proceedings themselves. Chapter 10 covers ‘anonymity’. Anonymity is taken there to mean both ‘true’ anonymity, ie  a person’s name not being used at all in proceedings, and anonymity as to the wider public, ie where a person’s real name is used in court but there is a reporting restriction preventing their identity being published outside the proceedings. The chapter looks at the situations in which ‘anonymity’ automatically applies, and the situations in which an application to protect a person’s identity can be made. It also looks at the situations in which a court must, or may, exclude the public from parts of a hearing. Chapter 11 then looks at reporting restrictions more generally, and the steps that can be taken to prevent or delay publication of matters relating to criminal proceedings. Chapters 12, 13 and 14 address the potential private law issues that may arise from the reporting of matters related to criminal proceedings. Chapter 12 sets out the general principles of privacy law and data protection law. Chapter 13 looks at how those principles apply to criminal investigations and arrests, criminal trials and other court proceedings, and the reporting of spent convictions. Chapter 14 addresses the right to erasure, also known as the right to be forgotten, by which individuals may apply for information about them to be removed from the internet on privacy and data protection grounds. 3

Introduction

Throughout this book, we have included Case Spotlights where relevant to give the reader more insight into the circumstances and findings of specific important cases. Many of the applications covered by this book can be made without a detailed knowledge of the cases underpinning them, but most of the systems and processes currently in place (for example, for the deletion of personal data, the making of representations on the inclusion of non-conviction information on an ECRC, and the filtering of convictions to limit disclosure) have been introduced in response to judgments of the courts which held that such processes were necessary to ensure compliance with individual’s rights. For that reason, an understanding of the cases will give a deeper appreciation of why the systems operate as they do, and are likely to give assistance on the way in which applications ought to be framed in order to succeed. We have, of course, not been able to include Spotlights on every relevant case and would encourage readers also to look at other cases which we have referenced in the chapters. Wherever possible, we have referred to cases by their neutral citation in order to make it easier for readers to locate them. Together, the chapters of this book address the primary issues likely to be faced by individuals with criminal records, and by the lawyers who act for them. From individuals under criminal investigation who wish to remain anonymous until they are charged, to those whose conviction was decades ago who wish to limit the ongoing disclosure of their crime, this book sets out the actions that can be taken on their behalf.

4

1 Sources of Law Governing the Management of Police Records Introduction 1.01 The term ‘management’ in the context of this book encompasses the process of creating and retaining police records that relate to individuals accused and convicted of criminal offences, the disclosure to third parties of those records and, ultimately, the deletion of those records. 1.02 The term ‘police records’ encompasses all personal information collected from an individual when they come into contact with the criminal justice system as either a suspect, defendant or convicted person, and which is stored on any one of the five main repositories of police records. These are the four national databases – the Police National Computer (PNC), the National DNA Database (NDNAD), the fingerprint database (IDENT1) and the Police National Database (PND) – plus the local systems of each individual police force in England and Wales. 1.03 Police records fall broadly into one of two categories – conviction1 or nonconviction2 information – with different rules and guidelines governing the retention and disclosure of records that fall into these categories.

1 These being records of offences that an individual has been found guilty of or pleaded guilty to in court, or offences that an individual has accepted a caution for after admitting guilt to the police. These records will be entered on the PNC and will remain there until the individual is deemed to have attained 100 years of age. It is possible to have a caution removed from the PNC by application to the police in certain circumstances (see Chapter 8). No such possibility exists in relation to convictions, save in very limited circumstances (see Chapter 7). 2 These being records of incidents that have come to the police’s attention but have not resulted in a conviction or a caution, for instance arrests resulting in no further action, charges that are discontinued at court or charges which result in acquittal after trial.

5

1.04  Sources of Law Governing the Management of Police Records

1.04 The law governing the management of police records is contained within a complex patchwork of provisions, legislation and binding guidance documents, the most important of which are: •

Article  8 of the European Convention on Human Rights (ECHR), incorporated into domestic law by the Human Rights Act 1998 (HRA 1998);

•

the Police and Criminal Evidence Act 1984 (PACE);

•

the Data Protection Act 2018 (DPA 2018), Part 3;

•

the Criminal Procedure and Investigations Act 1996 (CPIA  1996) and Code of Practice;

•

Home Office Counting Rules for Recorded Crime (HOCR) and the National Crime Recording Standard (NCRS);

•

the Code of Practice on the Management of Police Information 2005 (MoPI);

•

the College of Policing Authorised Professional Practice – Information Management: Management of Police Information (APP).

These are the sources of most general application but there are other sources that deal with more specific areas (such as deletion and disclosure) that will feature in later chapters.

Article 8 of the ECHR 1.05 Article 8 of the ECHR creates the right to respect for private and family life and states that: ‘1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’.

6

Article 8 of the ECHR 1.08

1.06 Article 8 is incorporated into domestic law by the HRA 1998, s 1 and Sch 1. By the HRA 1998, s 6 it is unlawful for public authorities (which includes police forces) to act incompatibly with the rights contained within it. Article 8 is a qualified right, which means that certain interferences with it will be lawful as long as they are justified in accordance with Article 8(2). 1.07 The European Court of Human Rights has held that ‘the protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8 of the Convention’3 and ‘the mere retention and storing of personal data by public authorities, however obtained, are to be regarded as having direct impact on the private-life interest of an individual concerned, irrespective of whether subsequent use is made of the data’.4 The Supreme Court has held that Article 8 is engaged by ‘the state’s systematic collection and storage in retrievable form’5 of information about an individual and that the collection and storage of personal information is an interference with a person’s private life. In order for that interference to be lawful, therefore, it must be done in accordance with the law and, in the context of criminal justice, in a manner that is proportionate to the objective of preventing disorder or crime.6 1.08 CASE SPOTLIGHT S  and Marper v United Kingdom ECtHR, App Nos 30562/04 and 30566/04 This was a case about the lawfulness of the police retaining biometric data, ie fingerprints and DNA. Both S and Mr Marper had been acquitted of offences, and applied to have their biometric data deleted.The police refused because at the time they operated a blanket policy of indefinitely retaining the fingerprints and DNA of all suspects, regardless of the seriousness of the allegation or the outcome of the case. The domestic courts upheld the police’s refusal, but on an application to the European Court of Human rights it was held that retaining their biometric data was a breach of their rights under the European Convention on Human Rights, Article 8. The Grand Chamber’s core findings, given on 4 December 2008, were that:

3 S and Marper v United Kingdom App Nos 30562/04 and 30566/04, para 103. 4 Ibid, para 121. 5 R (on the application of Catt); R (on the application of T) v Metropolitan Police Commissioner [2015] UKSC 9, para 6. 6 Ibid, para 17.

7

1.09  Sources of Law Governing the Management of Police Records

•

the applicants’ fingerprints, DNA profiles and cellular samples were part of their ‘private life’, and therefore retaining them interfered with their right to a private life;

•

it is possible to justify an interference with a person’s private life if the interference is: (a) in accordance with the law; (b) in pursuit of a legitimate aim; and (c) necessary in a democratic society. However, while there was a legitimate aim in retaining the data (the detection and prevention of crime), it was not necessary in a democratic society to do so – because a blanket policy that required the indefinite and indiscriminate retention of biometric data, even where a person was not convicted of a crime, failed to strike a fair balance between the individual’s rights and the interests of society. The interference with the applicants’ private lives was therefore disproportionate.

Importantly, the ECtHR held that, in order to comply with Article 8: •

domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of Article 8. The need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes (para 103);

•

domestic law should ensure that retained personal data is: –

relevant and not excessive in relation to the purposes for which it is stored;

–

preserved in a form which permits identification of the data subject for no longer than is required for the purpose for which those data is stored;

–

efficiently protected from misuse and abuse (para 103).

1.09 When a public authority is considering making a disclosure which would interfere with Article 8 (as most of the disclosures anticipated in this book would, since criminal records involve a person’s personal information), it must conduct a balancing exercise of the individual’s right to privacy against any other rights that are engaged, for example the need to prevent crime or safeguard vulnerable people. The balancing exercise is inherent in the scheme of fundamental rights which may at times compete or come into conflict with one another, as in Re S (a child) (identification: restriction on publication):7

7 [2004] UKHL 47, para 17, per Lord Steyn.

8

Data Protection Act 2018, Part 3 1.11

‘First, neither article [of Article 8 and Article 10] has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience, I will call this the ultimate balancing test’.

The Police and Criminal Evidence Act 1984 1.10 PACE governs the harvesting of biometric information by police officers in the course of investigations into criminal offences. Sections 61–64A give the police the power to take the following from suspects: •

fingerprints: s 61;

•

‘intimate samples’:8 s 62;

•

‘non-intimate samples’:9 s 63;

•

photographs: s 64A.

Chapter 4 looks at the provisions for retention and deletion of photographs and biometric information, which are also governed by PACE. PACE, s 27(4) is also taken to contain the statutory basis for the existence of the PNC (see Chapter 2). It states that: ‘The Secretary of State may by regulations make provision for recording in national police records convictions for such offences as are specified in the regulations’.

Data Protection Act 2018, Part 3 1.11 The DPA 2018 came into force on 25 May 2018. It is the principal legislation that governs the processing of an individual’s personal data within the UK, and Part 3 of the Act specifically covers the processing of personal data by law enforcement agencies. This part of the Act transposes the EU Data Protection 8 Defined in PACE, s 65 as (a) a sample of blood, semen or any other tissue fluid, urine or pubic hair; (b) a dental impression; (c) a swab taken from any part of a person’s genitals (including pubic hair) or from a person’s body orifice other than the mouth. 9 Defined in PACE, s 65 as (a) a sample of hair other than pubic hair; (b) a sample taken from a nail or from under a nail; (c) a swab taken from any part of a person’s body other than a part from which a swab taken would be an intimate sample; (d) saliva; (e) a skin impression.

9

1.12  Sources of Law Governing the Management of Police Records

Directive 2016/680 (Law Enforcement Directive)10 into domestic UK law. The Law Enforcement Directive complements the General Data Protection Regulation, and sets out the requirements for the processing of personal data for criminal law enforcement purposes. 1.12 Part 3 of the DPA 2018 applies to the processing by a ‘competent authority’ of personal data wholly or partly by automated means, and otherwise than by automated means, of personal data processed via a manual filing system that is searchable according to specific criteria.11 A ‘competent authority’ is defined as a person specified or described in Schedule  7 to the Act12 and any other person if and to the extent that the person has statutory functions for any of the ‘law enforcement purposes’. The ‘law enforcement purposes’ are defined as ‘the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security’.13 1.13 The Act places obligations upon ‘controllers’ and ‘processors’ to process personal data in accordance with it. A ‘controller’ is defined as a person who determines how and why personal data is processed, and for the purposes of law enforcement this is a competent authority.14 A ‘processor’ is anyone who processes personal data on behalf of a controller (other than a person who is an employee of the controller). 1.14 The Act places an obligation on controllers to process personal data in accordance with six data protection principles. The principles are: •

the processing must be lawful and fair;15

•

the law enforcement purpose for which personal data is collected on any occasion must be specified, explicit and legitimate, and personal data so

10 See https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2016.119.01.0089.01. ENG. 11 DPA 2018, s 29. 12 Examples include the Chief Constable of a police force maintained under the Police Act 1996, s 2 and The Commissioner of Police for the Metropolis – for a full list see Appendix B. 13 DPA 2018, s 31. 14 Ibid, s 32. 15 Ibid, s 35 – this section also states that where the processing of personal data is ‘sensitive processing’ (which is defined in sub-s (8) as (a) the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs or trade union membership; (b) the processing of genetic data, or of biometric data, for the purpose of uniquely identifying an individual; (c) the processing of data concerning health; (d) the processing of data concerning an individual’s sex life or sexual orientation) it is permitted only where there is an appropriate policy document in place and is either done with the consent of the individual or is ‘strictly necessary’ for a law enforcement purpose and meets at least one of the conditions in Sch 8 to the Act – see Appendix C.

10

Data Protection Act 2018, Part 3 1.15

collected must not be processed in a manner that is incompatible with the purpose for which it was collected;16 •

personal data processed for any of the law enforcement purposes must be adequate, relevant and not excessive in relation to the purpose for which it is processed;17

•

personal data processed for any of the law enforcement purposes must be accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that is inaccurate, having regard to the law enforcement purpose for which it is processed, is erased or rectified without delay;18

•

personal data processed for any of the law enforcement purposes must be kept for no longer than is necessary for the purpose for which it is processed;19

•

personal data processed for any of the law enforcement purposes must be so processed in a manner that ensures appropriate security of the personal data, using appropriate technical or organisational measures.20

1.15 As well as imposing obligations upon data controllers and processors as to how to manage personal data, the Act confers certain rights upon individuals, or ‘data subjects’, in relation to their personal data held by controllers. Those rights are: •

a right of access;21

•

a right of rectification;22

•

a right of erasure or restriction;23

•

a right not to be subject to automated decision-making.24

The right of access in s 45 is considered in detail in Chapter 3.

16 DPA 2018, s 36. 17 Ibid, s 37. 18 Ibid, s  38: sub-s  (2) states that ‘in processing personal data for any of the law enforcement purposes, personal data based on facts must, so far as possible, be distinguished from personal data based on personal assessments’. 19 Ibid, s 39. 20 Ibid, s 40. 21 Ibid, s 45: see Chapter 3. 22 Ibid, s 46. 23 Ibid, ss 47 and 48. 24 Ibid, s 49.

11

1.16  Sources of Law Governing the Management of Police Records

The right to rectification 1.16 The right to rectification in s 46 means that individuals have the right to have rectified any inaccurate25 personal data of which they are the subject held by controllers. Controllers must correct any inaccurate personal data that relates to the individual without undue delay, and in any event within one month from the first day after the request was received. Controllers must rectify it when it becomes apparent or where an individual requests it. If personal data is identified as inaccurate or incomplete as a matter of fact, controllers must amend this by rectifying or completing the data.

The right to erasure/restriction 1.17 The right to erasure in the DPA 2018, s 47 means that individuals have the right to request the deletion or removal of their personal data. The broad principle underpinning this right is to enable an individual to request the deletion or removal of personal data where there is no compelling reason for its continued processing.26 Section 47 states that data controllers must erase the personal data if its continued processing infringes any of the data protection principles. 1.18 Individuals also have the right to restrict the processing of their personal data. The DPA 2018 defines the restriction of processing as the ‘marking of stored personal data with the aim of limiting its processing for the future’.27 When processing is restricted, controllers are permitted to store the personal data but not further process it and can retain just enough information about the individual to ensure that they respect the restriction in future. Restriction could involve measures such as transferring data to a separate system, or limiting access to it, through the use of passwords and other access controls. 1.19 Controllers must erase personal data without undue delay if: •

the processing of the personal data will infringe the data protection principles;

25 ‘Inaccurate’ data includes ‘incomplete’ data: s 46(2). 26 Information Commissioner’s Office, Guide to Law Enforcement Processing, available at https://ico.org.uk/ for-organisations/guide-to-data-protection/guide-to-law-enforcement-processing/. 27 DPA 2018, s 84(6).

12

Data Protection Act 2018, Part 3 1.21

•

appropriate security for archiving and processing of sensitive personal data is not provided by the controller; or

•

there is a legal obligation upon the controller to erase the data.

If deletion is not technically possible, controllers should at least take steps to put the personal data ‘beyond use’. Controllers must respond to the request for erasure or restriction without delay and at the latest within one calendar month beginning with the ‘relevant time’.28

The right not to be subject to automated decision-making 1.20 The right not to be subject to automated decision-making in the DPA 2018, s 49 provides safeguards for individuals against the risk that a potentially damaging decision is taken by solely automated means, ie without human intervention. 1.21 Controllers may not take a qualifying significant decision based solely on automated processing unless that decision is required or authorised by law.29 A ‘qualifying significant decision’ is defined as a decision which significantly affects or produces an adverse legal effect on an individual and is authorised by law.30 Controllers must ensure that individuals are able to: •

obtain human intervention;

•

express their point of view; and

•

obtain an explanation of the decision and challenge it.

28 Ibid, ss 48(2)(a) and 54(2): s 54(3) defines the ‘relevant time’ as the latest of the following: (a) when the controller receives the request in question; (b) when the controller receives the information (if any) requested in connection with a request under s 52(4); (c) when the fee (if any) charged in connection with the request under s 53 is paid. 29 DPA 2018, s 49(1). 30 Ibid, s 49(1). Part 3 of the Act does not mention profiling in the context of automated decision-making but the Law Enforcement Directive 2016/680 provides that profiling and automated decision-making can be combined activities of the same process, or can be carried out separately.There may be cases of automated decisions made with (or without) profiling, and profiling which may take place without making automated decisions. The profiling which applies in this section has to involve some form of automated processing: ‘profiling that results in discrimination against natural persons on the basis of personal data which are by their nature particularly sensitive in relation to fundamental rights and freedoms should be prohibited under the conditions laid down in Articles 21 and 52 of the Charter (Charter of the Fundamental Rights of the European Union)’. Profiling, as defined in the DPA 2018, is any form of automated processing intended to evaluate certain personal aspects of an individual, in particular to analyse or predict their performance at work; economic situation; health; personal preferences; reliability; behaviour; location; or movements. Profiling based on special categories of data (or sensitive categories in the Act) which results in discrimination against individuals is prohibited. The right does not apply when a decision does not have an adverse legal or similarly significant effect on someone.

13

1.22  Sources of Law Governing the Management of Police Records

To qualify as human intervention, controllers must ensure that they carefully analyse the decision and consider all the available input and output data, rather than just a token review. This should be carried out by someone who has the authority and competence to change the decision. Controllers should inform an individual if they make a ‘qualifying significant decision’ about them.31 The individual then has one month to request the controller to review the decision, or take a new decision not based solely on automated means.32 Controllers must respond to the request within 21 days of receipt of their request and outline the steps they have taken, as well as the outcome.33

The Criminal Procedure and Investigations Act 1996 Code of Practice 1.22 The CPIA Code of Practice governs the collection and retention of material obtained in the course of an investigation into a criminal offence. Paragraph 5 of the Code places a duty on the investigator to retain material obtained in a criminal investigation which may be relevant to the investigation. The duty to retain material includes, in particular, the duty to retain material falling into the following categories, where it may be relevant to the investigation: •

crime reports (including crime report forms, relevant parts of incident report books or police officers’ notebooks);

•

custody records;

•

records which are derived from tapes of telephone messages (for example 999 calls) containing descriptions of an alleged offence or offender;

•

final versions of witness statements (and draft versions where their content differs from the final version), including any exhibits mentioned (unless these have been returned to their owner on the understanding that they will be produced in court if required);

•

interview records (written records, or audio or video tapes, of interviews with actual or potential witnesses or suspects);

•

communications between the police and experts such as forensic scientists, reports of work carried out by experts, and schedules of scientific material prepared by the expert for the investigator, for the purposes of criminal proceedings;

•

records of the first description of a suspect by each potential witness who purports to identify or describe the suspect, whether or not the

31 DPA 2018, s 50(2)(a). 32 Ibid, s 50(2)(b). 33 Ibid, s 50(3).

14

Home Office Counting Rules etc 1.27

description differs from that of subsequent descriptions by that or other witnesses; •

any material casting doubt on the reliability of a witness.

1.23 If a criminal investigation results in proceedings being instituted, all material which may be relevant must be retained at least until the accused is acquitted or convicted, or the prosecutor decides not to proceed with the case. 1.24 Where the accused is convicted, all material which may be relevant must be retained at least until either the convicted person is released from custody or discharged from hospital (in cases where the court imposes a custodial sentence or a hospital order), or six months from the date of conviction, in all other cases. If the court imposes a custodial sentence or hospital order and the convicted person is released from custody or discharged from hospital earlier than six months from the date of conviction, all material which may be relevant must be retained at least until six months from the date of conviction. 1.25 These are the minimum time-periods for retention of police records. Other guidance documents stipulate longer minimum retention periods (see below).

The Home Office Counting Rules for Recorded Crime and the National Crime Recording Standard34 1.26 The Home Office Counting Rules (HOCR) are binding upon all police forces in England and Wales and contain rules as to when a report of an incident is to be treated as a ‘notifiable crime’ and recorded by the police as such on their systems. 1.27 The HOCR split crimes into two categories: (i) those that are ‘victim related’; and (ii) crimes ‘against the state’. Crimes classed as victim related must be recorded if the police believe that on the balance of probabilities the incident reported by the victim amounts to a crime and there is no credible evidence to the contrary available. A belief by the victim that a crime has occurred is sufficient to justify its recording. Offences against the state are those that do

34 See https://www.gov.uk/government/publications/counting-rules-for-recorded-crime.

15

1.28  Sources of Law Governing the Management of Police Records

not involve a specific victim, and the decision to record these offences must be based upon all the available evidence.35 1.28 The rules state that each force must appoint a Force Crime Registrar as the final arbiter of recording decisions, interpreting the HOCR and assigning ‘outcomes’ (see below).36 1.29 The HOCR incorporate the National Crime Recording Standard (NCRS) (reproduced in the HOCR, Annex A), which lays down the general principles to be adhered to by police forces when reports of incidents are received by them, as follows (paragraph numbering taken from the NCRS as it appears in the HOCR): ‘2. The Standard directs a victim focused approach to crime recording. The intention is that victims are believed and benefit from statutory entitlements under the Code of Practice for Victims of Crime (CPVC). 2.1 All reports of incidents, whether from victims, witnesses or third parties and whether crime related or not, will, unless immediately recorded as a crime, result in the registration of an auditable incident report by the police.37 2.2  An incident will be recorded as a crime (notifiable offence) for “victim related offences” if, on the balance of probability: (a) the circumstances of the victim’s report amount to a crime defined by law (the police will determine this, based on their knowledge of the law and counting rules); and (b) there is no credible evidence to the contrary immediately available.

35 HOCR, Section A, ‘Recording State Based Offences’: ‘The points to prove to evidence the offence in each case must be assessed on their merit(s); this may involve an assessment of the evidence by the Crown Prosecution Service. If the role of the alleged offender is critical to establishing the offence a crime need not be recorded if the collated evidence fails to establish a bone fide case against a person. If previously recorded the offence could be considered for cancellation’. 36 HOCR, ‘Crime Recording – Supporting Processes’, para 1.1. 37 The rules in relation to the recording of incidents (as opposed to crimes) are laid out in the National Standard for Incident Recording 2011 (NSIR). An ‘incident’ for the purposes of the NSIR is defined as: ‘A single distinct event or occurrence which disturbs an individual’s, group’s or community’s quality of life or causes them concern’. Its provisions do not extend to ‘notifiable crimes’, which are governed solely by the HOCR and NCRS. For further information see https://assets.publishing.service.gov.uk/ government/uploads/system/uploads/attachment_data/file/116658/count-nsir11.pdf.

16

Home Office Counting Rules etc 1.30

2.3 A belief by the victim, or person reasonably assumed to be acting on behalf of the victim, that a crime has occurred is usually sufficient to justify its recording. 2.4 For ‘offences against the state’ the points to prove to evidence the offence must clearly be made out before a crime is recorded. 2.5  Once recorded, a crime will remain recorded unless additional verifiable information (AVI) is found and documented which determines that no notifiable crime has occurred or crimes are transferred or cancelled ie where crimes are created in error, or as a duplicate of an existing crime’. 1.30 Offences treated as notifiable crimes are assigned a number by the HOCR ‘Offence Classification Index’ and all recorded crimes must also be assigned one of the following outcome ‘types’ as part of the recording process: •

Type 1: a person has been charged or summonsed for the crime (irrespective of any subsequent acquittal at court);

•

Type 1A: a person has been charged or summonsed for the crime, but following the application of the CPS charging standards and the provisions of the HOCR, the charge/summons relates to an alternate offence to that recorded (irrespective of any subsequent acquittal at court);

•

Type 2: a youth offender has been cautioned by the police;

•

Type 2A: a youth offender has been cautioned by the police, but following the application of the CPS charging standards and the provisions of the HOCR, the caution relates to an alternate offence to that recorded;

•

Type 3: an adult offender has been cautioned by the police;

•

Type 3A: an adult offender has been cautioned by the police, but following the application of the CPS charging standards and the provisions of the HOCR, the caution relates to an alternate offence to that recorded;

•

Type 4: the offender admits the crime by way of a PACE compliant interview and asks for it to be taken into consideration by the court on Form MG18;

•

Type 5: the offender has died;

•

Type 6: a Penalty Notice for Disorder (or other relevant notifiable offence) has been lawfully issued under the Criminal Justice and Police Act 2001, ss 1–11;

•

Type 7: a warning for cannabis or khat possession has been issued in accordance with College of Policing Guidance; 17

1.30  Sources of Law Governing the Management of Police Records

•

Type 8: a Community Resolution (with or without formal restorative justice) has been applied in accordance with College of Policing Guidance;

•

Type 9: prosecution not in public interest (CPS decision);

•

Type 10: formal action against the offender is not in the public interest (police decision);

•

Type 11: prosecution prevented – named suspect identified but is below the age of criminal responsibility;

•

Type 12: prosecution prevented – named suspect identified but is too ill (physical or mental health) to prosecute;

•

Type 13: prosecution prevented – named suspect identified but victim or key witness is dead or too ill to give evidence;

•

Type 14: evidential difficulties, victim based – suspect not identified – the crime is confirmed but the victim declines or is unable to support further police action to identify the offender;

•

Type 15: evidential difficulties – named suspect identified – the crime is confirmed and the victim supports action (or the points to prove to evidence the offence have been made out in respect of state based matters) but evidential difficulties prevent further action;

•

Type 16: evidential difficulties, victim based – named suspect identified – the victim does not support (or has withdrawn support for) police action;

•

Type 17: prosecution time-limit expired – suspect identified, but the time limit for prosecution has expired;

•

Type 18: investigation complete – no suspect identified – crime investigated as far as reasonably possible – case closed pending further investigative opportunities becoming available;

•

Type 19: National Fraud Intelligence Bureau Filed (NFIB only):

•

–

19A: a crime of fraud having been recorded has not been allocated for investigation because the assessment process at the NFIB has determined there are insufficient lines of enquiry to warrant such dissemination and has not sent the crime to be reviewed by NFIB staff;

–

19B: a crime of fraud and cyber having been recorded and reviewed by NFIB staff, has not been allocated for investigation because the assessment by NFIB staff has determined there are insufficient viable lines of enquiry to warrant such dissemination;

Type 20: further action resulting from the crime report will be undertaken by another body or agency, subject to the victim (or person acting on their behalf) being made aware of the action to be taken; 18

Home Office Counting Rules etc 1.33

•

Type 21: further investigation, resulting from the crime report, which could provide evidence sufficient to support formal action being taken against the named suspect, is not in the public interest (police decision);38

•

Type 22: diversionary, educational or intervention activity, resulting from the crime report, has been undertaken and it is not in the public interest to take any further action.

The Schools Protocol 1.31 Crimes alleged between schoolchildren at school are governed by the ‘Schools Protocol’ in Section A and Annex B of the HOCR. The protocol presupposes that it is, in the first instance, the responsibility of school managers and staff, not police officers, to deal with and record behavioural incidents involving children and young people on a school site, even though it may be decided later that some cases amount to criminal offences. 1.32 When requested by the school, officers will consider the nature and seriousness of an incident following the Schools Protocol criteria before deciding whether to officially record the matter, immediately or at a later stage, as a recordable crime. A  list of ‘serious incidents’ appears at Annex B  of the HOCR; such incidents will always be recorded. In addition, a serious incident is one where, in the view of the complainant child, guardian or the child’s representative, the incident has led or was intended to, or is likely to or threatened to, lead to serious harm or loss to any child or young person. 1.33 When police receive a report about an incident that took place on school premises during normal school hours, which they would otherwise record as a notifiable offence they will, in the first instance, invite the victim or the person

38 Practitioners should be aware of the College of Policing Briefing Note ‘Police action in response to youth produced sexual imagery (“Sexting”)’, which states that outcome 21 may be considered the most appropriate resolution in youth produced sexual imagery cases where the making and sharing is considered non-abusive and there is no evidence of exploitation, grooming, profit motive, malicious intent (eg extensive or inappropriate sharing, for example uploading onto a pornographic website) or it being persistent behaviour. Assigning outcome 21 to a crime report designates it as ‘non-conviction’ information and therefore potentially disclosable on an ECRC (see para 5.13), but makes disclosure of the information unlikely unless the child is investigated or has further action taken against them in the future which could suggest a relevant pattern of behaviour. See https://www.college.police.uk/News/ College-news/Documents/Police_action_in_response_to_sexting_-_briefing_(003).pdf for the full text of the Briefing Note

19

1.34  Sources of Law Governing the Management of Police Records

acting on their behalf to report the matter to the head teacher, to be dealt with under normal school discipline procedures. 1.34 Such reports must be recorded as a crime-related incident only, until or unless: •

the police judge it to be a ‘serious incident’ as defined in Annex B; or

•

the police receive a formal request from the school to create a crime record; or

•

the complainant child, parent or guardian or the child’s representative asks the police to create a crime record.

The Code of Practice on the Management of Police Information 2005 1.35 This Code (MoPI) is a statutory Code of Practice, made by the Home Secretary, which came into force on 14 November 2005.39 Its stated aim is to assist police forces to carry out their duty to obtain and use a wide variety of information to discharge their duties effectively. 1.36 The responsibility for the management and use of information within the police force rests with the chief officer of the police force which owns the information.40 The term ‘management of police information’ is defined as including the processes of obtaining, recording, storing, reviewing, deleting and sharing information, including personal information, for ‘police purposes’.41 Police purposes are defined, in para 2.2, as: •

protecting life and property;

•

preserving order;

•

preventing the commission of offences;

•

bringing offenders to justice;

•

any duty or responsibility of the police arising from common law or statute.

39 The Code of Practice is made under the Police Act 1996, ss 39 and 39A and the Police Act 1997, ss 28, 28A, 73 and 73A: see http://library.college.police.uk/docs/APPref/Management-of-Police-Information. pdf. 40 MoPI, para 1.1.2. 41 Ibid, para 2.1.

20

Authorised Professional Practice 1.40

1.37 Paragraph 4 of MoPI sets out certain key principles governing the management of police information. In summary, it states that there is a duty on chief officers to obtain and manage information needed for police purposes. Information should be recorded where it is considered that it is necessary for a police purpose. Where appropriate, the source of the information, the nature of the source, any assessment of the reliability of the source, and any necessary restrictions on the use to be made of the information should be recorded to permit later review, reassessment and audit. 1.38 Information originally recorded for police purposes must be reviewed at intervals to be prescribed in guidance under MoPI (see para 1.40), which may prescribe different intervals for different categories of information. At each review, the likelihood that the information will be used for police purposes should be taken into account. On each occasion when it is reviewed, information originally recorded for police purposes should be considered for retention or deletion in accordance with criteria set out in the guidance under MoPI (see below). 1.39 The guidance will acknowledge that there are certain public protection matters which are of such importance that information should only be deleted if: •

the information has been shown to be inaccurate, in ways which cannot be dealt with by amending the record; or

•

it is no longer considered that the information is necessary for police purposes.

Authorised Professional Practice – Information Management: Management of Police Information42 1.40 Paragraph  4 of MoPI (above) refers to ‘detailed guidance’ issued under it. The detailed guidance is to be found in the College of Policing’s Authorised Professional Practice.43 The guidance breaks down the management of police information into four topics: •

collection and recording;

• evaluation; 42 The APP is available online at https://www.app.college.police.uk/app-content/informationmanagement/management-of-police-information/. 43 This guidance supersedes the ACPO Guidance on Management of Police Information (2nd edn, 2010).

21

1.41  Sources of Law Governing the Management of Police Records

•

common process; and

•

retention, review and disposal.

Collection and recording of information 1.41 In relation to the collection and recording of information, the APP lists key principles that must be adhered to: •

a record must have been created for a policing purpose;44

•

all records must comply with the data quality principles;45

•

a record of police information is the start of an audit trail and must identify who completed the record, when it was completed and for what purpose;

•

before recording information, checks should be made in other business areas to see whether the information is already held, thereby avoiding unnecessary duplication;

•

if information is recorded on an individual who is the subject of an existing record, the record should reflect this;

•

if it becomes apparent that the information being recorded is connected to other information, it must be appropriately linked;

•

police information must be recorded as soon as is practicable, in accordance with the standards relating to the business area in which the information is held;

•

consideration should be given to applying the appropriate government protective marking;46

•

where appropriate, the source of the information should be recorded to ensure accuracy and to assist in requesting further information.

Evaluation of information 1.42 In relation to the evaluation of information, the APP lists key principles that must be adhered to:

44 See MoPI, para 2.2. 45 These are that the data must be accurate, adequate, relevant (with a requirement that opinion be clearly distinguished from fact) and timely. 46 The marking can be ‘official’, ‘official-sensitive’, ‘secret’ or ‘top secret’.

22

Authorised Professional Practice 1.44

•

the provenance, accuracy and reliability of the information should be established; this includes assessment of the reliability of the source, risk to the source and subject, and risk to the storage and use of the information;

•

a risk assessment applies where appropriate;

•

links between different records are identified;

•

information is assessed for its intelligence value;

•

a priority assessment can be applied;

•

a decision is made on whether to sanitise the police information where the source or content is sensitive.47

Common processes 1.43 In relation to common processes, the APP states that processes must exist at force level, to enable information to be linked and composite records to be maintained so that information can be shared with other forces as necessary. The APP emphasises that the sharing of information is crucial in the context of certain public protection matters relating to the following: •

information relating to all offenders who have been managed under multi-agency public protection arrangements (MAPPA);

•

information relating to individuals who have been convicted, acquitted, arrested, questioned, charged or implicated in relation to murder, a serious offence as specified in the Criminal Justice Act 2003, or historical offences that would be charged as such if committed today;

•

potentially dangerous people, ie those who have not been convicted of, or cautioned for, any offence of a sexual or violent nature and who do not fall within any of the MAPPA categories, but where their behaviour gives reasonable grounds for believing that there is a real likelihood of them committing an offence or offences likely to cause serious harm.

Retention, review and disposal 1.44 The most important provisions of the APP are to be found in the section on retention, review and disposal. The APP states that the ‘review of police information is central to risk-based decision making and public protection. 47 Sanitisation of information occurs when material is removed which explicitly or implicitly identifies a source, or when identifying details of a data subject are removed.

23

1.45  Sources of Law Governing the Management of Police Records

Records must be regularly reviewed to ensure that they remain necessary for a policing purpose, and are adequate and up to date’. 1.45 The APP requires that scheduled reviews of the retention of information held on individuals must take place and be conducted according to the National Retention Assessment Criteria (NRAC). The key points relating to the NRAC are: •

the infringement of an individual’s privacy caused by retaining their personal information must satisfy the proportionality test;

•

forces should be confident that any records they dispose of are no longer necessary for policing purposes;

•

there should be a consistent approach to retaining police information;

•

records which are accurate, adequate, up to date and necessary for policing purposes are held for a minimum of six years from the date of creation, thereby helping to ensure that forces have sufficient information to identify offending patterns over time, and to help guard against individuals’ efforts to avoid detection for lengthy periods;

•

beyond the six-year period, there is a requirement to review whether it is still necessary to keep the record for a policing purpose. The review process specifies that forces may retain records only for as long as they are necessary. The NRAC template provides guidance on establishing whether or not information is still needed for a policing purpose.

1.46 The decision-making process in relation to the retention of records mandated by the NRAC is contained in the NRAC template.48 The template asks a series of questions, focused on known risk factors, in an effort to draw reasonable conclusions about the risk of harm presented by individuals or offenders. Wherever a record is assessed as being necessary and proportionate to the purpose it serves, it can be retained. These questions are: •

is there evidence of a capacity to inflict serious harm?

•

are there any concerns in relation to children or vulnerable adults?

•

did the behaviour involve a breach of trust?

•

is there evidence of established links or associations which might increase the risk of harm?

•

are there concerns in relation to substance misuse?

•

are there concerns that an individual’s mental state might exacerbate risk?

48 See Appendix I.

24

Authorised Professional Practice 1.50

1.47 Where the answer to any of the above questions is ‘yes’, information relating to the individual being assessed should be retained and reviewed again at intervals designated by a review schedule. Personal information held by police forces is subject to the following kinds of review: •

an initial review and evaluation;

•

any necessary triggered review;

•

scheduled review.

Initial review 1.48 An initial review is conducted at the point of input and must ensure that records comply with the principles outlined in evaluating police information (see para 1.42).

Triggered reviews 1.49 Each force should have its own policy for triggered reviews of personal information. The APP states that triggered reviews should take place where there are requests: •

for statutory disclosures, including those to the Disclosure & Barring Service (DBS);49

•

from other law enforcement agencies for information: these should be carried out before information is shared with external agencies;

•

for subject access under the DPA 2018.50

Scheduled reviews 1.50 The APP divides personal information held for policing purposes into four groups, with the group that the information falls into dictating when the scheduled review must take place.

49 See Chapter 5. 50 See Chapter 3.

25

1.51  Sources of Law Governing the Management of Police Records Group 1 – certain public protection matters

1.51 Group 1 information is information relating to any of the following: •

offenders who have ever been managed under MAPPA;51

•

individuals who have been convicted, acquitted, charged, arrested, questioned or implicated in relation to murder or a ‘serious offence’ as defined in the Criminal Justice Act 2003;52

•

‘potentially dangerous people’.

Information within this category should be retained until the individual it relates to is deemed to have reached 100 years of age. It should be reviewed every ten years to ensure it is adequate and up to date.53 Group 2 – other sexual, violent or serious offences

1.52 Group 2 information is information relating to other sexual,54 violent55 or serious56 offences not covered by Group 1. Once the individual to whom the information relates has completed a 10-year ‘clear period’ the police will review the information and assess whether the individual continues to pose a risk of harm using the NRAC.57 If they do not, the information should be disposed of. If they do, then the intelligence should be retained for a further 10-year clear period. The same review exercise should then take place on the expiry of this and every other subsequent 10-year clear period.

51 See https://www.gov.uk/government/publications/multi-agency-public-protection-arrangements-mappa —2 for an overview of MAPPA. Offenders managed under MAPPA will have been convicted of (or cautioned for) sexual or violent offences. 52 A ‘serious offence’ is an offence listed in the Criminal Justice Act 2003, Sch 15, that is punishable either with life imprisonment or with a determinate sentence of ten years or more. Examples include wounding with intent to cause grievous bodily harm, robbery, arson, rape, and sexual assault, possessing a firearm with intent to endanger life or cause fear of violence. 53 Information retained under this grouping can include intelligence of any grading. 54 A ‘sexual offence’ in this context is any listed in the Sexual Offences Act 2003, Sch 3. 55 A ‘violent offence’ in this context is any of those specified as such in the HOCR. 56 A ‘serious offence’ in this context is any offence detailed, recorded or listed as such on the Police National Legal Database: see https://www.pnld.co.uk. 57 For these purposes, a ‘clear period’ is the length of time since a person last came to the attention of the police as an offender or suspected offender for behaviour that can be considered a relevant risk factor. Further behaviour brought to the attention of the police and that indicates a relevant risk of harm will reset an individual’s clear period, as will a request for information made by other law enforcement agencies and requests for a criminal records check.

26

Authorised Professional Practice 1.54 Group 3 – all other offences

1.53 Records relating to people who are convicted, acquitted, charged, arrested, questioned or implicated for offending behaviour which does not fall within Group 1 or Group 2 are dealt with in Group 3. Records that fall within this group do not necessarily have to be reviewed. Forces may opt to use a system of time-based, automatic disposal for classes of information in this group. Forces which opt to use time-based disposal for all or a proportion of their Group 3 records must observe the following principles: •

the criteria by which forces decide which Group 3 records to review and which to automatically dispose of must be outlined in the force’s information management strategy;

•

the risk of disposing of records without review lies with the chief officer;

•

all records subject to time-based disposal must still be retained for an initial six-year period;

•

forces must have a mechanism for identifying those Group 3 individuals who continue to reoffend or who are implicated or suspected of being implicated in offending, and retain records relating to them;

•

forces must have a mechanism for identifying those individuals who have demonstrated a capacity for inflicting serious harm, using the NRAC and by flagging records relating to them for exception reviews (see below);

•

any Group 3 records that forces wish to retain for longer than the six-year clear period must be reviewed at five-yearly intervals and risk assessed using the NRAC.

Group 4 – miscellaneous

1.54 This group contains information on undetected crime, intelligence products, missing persons, and victims and witnesses. Undetected Group 1 offences: records should be retained for a minimum of 100 years from the date reported to the police. Other records of undetected offences should be retained for a minimum of six years from the date reported to the police. Forces should be mindful that these are minimum periods and that they may keep undetected crime records for longer if they feel it necessary. There are no additional requirements to review these records above and beyond the requirements imposed by relevant investigative guidelines. Intelligence products: should be reviewed in accordance with the review schedule guidance. The type of criminal activity being examined determines the length of time between reviews. 27

1.55  Sources of Law Governing the Management of Police Records

Missing persons: information relating to open missing persons cases should be retained until the person is located. For cases of missing persons who have subsequently been located safe and well, information should be retained for a minimum of six years. If this initial six-year period is clear, ie the individual does not go missing again and there are no subsequent indications of abuse, domestic violence or other factors that might place the individual at risk, the record should be disposed of. Victim and witness information: should be retained for an initial six-year clear period or for the length of time required by the CPIA 1996, if this is longer. Beyond this point, the decision about whether to retain victim and witness details should be made on a case-by-case basis. Records should be retained if they provide detail of an offender’s modus operandi or any relevant risk factors. Witness statements generally fall into this category. If, however, this detail is duplicated elsewhere, it could be deleted from the system.

Exception reviews 1.55 Forces are able to opt for a system of time-based disposal for records that relate to Group 3 offences. If, however, an offender’s or suspected offender’s behaviour suggests that they may pose a high risk of harm to others, forces must be able to highlight the relevant person’s records for an exception review, rather than dispose of them automatically. To determine whether an individual who has been accused, suspected, arrested, charged, convicted or acquitted of a Group 3 offence poses a high risk of harm, forces should use the criteria outlined in the NRAC. If the exception review identifies any of the following risk factors, the relevant person’s records must be directed into the review process: •

is there evidence of a capacity to inflict serious harm?

•

are there concerns in relation to children or vulnerable adults?

•

did the behaviour involve a breach of trust?

•

is there evidence of established links or associations which might increase the risk of harm?

•

are there concerns in relation to substance misuse?

•

are there concerns that the individual’s mental state might exacerbate risk?

The task of highlighting records for an exception review should be done at the point of record creation.

28

2 The Four National Databases Introduction 2.01 Personal, biometric and case-related data that is collected by the police will usually be retained on some or all of the four main national police information databases: the Police National Computer (PNC); the National DNA Database (NDNAD); the fingerprint database (IDENT1); and the Police National Database (PND). Not all information collected by the police will make its way on to the national databases and any information that does not could still be retained by the individual police force that collected the information on its local systems (this is known as ‘locally held information’). The PNC and PND are repositories of demographic information, whereas the NDNAD and IDENT1 are repositories of biometric information. This chapter will give a brief overview of the function of each database and the rules governing its operation.

The Police National Computer 2.02 The PNC has its genesis in 1974 and was initially simply a database for information about stolen vehicles. Since then, its application has grown and it is now the definitive source of information about an individual’s contact with the criminal justice system. 2.03 Section 27(4) of the Police and Criminal Evidence Act 1984 (PACE) is understood to contain the statutory authority for the PNC.1 It states that: ‘The Secretary of State may by regulations make provision for recording in national police records convictions for such offences as are specified in the regulations’. 1 See Chief Constable of Humberside Police, Chief Constable of Staffordshire Police, Chief Constable of Northumbria Police, Chief Constable of West Midlands Police, Chief Constable of Greater Manchester Police v The Information Commissioner [2009] EWCA Civ 1079, para 23.

29

2.04  The Four National Databases

This section creates the concept of ‘recordable offences’2 and empowers the Secretary of State to make regulations3 specifying the offences which can be recorded on the PNC if an individual is convicted of or cautioned for such an offence. 2.04 The PNC has several different applications, the most relevant of which – from the perspective of personal data – is the ‘Names’ application. This application holds data on persons (known as ‘nominals’ on the PNC) who: •

are the subject of judicial process for recordable offences, including information about the current status of judicial process against them;

•

have previous convictions, reprimands, warnings and cautions for recordable offences;

•

have been issued with Penalty Notices for Disorder;

•

have been acquitted of a recordable offence;

•

have been arrested and released without charge for a recordable offence.

2.05 When a person is arrested by any law enforcement agency for a recordable offence or certain categories of minor offence, details of that offence and its progress through the judicial system must be recorded on the PNC. The police force responsible for the area in which a recordable offence was committed is generally responsible for entering the appropriate data onto the PNC. If an individual is charged and sent to court, the court must notify its local police force of the outcome of the case and the police must then update the PNC. 2.06 The Code of Practice: The Police National Computer4 stipulates that at the ‘commencement of process’ into a recordable offence, 90% of each force’s total of recordable offences must be entered onto the PNC within 24 hours of the event and 100% must be recorded within three days of the event.5 The event 2 ‘Recordable offences’ are defined in PACE, s 118 as ‘any offence to which regulations under s 27 above apply’. 3 The regulations under PACE, s  27 currently governing recordable offences are The National Police Records (Recordable Offences) Regulations 2000, SI  2000/1139, which state that all imprisonable offences (and cautions, warnings and reprimands issued for imprisonable offences) are recordable offences, as are all offences listed in the Schedule of Specified Offences. Further regulations have added recordable offences to the Schedule over the years, the most recent at the time of writing being the National Police Records (Recordable Offences) (Amendment) Regulations 2016, SI 2016/1006, which added offences under the Crime and Disorder Act 1998, s  31(1)(1)(c) (offence of racially or religiously aggravated harassment, alarm or distress) to the Schedule. 4 See https://webarchive.nationalarchives.gov.uk/20080726171358/http://police.homeoffice.gov.uk/ publications/operational-policing/Police_nat_comp.pdf. 5 Code of Practice:The Police National Computer, para 30.

30

The Police National Computer 2.08

will be whatever has triggered the commencement of process – usually an arrest or summons, and therefore it will be the arrest/summons (A/S) report that needs to be uploaded onto the PNC within the relevant time frame.6 At the end of any process the Code of Practice also stipulates that 75% of case results must be inputted within seven days of the police being notified of the discontinuance/conclusion of process.7 2.07 Each time a person is processed by way of charge, report, summons, arrest or Penalty Notice for Disorder, a PNC report is created and this will generate an A/S number.8 There are 11 mandatory fields to complete before an A/S reference number is generated9 and the A/S number is then generated by the PNC. Every A/S number is allocated to a nominal record relating to an individual. 2.08 When a nominal record is created or updated on the PNC by virtue of the individual being the subject of arrest, caution, warning, reprimand, conviction, acquittal or Penalty Notice for Disorder the record will be retained on the PNC until that person is deemed to have reached 100 years of age, at which point it is ‘stepped down’ (not deleted, but available only to law enforcement). A nominal PNC record can be deleted earlier if it falls into one of the following categories:10 •

a successful application is made under the Record Deletion Process as defined in the guidance issued by the National Police Chiefs’ Council (NPCC) entitled Deletion of Records from National Police Systems;11

•

a Chief Constable has authorised it to be deleted;

•

there is one minor ‘unresulted’ conviction on the record, which has been there for a considerable amount of time without being resulted;12

•

an administrative error has occurred, eg a conviction has been shown in error when it was quashed or discharged prior to the Retention Guidelines

6 This has two prime functions: to alert any enquirer that process has commenced and to generate a unique reference (an A/S number) for cross-referencing subsequent fingerprint and DNA records. 7 Code of Practice: The Police National Computer, para 31. Interestingly, the Code is silent upon what should become of the other 25%, save for saying that if a ‘minor’ conviction remains unresulted for a ‘considerable amount of time’ then the record will be ‘weeded’, ie deleted. 8 The PNC User Manual states at p 326 that ‘The NPCC lead for Forensics has determined that an Arrest/ Summons Number should not be created on PNC as a means to record fingerprints and DNA, when these have been provided by a Voluntary Attendee, if there is no arrest or necessity to arrest. The process for recording information about Voluntary Attendees is likely to be subject to ongoing review’. 9 Name/Age/Sex/Ethnicity followed by: 1. Process Stage; 2. Process Stage Date; 3. Fingerprints Taken Y/N; 4. DNA details; 5. Name charged; 6. Date of Birth; 7. Arresting officer; 8. ACPO Offence Code; 9. Offence start date; 10. Offence Location; 11. Offence Location Description. 10 PNC User Manual, p 252. 11 See Chapter 5. 12 ‘Unresulted’ being taken to mean a conviction where the disposal or sentence is unknown.

31

2.09  The Four National Databases

coming into force on 1  April 2006 and under normal circumstances would have been deleted.

The National DNA Database 2.09 The NDNAD was established in 1995. It holds electronic records of deoxyribonucleic acid (DNA) taken from individuals and crime scenes, and provides the police with matches linking an individual to a crime scene or a crime scene to another crime scene. The NDNAD is operated by the Home Office on behalf of UK police forces, with governance and oversight provided by the NDNAD Strategy Board.As at 31 March 2017, NDNAD held 6,024,032 subject profile records and 555,362 crime scene profile records.13 2.10 In addition to a record being generated on the PNC, an individual’s arrest for a recordable offence will give the police the power under PACE14 to take a sample containing genetic material – usually a swab from the mouth – from that individual for the purpose of creating a DNA profile,15 to be placed on the NDNAD. Once the DNA sample has been harvested by the police it must be sent to an accredited laboratory, known as a Forensic Service Provider,16 to be processed and converted into a DNA profile,17 which is then uploaded onto the NDNAD. 2.11 The Protection of Freedoms Act 2012 and the Anti-Social Behaviour Crime and Policing Act 2014 amended PACE to establish the current framework for the retention of DNA samples and profiles held on the NDNAD. PACE, s 63R (inserted by the Protection of Freedoms Act 2012, s 14) requires all DNA samples taken from individuals to be destroyed as soon as a profile has been obtained from them (or in any case even where a profile has not been obtained

13 National DNA Strategy Board Annual Report 2016/2017, published July 2018. 14 See Chapter 1. 15 Defined as ‘the genetic interpretation of a DNA sample which is represented on the NDNAD as a series of numbers with a gender marker’: The NDNAD Strategy Board Police for Access and Use of DNA Samples, Profiles and Associated Data, para 5. 16 An organisation granted permission by the NDNAD Strategy Board to provide forensic DNA services to law enforcement agencies in respect of the processing of DNA samples and/or their interpretation of the results from that processing, for inclusion in, or comparison against the NDNAD: The NDNAD Strategy Board Police for Access and Use of DNA Samples, Profiles and Associated Data, para 5. 17 The Forensic Service Provider will look at discrete areas of the genome (which represents only a tiny fraction of that individual’s DNA) plus the sex chromosomes (XX for women and XY for men) and use these to produce a ‘subject’ profile consisting of 16 pairs of numbers (which correspond to the 16 areas analysed) and a sex marker derived from the sex chromosomes.

32

The National DNA Database 2.14

from the sample, the sample must be destroyed within six months unless it is retained under the Criminal Procedure and Investigations Act 1996).18 2.12 Depending on the circumstances, a DNA profile may be: •

retained indefinitely;

•

held for three to five years; or

•

destroyed immediately.

PACE, ss 63E–63O set out the circumstances in which DNA profiles must be destroyed or may be retained. 2.13 Applications by individuals for the deletion of records from the NDNAD are made under the NPCC  Record Deletion Process, which is covered in Chapter 5. 2.14 CASE SPOTLIGHT

Gaughran (Appellant) v Chief Constable of the Police Service of Northern Ireland (Respondent) [2015] UKSC 29 This case related to the lawfulness of the police’s retention of the appellant’s fingerprints, photograph, and DNA profile. Those had been obtained lawfully following a drink-driving matter. The question was whether they could continue to be retained. The policy of the police was to retain such data indefinitely. The court held that the data could be retained indefinitely. It differentiated the circumstances of this case from S and Marper (see para 1.08) because the data here related to people who had been convicted, whereas S and Marper was in relation to non-convicted persons. The rights and expectations of convicted persons differ from the rights and expectations of non-convicted persons. Although Article  8 of the European Convention on Human Rights was engaged and interfered with by the indefinite retention of a person’s DNA profile, fingerprints and photograph, the Supreme Court held that the

18 Under the Criminal Procedure and Investigations Act 1996 evidence can be retained where it may be needed for disclosure to the defence. This means that, in complex cases, a DNA sample may be retained for longer. This sample can only be used in relation to that particular offence and must be destroyed once its potential need for use as evidence has ended.

33

2.15  The Four National Databases

interference was justified and so there was no violation of Article 8. In the court’s view, indefinite retention was justified because of the importance of DNA in solving crime, the low level of interference with Article 8 that retention of the material represented, and the fact that the DNA sample was not retained (just the DNA profile). Further, the use to which the retained material could be put was limited by statute and the retention of data serves a deterrent effect where a person knows they can be identified if they reoffend. The court also commented that a retained DNA profile might also establish that the person concerned did not commit a particular offence.The benefits to the public of retaining the DNA profiles of convicted persons were potentially very considerable and outweighed the infringement of the Article 8 rights of the person concerned (para 40). It was proportionate and struck a fair balance to retain the data.

IDENT1 – The Fingerprint Database 2.15 IDENT1 is the central national service for holding, searching and comparing biometric information derived from fingerprints and palm prints on those who come into contact with the police as detainees after being arrested.19 Its primary capabilities include finger and palm print analysis, print search capabilities with access to international databases, verification of the identities of arrested persons, and information-sharing capabilities between the police forces and specialist agencies throughout the UK. It is operated in conjunction with ‘Livescan’, the means by which fingerprints are captured and sent electronically.20 2.16 Depending on the circumstances, fingerprints and palm prints may be retained indefinitely, held for three to five years or destroyed immediately. As with DNA profiles, PACE, ss  63E–63O set out the circumstances in which fingerprints must be destroyed or may be retained. 2.17 Applications by individuals for the deletion of records from IDENT1 are made under the NPCC Record Deletion Process (see Chapter 5).

19 PACE, s 61 gives the police the power to take fingerprints without consent from anyone detained in consequence of their arrest for a recordable offence. 20 The police’s operational capabilities in relation to this database now extend to the ability to check an individual’s fingerprints immediately at the point of arrest via the officers’ smartphone and a portable scanner.

34

The Police National Database 2.21

The Police National Database 2.18 The 2004 inquiry of Sir Michael Bichard into the murders of Holly Wells and Jessica Chapman in 2002 revealed that the police forces of England and Wales did not have a single, national IT database for sharing ‘soft’ intelligence – observations, reports and suspicions – on individuals who had come to the attention of the police in a way that would not have led to a record being generated on the PNC. The inquiry recommended that a national IT system for England and Wales should be introduced as a matter of urgency, to support police intelligence and allow the police to share ‘local’ force intelligence on a national basis. As a result, the PND was created and went live in 2011. 2.19 In its current form the PND is a nationally-hosted system which holds copies of records relating to crime, intelligence, custody, child protection and domestic abuse from all UK police forces and other law enforcement agencies. It allows users to search actual data records covering persons, organisations, organised crime groups, objects, locations and events (also known as POLE). 2.20 The Code of Practice on the Operation and use of the Police National Database21 states that the PND is to be used solely for ‘policing purposes’ and states that the strategic priorities the PND is meant to support are the following areas of policing: •

protecting children and vulnerable people, by being better able to understand the risk they are facing, and by more thorough vetting of people in positions of responsibility and trust;

•

understanding the threat posed by terrorism of whatever nature, and helping to reduce the risk of terrorist activity;

•

disrupting and preventing major, serious and organised crime, and helping to reduce the harm caused by the most dangerous offenders.

2.21 The Code of Practice is silent as to what information the police should be placing on the PND. It gives ultimate discretion to individual chief officers as to the policy to be adopted by their force, the only stipulation being that information which is placed on the PND must be managed in compliance with Authorised Professional Practice (APP).22 21 See https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/ 243554/9999102808.pdf. 22 See para 1.39.

35

2.22  The Four National Databases

2.22 Each police force in England and Wales therefore has its own policy as to its approach to the management and use of the PND. Some are more detailed than others. By way of example, Sussex Police’s policy states that the force will supply the following data to the PND: •

crime records for notifiable crimes recorded on Niche23 since May 2013, including linked suspects or offenders together with linked locations and object records;

•

intelligence reports recorded on Niche since May 2013, including linked suspects or offenders together with linked locations and object records. Source and provenance information will not be provided;

•

custody records recorded on Niche since February 2014 for all arrested persons in Sussex, including the disposal of the detention and the custody photograph. The detention log element will not be supplied;

•

domestic abuse: Crime or Crime Related Incident (CRI) records of all domestic abuse incidents recorded on Niche since May 2013, including linked suspects or offenders together with linked locations and object records;

•

child abuse: Crime or CRI records of all child abuse referrals recorded on Niche since May 2013, including linked suspects or offenders together with linked locations and object records;

•

victim records: victim information associated to any offences under the Sexual Offences Act 2003, Sch 3 or Sch 5 as held on Niche and linked to Crimes or CRIs.

2.23 The review, retention and disposal of police information on the PND is governed by the APP. Records held on the PND are not covered by the NPCC Record Deletion Process, therefore applications for deletion of these records should be made directly to the chief officer of the force that holds the records.

23 ‘Niche’ is Sussex Police’s local electronic records management system.

36

3 The Right of Access to Personal Data under the Data Protection Act 2018 Introduction 3.01 Any individual (or ‘data subject’) has the right under the Data Protection Act 2018 (DPA  2018), s  45 to request confirmation from the police that their personal data is being processed, or to request a copy of their personal data held by the police. A request for personal data under this section is known as a Subject Access Request (SAR). In this chapter we will look at how to make such an application for personal data held on police systems, and what remedies are available should the police not respond to such a request satisfactorily (or at all).

Making a Subject Access Request for personal data held on police systems 3.02 The DPA 2018 creates a statutory right of access to personal data held on police systems. Applications are governed by ss 45, 52 and 54 and relevant extracts are reproduced below: Section 45 (relevant extracts) (1) A data subject is entitled to obtain from the controller: (a) confirmation as to whether or not personal data concerning him or her is being processed, and (b) where that is the case, access to the personal data and the information set out in subsection (2). (2) That information is: (a) the purposes of and legal basis for the processing; 37

3.02  The Right of Access to Personal Data under the Data Protection Act 2018

(b) the categories of personal data concerned; (c) the recipients or categories of recipients to whom the personal data has been disclosed (including recipients or categories of recipients in third countries or international organisations); (d) the period for which it is envisaged that the personal data will be stored or, where that is not possible, the criteria used to determine that period; (e) the existence of the data subject’s rights to request from the controller: (i)

rectification of personal data (see section 46), and

(ii) erasure of personal data or the restriction of its processing (see section 47); (f)

the existence of the data subject’s right to lodge a complaint with the Commissioner and the contact details of the Commissioner;

(g) communication of the personal data undergoing processing and of any available information as to its origin. (3) Where a data subject makes a request under subsection (1), the information to which the data subject is entitled must be provided in writing: (a) without undue delay, and (b) in any event, before the end of the applicable time period (as to which see section 54). Section 52 (1) The controller must take reasonable steps to ensure that any information that is required by this Chapter to be provided to the data subject is provided in a concise, intelligible and easily accessible form, using clear and plain language. (2) Subject to subsection (3), the information may be provided in any form, including electronic form. (3) Where information is provided in response to a request by the data subject under section 45, 46, 47 or 50, the controller must provide the information in the same form as the request where it is practicable to do so. (4) Where the controller has reasonable doubts about the identity of an individual making a request under section 45, 46 or 47, the controller may: 38

Making a Subject Access Request for personal data held on police systems 3.03

(a) request the provision of additional information to enable the controller to confirm the identity, and (b) delay dealing with the request until the identity is confirmed. (5) Subject to section 53,1 any information that is required by this Chapter to be provided to the data subject must be provided free of charge. (6) The controller must facilitate the exercise of the rights of the data subject under sections 45 to 50. Section 54 (relevant extracts) (1) This section defines ‘the applicable time period’ for the purposes of sections 45(3)(b) and 48(2)(b). (2) ‘The applicable time period’ means the period of 1 month, or such longer period as may be specified in regulations, beginning with the relevant time. (3) ‘The relevant time’ means the latest of the following: (a) when the controller receives the request in question; (b) when the controller receives the information (if any) requested in connection with a request under section 52(4); (c) when the fee (if any) charged in connection with the request under section 53 is paid. 3.03 Subject Access Requests for information held on the Police National Computer are made via the ACRO Criminal Records Office2 using their online application form.3 Subject Access Requests for locally-held information are made directly to the police force which holds the personal data. Each police force will have its own form for making an SAR.4

1 Which deals with ‘manifestly unfounded or excessive’ requests by the data subject. 2 ACRO is a national police unit that is operationally focused on organising the management of criminal records information and improving the links between criminal records and biometric information.ACRO is hosted by Hampshire Constabulary and its policing powers derive from having a superintendent from the constabulary in position as the Head of ACRO. All ACRO staff are employees of the force. 3 Available online at https://www.acro.police.uk/subject_access.aspx. 4 Links to all the individual forces’ SAR application forms can be found at https://www.acro.police.uk/ subject_access.aspx.

39

3.04  The Right of Access to Personal Data under the Data Protection Act 2018

3.04 Solicitors making SARs on behalf of clients will need to obtain the client’s signed authority for the police to release the personal data to them as well as the client’s identification documents and proof of address. Making the application is largely a case of completing the paperwork correctly and sending it to the correct department as stipulated on the application form.5 The SAR to the individual police force should stipulate that all material held on the client is sought, including all evidential statements, Computer Aided Dispatch (CAD) messages, investigation logs (or Crime Reports), custody records and interview tapes/discs.

Challenging the adequacy of a response to a Subject Access Request 3.05 The most common failings encountered in responses by the police to SARs are a failure to respond within one month and/or the provision of incomplete/ redacted documents. 3.06 The Information Commissioner has a broad supervisory jurisdiction over data controllers in the UK, therefore any complaint about the manner in which a police force has responded (or failed to respond) to an SAR should be made to the Information Commissioner’s Office (ICO) in the first instance.6

Failure to respond within one month 3.07 If no substantive response to the SAR has been received within one month,7 the police force to which the SAR was made should be written to again with a further request for a response to the SAR, giving a reasonable amount of time in which to respond.

5 The DPA 2018 is not prescriptive as to the form an SAR must take and contains no formalities that must be met. It is not open to police forces to refuse to deal with applications on the basis of a failure to comply with any formalities that they have imposed upon the process, but it might assist the police with processing the application quickly if their own standard forms are used. 6 Complaints can be made online at https://ico.org.uk/make-a-complaint/. 7 Note that s 54(3) states that the one-month time-limit runs from the latest of the following: (a) when the controller receives the request in question; (b) when the controller receives the information (if any) requested in connection with a request under s 52(4); (c) when the fee (if any) charged in connection with the request under s 53 is paid.

40

Challenging the adequacy of a response to a Subject Access Request 3.10

3.08 If a response is still not received then a complaint can be made direct to the ICO pursuant to the DPA 2018, s 165(2).8 Section 165(4) states: ‘(4) If the Commissioner receives a complaint under subsection (2), the Commissioner must: (a) take appropriate steps to respond to the complaint, (b) inform the complainant of the outcome of the complaint, (c) inform the complainant of the rights under section 166, and (d) if asked to do so by the complainant, provide the complainant with further information about how to pursue the complaint’. 3.09 If an SAR has not been responded to within the prescribed timescale the ICO will usually intervene and make a direct request of the police force concerned to respond to the SAR. Should the data subject be dissatisfied with the action taken by the ICO, they can apply to a tribunal for an order to progress the complaint under the DPA 2018, s 166 or to a court for a Compliance Order under the DPA 2018, s 167 (see para 3.18).

Incomplete/redacted disclosure 3.10 The right of access under the DPA 2018, s 45(1) has limitations placed upon it by s 45(4): ‘(4) The controller may restrict, wholly or partly, the rights conferred by subsection (1) to the extent that and for so long as the restriction is, having regard to the fundamental rights and legitimate interests of the data subject, a necessary and proportionate measure to: (a) avoid obstructing an official or legal inquiry, investigation or procedure; (b) avoid prejudicing the prevention, detection, investigation or prosecution of criminal offences or the execution of criminal penalties; (c) protect public security; 8 Section 165(2) states: ‘a data subject may make a complaint to the Commissioner if the data subject considers that, in connection with personal data relating to him or her, there is an infringement of Part 3 or 4 of this Act’.

41

3.11  The Right of Access to Personal Data under the Data Protection Act 2018

(d) protect national security; (e) protect the rights and freedoms of others’. 3.11 Typically, disclosed documents will be redacted to prevent the disclosure of the personal data of third parties such as complainants/victims and witnesses. In principle, this is an entirely proper course of action to take as long as it is ‘necessary and proportionate’, but in some cases the disclosure will have been so heavily redacted that it is rendered largely unintelligible, or in other cases the police force will not have included within the disclosure an essential item that is known to be in its possession. 3.12 If the police force has restricted the information received in the disclosure, or refused to disclose any information, it must comply with the DPA 2018, s 45(5), which states: ‘(5)  Where the rights of a data subject under subsection (1) are restricted, wholly or partly, the controller must inform the data subject in writing without undue delay: (a) that the rights of the data subject have been restricted, (b) of the reasons for the restriction, (c) of the data subject’s right to make a request to the Commissioner under section 51, (d) of the data subject’s right to lodge a complaint with the Commissioner, and (e) of the data subject’s right to apply to a court under section 167’. 3.13 The DPA 2018, s 51 grants the data subject who has had their right of access restricted the right to request a review by the Information Commissioner of the restriction imposed by the police force: ‘(1) This section applies where a controller: (a) restricts under section 44(4) the information provided to the data subject under section 44(2) (duty of the controller to give the data subject additional information), (b) restricts under section 45(4) the data subject’s rights under section 45(1) (right of access), or 42

Challenging the adequacy of a response to a Subject Access Request 3.14

(c) refuses a request by the data subject for rectification under section 46 or for erasure or restriction of processing under section 47. (2) The data subject may: (a) where subsection (1)(a) or (b) applies, request the Commissioner to check that the restriction imposed by the controller was lawful; (b) where subsection (1)(c) applies, request the Commissioner to check that the refusal of the data subject’s request was lawful. (3) The Commissioner must take such steps as appear to the Commissioner to be appropriate to respond to a request under subsection (2) (which may include the exercise of any of the powers conferred by sections 142 and 146). (4) After taking those steps, the Commissioner must inform the data subject: (a) where subsection (1)(a) or (b) applies, whether the Commissioner is satisfied that the restriction imposed by the controller was lawful; (b) where subsection (1)(c) applies, whether the Commissioner is satisfied that the controller’s refusal of the data subject’s request was lawful. (5) The Commissioner must also inform the data subject of the data subject’s right to apply to a court under section 167. (6) Where the Commissioner is not satisfied as mentioned in subsection (4)(a) or (b), the Commissioner may also inform the data subject of any further steps that the Commissioner is considering taking under Part 6’.9 3.14 Requests for review under s 45(5) can be made online to the ICO using their complaints procedure, in the same manner as with complaints under s 165(2).

9 Part 6 of the DPA 2018 deals with the Information Commissioner’s powers of enforcement. In particular, the Information Commissioner has the ability to issue an Enforcement Notice under s 149 of the Act requiring the police force to take whatever steps are specified in the notice. Should the police force fail to do so, the ultimate sanction is a Penalty Notice under s 155 requiring the payment to the Information Commissioner of the amount of money specified in the notice (NB: this is not the same as the payment of compensation to a data subject).

43

3.15  The Right of Access to Personal Data under the Data Protection Act 2018

3.15 Should the data subject be dissatisfied with the action taken by the ICO they can apply to a tribunal for an order to progress the complaint under s 166 or to a court for a compliance order under s 167 (see para 3.18).

Application to the First-Tier Tribunal (General Regulatory Chamber) for an order to progress a complaint under the DPA 2018, s 166 3.16 Should a data subject make a complaint to the ICO under the DPA  2018, s 165(2) and not receive a response from the ICO within three months, or feel that the ICO’s response is unsatisfactory, the data subject can apply to a Tribunal under s 166 for an Order to progress the complaint. Section 16 provides: ‘(1) This section applies where, after a data subject makes a complaint under section 165 or Article 77 of the GDPR, the Commissioner: (a) fails to take appropriate steps to respond to the complaint, (b) fails to provide the complainant with information about progress on the complaint, or of the outcome of the complaint, before the end of the period of 3 months beginning when the Commissioner received the complaint, or (c) if the Commissioner’s consideration of the complaint is not concluded during that period, fails to provide the complainant with such information during a subsequent period of 3 months. (2) The Tribunal may, on an application by the data subject, make an order requiring the Commissioner: (a) to take appropriate steps to respond to the complaint, or (b) to inform the complainant of progress on the complaint, or of the outcome of the complaint, within a period specified in the order. (3) An order under subsection (2)(a) may require the Commissioner: (a) to take steps specified in the order; (b) to conclude an investigation, or take a specified step, within a period specified in the order. (4) Section 165(5) applies for the purposes of subsections (1)(a) and (2) (a) as it applies for the purposes of section 165(4)(a)’. 44

Applications to a court for a compliance order under s 167 3.18

3.17 The application to the First-Tier Tribunal (General Regulatory Chamber) must be made within 28 days of receipt of the ICO’s decision and is made using form T98 Notice of Appeal.10

Applications to a court for a compliance order under s 167 3.18 In addition to the right to apply to the First-Tier Tribunal (General Regulatory Chamber) for an order to progress a complaint, the DPA 2018 confers upon the data subject the right to make an application to a court for a compliance order under s 167: ‘(1) This section applies if, on an application by a data subject, a court is satisfied that there has been an infringement of the data subject’s rights under the data protection legislation in contravention of that legislation. (2) A court may make an order for the purposes of securing compliance with the data protection legislation which requires the controller in respect of the processing, or a processor acting on behalf of that controller: (a) to take steps specified in the order, or (b) to refrain from taking steps specified in the order. (3) The order may, in relation to each step, specify the time at which, or the period within which, it must be taken. (4) In subsection (1): (a) the reference to an application by a data subject includes an application made in exercise of the right under Article 79(1) of the GDPR (right to an effective remedy against a controller or processor); (b) the reference to the data protection legislation does not include Part 4 of this Act or regulations made under that Part. (5) In relation to a joint controller in respect of the processing of personal data to which Part 3 applies whose responsibilities are determined in an 10 See Appendix M.

45

3.19  The Right of Access to Personal Data under the Data Protection Act 2018

arrangement under section 58, a court may only make an order under this section if the controller is responsible for compliance with the provision of the data protection legislation that is contravened’. 3.19 The DPA 2018, s 180, confers jurisdiction to make orders under s 167 on either the county court or the High Court, therefore claims for orders under that section can be initiated in either court. Claims should be initiated using the procedure in Part 8 of the Civil Procedure Rules.11 There is currently no preaction protocol for claims under the DPA 2018, but it is good practice to send a Letter Before Action to the police force setting out the nature of the complaint, the remedy sought and giving the police force a reasonable amount of time in which to respond before issuing the claim.

11 See Civil Court Practice 2018 (The Green Book), III DAT [8]: the commentary currently relates to claims under the DPA 1998, but can by analogy be applied to claims under the DPA 2018.

46

4 Deleting Personal Information Held by the Police Introduction 4.01 It is possible for an individual to apply to have their personal data and/or biometric information deleted from police databases in certain circumstances. In this chapter we shall look at the procedures for doing so.

Home Office Counting Rules, Section C: ‘removing crime records’ 4.02 Section C  of the Home Office Counting Rules (HOCR)1 lists three bases upon which a police force is able to ‘cancel’ a crime and thereby delete any reference to it from their local records. They are: • C2 If additional verifiable information comes to light that no notifiable crime occurred: where, following the report and recording of a crime, additional verifiable information is available that determines that no notifiable offence has occurred, the crime may be removed; • C4 If the crime has been recorded in error: crimes which have been recorded in error or by mistake as a notifiable crime should be cancelled; • C5 If self-defence is claimed in relation to specific recorded assaults: where the recorded crime is one of assault within classification 8N2 (s  47 actual bodily harm only) or classification 1043 or 105A4 and evidence shows an offender has acted in self-defence a crime record may be cancelled.

1 2 3 4

See para 1.25. ‘Assault with injury’ but in this context only includes assaults up to actual bodily harm. ‘Assault without injury on a constable’. ‘Assault without injury’.

47

4.03  Deleting Personal Information Held by the Police

4.03 The HOCR state that decision-making in relation to the use of classifications C2–C5 inclusive should only be undertaken by individuals who are independent of the investigation of a particular crime or crimes. All such decision-makers must be properly trained in respect of the application of Section C  of the HOCR and the Force Crime Registrar should have appropriate and direct oversight of their decision-making. Cancellations under section C5 must be authorised by a trained dedicated decision maker5 or the Force Crime Registrar. 4.04 The above is, in effect, an internal procedure that the police must follow if circumstances arise that make it appropriate for them to do so. If, however, an individual has had a crime recorded against them and they believe that any of the above bases for cancellation apply, there is no barrier to them writing to the Force Crime Registrar of the force that owns the information seeking a review of the record and cancellation on the basis of C2, C4 or C5 enclosing any additional verifiable information in support.

The deletion of custody images 4.05 The retention and deletion of images taken of a person at the police station following arrest is governed by PACE, and paragraph 1 of the retention, review and disposal section of the College of Policing Authorised Professional Practice (APP).6 PACE, s 64A(4) states that: ‘(4) A photograph taken under this section: (a) may be used by, or disclosed to, any person for any purpose related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution or to the enforcement of a sentence; and (b) after being so used or disclosed, may be retained but may not be used or disclosed except for a purpose so related’.

5 The role of the dedicated decision maker is to review the full circumstances of the incident as reported and confirm the crime classification as recorded according to the HOCR or amend it as they deem appropriate. 6 See para 1.40 ff.

48

The deletion of custody images 4.09

4.06 Paragraph 1 of the retention, review and disposal section of the APP states that an individual may request that their custody image be deleted in the following circumstances: •

if they were not charged;

•

if they were not convicted of the offence for which the image was taken;

•

if they were convicted and a predetermined amount of time has elapsed since the conviction: 10 years in the case of Group 1 and 2 offences and six years in the case of Group 3 offences.7

4.07 The APP stipulates that there should be a strong presumption in favour of deletion in the following cases: •

where a person under 18 is convicted of a non-recordable offence;

•

where a person under 18 is arrested but not convicted of any offence.

The APP also stipulates that there should be a presumption in favour of deletion in the following cases: •

where a person under 18 is convicted of a recordable offence;8

•

where an adult is arrested but not convicted of an offence;

•

where an adult is convicted of a non-recordable offence.

4.08 The APP further stipulates that there is no presumption in favour of deletion in the case of an adult who is convicted of a recordable offence, but an application to delete the custody image of a person convicted of a recordable offence ‘will be considered’. There is no presumption in favour of retention in the case of a person convicted of a recordable offence, and an application will be assessed on its merits. 4.09 In all cases chief officers have the discretion to retain a custody image where this is deemed necessary for a ‘policing purpose’9 and there is an exceptional reason to do so. Examples might include where the individual is considered to pose a substantial risk of harm when assessed against National Retention Assessment

7 See para 1.49 ff for ‘Group 1, 2 and 3 offences’. 8 See para 2.03 for ‘recordable offences’. 9 See para 1.35 for ‘policing purposes’.

49

4.10  Deleting Personal Information Held by the Police

Criteria (NRAC).10 The APP stipulates that all applications for deletion of custody images need to be considered in the light of the NRAC criteria. 4.10 Where a formal request for deletion is not made, the image should be managed in line with the APP, which means that images should be deleted at the first scheduled review.11 4.11 In summary, therefore, APP information management governs the deletion of custody images by stipulating that upon receipt of an application to delete a custody image, the police force will look at whether or not the applicant was convicted of or cautioned for the offence for which the image was taken. If the person was not convicted or cautioned, the force will then consider the age of the applicant when the image was taken. If the applicant was under 18 then the force will apply a strong presumption in favour of deletion. If the applicant was over 18 then the force will apply a presumption in favour of deletion. 4.12 If the applicant was convicted of or cautioned for the offence for which the image was taken, the force will look at the Code of Practice on the Management of Police Information 2005 (MoPI) to work out which MoPI group the offence falls into: Group 1, 2 or 3. If it is a Group 1 or 2 offence, then 10 years must have elapsed since the image was taken before an application for deletion of the image will be considered. If it is a Group 3 offence then the period is six years. If these periods have not elapsed, the application will be rejected. If the requisite periods have elapsed, the force will then consider the age of the applicant when the image was taken. If the applicant was under 18 when the image was taken, there is a presumption in favour of deletion.12 If the applicant was over 18 when the image was taken and the offence is a recordable offence, the force will not apply any presumption either in favour of deletion or retention but will consider the application.13 4.13 In all cases, the application will be considered in the light of the NRAC criteria and the police force considering the application has an ultimate discretion to retain any custody image where it is deemed necessary for a policing purpose.

10 See para 1.43. 11 10 years for Group 1 and 2 cases and 6 years for Group 3 offences – see para 1.49 ff. 12 If the offence was a non-recordable offence there is a strong presumption in favour of deletion. 13 If the offence was a non-recordable offence there is a presumption in favour of deletion.

50

The deletion of biometric information 4.16

4.14 Applications for deletion of custody images should be made in writing direct to the police force that owns the image. Where the police force’s decision is to refuse deletion, the applicant should be informed of: •

the reasons for refusing deletion, unless there is a compelling reason not to do so, for example, ongoing investigation or intelligence that is not to be disclosed;

•

the date of the next review schedule;

•

the date when the applicant can reapply for deletion.

The deletion of biometric information 4.15 The Protection of Freedoms Act 2012 (PoFA 2012) inserted a raft of new sections into PACE that codify in statute the law in relation to the retention of an individual’s biometric information. Section 63D of PACE14 states that fingerprints and DNA profiles derived from DNA samples – collectively known as ‘section 63D material’ – must be destroyed if it appears to the responsible chief officer of police that the taking of the fingerprint or DNA sample was unlawful, or the fingerprint or DNA sample was taken in connection with an unlawful arrest or an arrest based on mistaken identity. In any other case section 63D material must be destroyed, unless it is retained under any power conferred by PACE, ss 63E–63O. PACE, s 63R (inserted by the PoFA 202, s 14) requires all DNA samples taken from individuals to be destroyed as soon as a profile has been obtained from them.15 4.16 PACE, s 63E states that section 63D material can be retained until the conclusion of the investigation into the offence, or the conclusion of the proceedings if the investigation gives rise to proceedings. The retention period of a person’s section 63D material will depend upon the type of offence they were arrested for or charged with. In this context offences are categorised as follows: •

‘qualifying offences’: all offences that are listed in PACE, s 65;

14 Inserted by the PoFA 2012, s 1. 15 Even where a profile has not been obtained from the sample, the sample must be destroyed within six months unless it is retained under the Criminal Procedure and Investigations Act 1996 (CPIA 1996). Under the CPIA 1996 evidence can be retained where it may be needed for disclosure to the defence. This means that, in complex cases, a DNA sample may be retained for longer. This sample can only be used in relation to that particular offence and must be destroyed once its potential need for use as evidence has ended.

51

4.16  Deleting Personal Information Held by the Police

•

‘recordable offences’: all offences that are punishable with imprisonment or feature in the Schedule of specific offences in the National Police Records (Recordable Offences) Regulations 200016 and subsequent regulations amending the Schedule;

•

‘minor offences’: any recordable offence that is not also a qualifying offence.

The retention period for a person’s s 63D material can be summarised in tabular form as follows: Event A person of any age arrested for a ‘minor offence’17 but not charged, ie no further action will be taken by the police A person of any age arrested and charged with a ‘minor offence’ but acquitted A person of any age arrested for a ‘qualifying offence’18 but not charged, ie no further action will be taken by the police

A person of any age charged with but not convicted of a qualifying offence A person under 18 awarded an out of court disposal, ie youth caution, reprimand or final warning for a qualifying offence

Retention period Automatically deleted as soon as the case is resulted on the Police National Computer (PNC) Automatically deleted as soon as the case is resulted on the PNC Automatically deleted as soon as the case is resulted on the PNC but the police have the power to apply to the Biometrics Commissioner to retain the information for up to three years and this period can be further extended by a District Judge to five years Three years from the date the fingerprints or DNA are taken, extendable up to five years on application to a District Judge Indefinite, but individuals can use the Record Deletion Process to apply to delete the record if they can evidence grounds

Section s 63D(3)

s 63D(3) s 63D(3)

s 63F

s 63I + s 65B

16 SI 2000/1139. There are other recordable offences that are not imprisonable and do not appear in the Schedule – the provision of law creating the offence should be checked, as it may state whether the offence is recordable or not. All qualifying offences are also recordable offences. 17 Any recordable offence that is not a qualifying offence. 18 Any offence listed in PACE, s 65.

52

The National Police Chiefs’ Council record deletion process 4.17

Event Adult awarded an out of court disposal, ie adult simple caution or conditional caution for any recordable offence A person of any age issued with a Penalty Notice for Disorder under the Criminal Justice and Police Act 2001, s 2 A person under 18 convicted of a minor offence

Retention period Indefinite, but individuals can use the Record Deletion Process to apply to delete the record if they can evidence grounds Two years from the date on which the fingerprints or DNA sample were taken

If it is a first conviction, five years from the date upon which the fingerprints or DNA sample were taken (if the custodial sentence is for less than five years, then five years plus the length of the custodial sentence) If it is a second conviction, indefinite If the custodial sentence is for over five years, indefinite A person under 18 convicted Indefinite of a qualifying offence Adult convicted of any Indefinite recordable offence

Section s 63I + s 65B

s 63L

s 63K(2) and (4)

s 63K(5) s 63K(3) s 63I s 63I

The National Police Chiefs’ Council record deletion process 4.17 On 19  May 2015 the National Police Chiefs’ Council issued a guidance document, entitled ‘Deletion of Records from National Police Systems (PNC/ NDNAD/IDENT1)’.19 Its purpose is to ensure that a consistent approach is taken by relevant chief officers and others in relation to dealing with applications for the deletion of records from national police systems, namely the PNC, the National DNA  Database (NDNAD) and the National Fingerprint Database

19 See Appendix J.

53

4.18  Deleting Personal Information Held by the Police

(IDENT1). Affected individuals are entitled to apply to the central Records Deletion Unit for their data to be deleted pursuant to this guidance. 4.18 The deletion guidance only extends to records held on the PNC, NDNAD and IDENT1, and not to locally-held records. Locally-held records are managed by chief officers in accordance with the APP.20 The guidance does not extend to the deletion of custody photographs; applications for deletion of custody photographs are made direct to the police force that took the image: see para 4.05. 4.19 Chief officers are ‘controllers’ as defined by the DPA  2018 and have the discretion in law to authorise the early deletion of records relating to legally retained biometric information (which they own on IDENT1 and NDNAD). PNC records are retained until a person is deemed to have reached 100 years of age, but chief officers can exercise their discretion, in exceptional circumstances, to delete conviction records that relate to ‘non-court’ disposals, ie adult simple cautions, conditional cautions, youth cautions, reprimands and warnings, as well as any ‘event history’21 that is owned by them and appears on the PNC. The process cannot be used to delete records of court convictions. 4.20 Individuals seeking the deletion of their biometric information or PNC record must complete the application form and state the grounds for having the record deleted. There is a specific form that must be completed when making such an application.22 The application is then sent to the ACRO Records Deletion Unit along with any supporting documents, for instance a detailed letter of representations. There is no fee. 4.21 The form (non-exhaustively) lists a number of grounds upon which chief officers are able to delete records, as follows: •

the sample was unlawfully taken;

•

mistaken identity;

•

no crime;

•

malicious/false allegation;

20 See para 1.40 ff. 21 This is the term used to describe the fact that a person was arrested, but it resulted in a ‘non-conviction’ outcome, such as acquittal, discontinuance and ‘no further action’ disposal. 22 See Appendix N.

54

Deleting locally-held records 4.24

•

proven alibi;

•

incorrect disposal;23

•

suspect status not clear at the time of arrest;

•

judicial recommendation;

•

another person convicted of the offence;

•

public interest.

4.22 The guidance states that the ‘basis for record deletion will be that an individual is no longer a suspect for the offence’ for which they were arrested or charged/ summonsed. The applications that are most likely to succeed therefore are those in which the applicant has been eliminated from enquiries based upon the grounds listed above (eg mistaken identity, alibi, status becomes clear after arrest etc). The guidelines make it clear that a ‘no further action’ disposal or an acquittal will not be sufficient in itself to lead to the record being deleted. Further, in the case of an individual who has been arrested more than once, where there exists a ‘concern of further connected criminality’, an application for early deletion will not be considered. The guidelines emphasise the need for ‘positive evidence’ that someone has been eliminated as a suspect before the chief officer will agree to delete a record.

Deleting locally-held records 4.23 The Record Deletion Process only applies to personal data that is held on the PNC, IDENT1 and NDNAD databases. Personal data will generally only find its way on to these databases if an arrest has taken place and/or an ensuing investigation has resulted in a charge. 4.24 These databases are, however, not the only repositories of information where an individual’s personal data can be stored after they come into contact with the police. It is possible for an individual to come into contact with the police without that contact resulting in a record being created on the national databases, for instance, when an individual attends a police station for a voluntary interview under caution. Individual police forces will generate records that might not be placed on the PNC, and these will be kept in either paper or electronic form

23 This is the main ground to be relied upon when an individual applies to expunge an unlawfully administered caution: see Chapter 8.

55

4.25  Deleting Personal Information Held by the Police

in a force’s data storage systems.24 These are known as ‘locally-held records’ and they are managed by chief officers in accordance with MoPI and the APP.25 4.25 Individuals who are investigated for criminal offences that are not proceeded with might feel aggrieved that their personal data is being held locally by the police and that the data associates them with an allegation of criminal wrongdoing. Such locally-held non-conviction information or intelligence can also be disclosed on an ECRC in certain circumstances.26 It is therefore important for practitioners to be alive to the possibility of applying to the police to delete these records. 4.26 Applications for deletion of locally-held non-conviction information or intelligence are made direct to the police force that holds the information. Each police force will have a specific department or a Data Protection Officer who deals with such requests. Some forces will also have a specific form to complete when making such a request,27 but such requests should usually be made by detailed letter of representations, enclosing any supporting evidence. 4.27 Applications of this nature are essentially applications for erasure of data pursuant to the DPA 2018, s 47. The application should, therefore, address how the retention of the data infringes any of the six data protection principles.28 It should also address whether or not there are grounds for the record of the crime to be cancelled under HOCR, section C2, C4 or C5 (see para 4.02), and should address the issue of proportionality under the European Convention on Human Rights (ECHR), Article 8. 4.28 The police are generally reluctant to accede to applications for the deletion of personal data, and prefer to manage the data that they own according to MoPI and the APP. However, MoPI and the APP should not be taken as containing inflexible rules that prohibit the deletion of personal data before a period of six years has elapsed. Chief officers have ultimate discretion as to whether to delete an individual’s personal data, and that discretion must be exercised in accordance with the ECHR, Article  8. This means that the retention of the

24 This material will be items such as crime reports, custody records, witness statements, interview discs and CCTV. 25 See Chapter 1. 26 See Chapter 5. 27 See Appendix L for an example: the Metropolitan Police’s DPA Data Dispute Form. 28 See para 1.04.

56

Deleting locally-held records 4.29

personal data must always be justified. The ‘Five Chief Constables’ case29 and the case of Gaughran v Chief Constable of the Police Service of Northern Ireland30 make it clear that the retention of conviction information will probably always be regarded by the courts as being justified.31 The position in relation to nonconviction information, though, is more nuanced and the police should be more open to considering applications for deletion of information of this nature, which will invariably be highly fact-specific.32 4.29 CASE SPOTLIGHT

Chief Constable of Humberside Police, Chief Constable of Staffordshire Police, Chief Constable of Northumbria Police, Chief Constable of West Midlands Police, Chief Constable of Greater Manchester Police v Information Comr (Secretary of State for the Home Dept intervening) [2009] EWCA Civ 1079 The issue in this case was whether the retention of the data relating to minor convictions was: (1) excessive in relation to the purpose for which it was processed (and thereby a breach of the ‘Third Data Protection Principle’); and (2) kept for longer than necessary, bearing in mind the purpose for which it was processed (and thereby a breach of the ‘Fifth Data Protection Principle’). The Information Commissioner had found that retention of minor convictions was a breach of the data protection principles under the DPA 1998; the Chief Constables appealed to the Court of Appeal. The Court of Appeal found, in favour of the Chief Constables, that the data protection principles were not breached by the retention of the minor conviction data. That was because the Chief Constables had registered purposes for retaining the data, one of which was to be able to supply accurate records of convictions to the Crown Prosecution Service, the courts and the Criminal Records Bureau [now the Disclosure & Barring Service]. Since those bodies required a complete record of convictions, spent and otherwise, it could not be said that the data being retained was excessive or being retained for longer than necessary for those purposes (see paras 35 and 36 of the judgment). The tribunal had been wrong to hold that retention of the information was a breach of the third and fifth principles by reference to statistical

29 Chief Constable of Humberside Police, Chief Constable of Staffordshire Police, Chief Constable of Northumbria Police, Chief Constable of West Midlands Police, Chief Constable of Greater Manchester Police v Information Comr (Secretary of State for the Home Dept intervening) [2009] EWCA Civ 1079. 30 [2015] UKSC 29. 31 Although see the powerful dissenting judgment of Lord Kerr in Gaughran. 32 See for instance the case of Ms T in R (on the application of Catt) v Metropolitan Police Commissioner; R (on the application of T) v Metropolitan Police Commissioner [2015] UKSC 9.

57

4.30  Deleting Personal Information Held by the Police

evidence relating to the risk of future offending. If the police said, rationally and reasonably, that convictions, however old or minor, had a value in the work they did, that should, in effect, be the end of the matter (see para 43). The court was also concerned that using the DPA 1998 to delete old or minor convictions would subvert the statutory regime for the disclosure of criminal convictions under the Rehabilitation of Offenders Act 1974 and the Police Act 1997. Parliament had legislated in this area and the legislation mandated the disclosure of all convictions on an individual’s record in certain circumstances. The court therefore held that it was not the purpose of the DPA to ‘overrule the will of Parliament by a side wind’ (para 44). It was also compatible with the EU Directive that the DPA implemented for a complete register of all convictions to be maintained.

Complaint to the Information Commissioner’s Office pursuant to the Data Protection Act 2018, s 165(2) 4.30 If the police refuse to delete an individual’s personal data (either following an application via the Record Deletion Process or direct to the force that owns the data), an individual can complain to the Information Commissioner’s Office pursuant to the DPA 2018, s 165(2).33 Section 165(4) of the Act states: ‘(4) If the Commissioner receives a complaint under subsection (2), the Commissioner must: (a) take appropriate steps to respond to the complaint, (b) inform the complainant of the outcome of the complaint, (c) inform the complainant of the rights under section 166, and (d) if asked to do so by the complainant, provide the complainant with further information about how to pursue the complaint’. 4.31 Should a data subject make a complaint to the ICO under the DPA  2018, s  165(2) and not receive a response from the ICO within three months, or feel that the ICO’s response is unsatisfactory, the data subject can apply to the First-Tier Tribunal (General Regulatory Chamber) under s 166 for an order to progress the complaint.34 33 The DPA 2018, s 165(2) states: ‘A data subject may make a complaint to the Commissioner if the data subject considers that, in connection with personal data relating to him or her, there is an infringement of Part 3 or 4 of this Act’. Complaints can be made online at https://ico.org.uk/make-a-complaint/. 34 See para 3.13.

58

Judicial review versus DPA 2018, s 167 4.36

Applications to a court for a compliance order pursuant to DPA 2018, s 167 4.32 If the police force refuses to delete an individual’s personal data, the DPA 2018, s 167 confers upon the data subject the right to make an application to a court for a compliance order against the police force concerned which would, if successful, oblige the police force to delete the data. 4.33 The DPA 2018, s 180 confers jurisdiction to make orders under s 167 on either the county court or the High Court, therefore claims for orders under that section can be initiated in either court. Claims should be initiated using the procedure in Part 8 of the Civil Procedure Rules.35 4.34 There is currently no pre-action protocol for claims under the DPA 2018, but it is good practice to send a Letter Before Action to the police force setting out the nature of the complaint, the remedy sought and giving the police force a reasonable amount of time in which to respond before issuing the claim.

Judicial review versus DPA 2018, s 167 4.35 A decision by the police to refuse to delete personal data is, as the decision of a public body, capable of being judicially reviewed. As well as a specific right of action for erasure of data pursuant to the DPA 2018, ss 47 and 167, therefore, an individual faced with a refusal by the police to delete their personal data can also ostensibly judicially review that decision by arguing that the continued retention of the data is irrational and/or unlawful. 4.36 Were an individual to litigate an action for record deletion as a pure judicial review claim, however, it may be met by an argument from the defendant that there exists an alternative remedy under the DPA 2018, s 167. Since judicial review is a remedy of last resort, if there is an adequate alternative remedy available, that would defeat the judicial review.36

35 The Civil Court Practice 2018 (The Green Book), III DAT [8]: the commentary currently relates to claims under the DPA 1998, but can by analogy be applied to claims under the DPA 2018. 36 Judicial review is covered in more detail in Chapter 9.

59

4.37  Deleting Personal Information Held by the Police

4.37 The interplay between judicial review and s  167 was discussed in R  (on the application of Maha El Gizouli) v Secretary of State for the Home Department,37 with the court making the following observation: ‘There can be little doubt that if a data subject issued judicial review proceedings when enforcement was available to him either directly under the 2018 Act or via the Information Commissioner, he or she would very likely be met with a successful alternative remedy argument. The remedies available in judicial review proceedings, even if that preliminary obstacle were overcome, would necessarily be fashioned with an eye to those provided in the statutory scheme’.38 From this passage it might seem as if claims for the erasure of data should only be advanced pursuant to the DPA 2018, s 167. However, there is no barrier to a claimant also pleading in addition to breaches of the DPA 2018 that the refusal to erase the data is a breach of their Article 8 rights.39 4.38 Article  8 features heavily in the case law on this subject and it has been ‘emphasised on many occasions that cases of this kind turn heavily on their particular facts’.40 It is therefore difficult to derive general principles from the decided cases, other than that the ECHR, Article 8 is engaged and interfered with by the retention of personal data by public authorities, and the retention must therefore be justified as being in accordance with the law and necessary in a democratic society41 for the pursuit of one of the stated aims in Article 8(2).42 In this context, the courts have considered the retention43 of: •

records of minor convictions on the PNC;44

•

DNA and fingerprints;45

37 [2019] EWHC 60 (Admin). 38 Ibid, at para 162. 39 See Hussain v Metropolitan Borough of Sandwell [2017] EWHC 1641 (Admin), para 240. 40 R (on the application of Catt) v ACPO [2013] EWCA Civ 192, para 5. 41 An interference will be considered ‘necessary in a democratic society’ for a legitimate aim if it answers a ‘pressing social need’ and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’: S and Marper v United Kingdom App Nos 30562/04 & 30566/-04, para 101. 42 R (on the application of Catt) v Metropolitan Police Commissioner; R (on the application of T) v Metropolitan Police Commissioner [2015] UKSC 9 para 6. 43 There is a separate, although intimately connected, body of case law in relation to the disclosure of personal conviction and non-conviction information: this is addressed in Chapter 5. 44 Chief Constable of Humberside Police, Chief Constable of Staffordshire Police, Chief Constable of Northumbria Police, Chief Constable of West Midlands Police, Chief Constable of Greater Manchester Police v Information Comr (Secretary of State for the Home Dept intervening) [2009] EWCA Civ 1079; Gaughran v Chief Constable of the Police Service of Northern Ireland [2015] UKSC 29. 45 S and Marper v United Kingdom App Nos 30562/04 & 30566/04; R (on the application of GC) v Metropolitan Police Commissioner [2011] UKSC 21.

60

Judicial review versus DPA 2018, s 167 4.39

•

custody photographs;46

•

non-conviction information;47 and

•

police-issued ‘prevention of harassment’ letters.48

4.39 CASE SPOTLIGHT R (on the application of Catt) v Metropolitan Police Commissioner; R (on the application of T) v Metropolitan Police Commissioner [2015] UKSC 9 [Application number 43514/15, Judgment of 24 January 2019] Mr John Catt objected to the retention on a police database, known as the ‘Domestic Extremism Database’ (DED), of records of his participation in political demonstrations going back to 2005. He had been active in the peace movement since 1948, was 91 years of age and had never been convicted of any criminal offence, although one of the groups with which he protested had members who had committed violent crimes. Ms T had been alleged to have made a homophobic remark to a neighbour, after which she was served with a Prevention of Harassment letter, a copy of which the police intended to retain for 12 years, pursuant to their policy at the time. Both respondents objected to the retention by the police of the information about them on a searchable database, arguing that it was a disproportionate interference with their Article 8 rights. The Supreme Court held that the police’s retention of the data was not an infringement of the respondents’ Article 8 rights. The following main points were made: •

the state’s systematic collection and storage in retrievable form of public information about an individual was an interference with private life and Article  8 was therefore engaged. It followed that the appeals turned on whether the interference was justified under Article 8(2), in particular whether the retention of the data was: (i) in accordance with law; and (ii) proportionate to the objective of securing public safety or preventing disorder or crime (see para 6 of the judgment);

46 R (on the application of RMC & FJ) v Metropolitan Police Commissioner [2012] EWHC 1681 (Admin). 47 Ibid; R  (on the application of Catt) v Metropolitan Police Commissioner; R  (on the application of T) v Metropolitan Police Commissioner; R (on the application of CL) v Chief Constable of Greater Manchester Police [2018] EWHC 333 (Admin); Catt v United Kingdom, Application No 43514/15. 48 R (on the application of T) v Metropolitan Police Commissioner [2015] UKSC 9; R (on the application of Juliet Green) [2018] EWHC 3657 (Admin).

61

4.39  Deleting Personal Information Held by the Police

•

the court found that the retention of data in police information systems in the UK was in accordance with the law, citing in support of its conclusion the DPA 1998 as an intensive regime of statutory and administrative regulation of data processing (see Chapter 1);

•

the interference with Mr Catt’s private life was characterised as ‘minor’, because the information stored was not intimate or sensitive; no intrusive procedures had been used to discover it because it related to observations by uniformed officers in public places; the retention of his personal data in the records did not carry any stigma of suspicion or guilt; the material was not usable or disclosable for any purpose other than police purposes; and the material was periodically reviewed for retention or deletion according to rational and proportionate criteria based on an assessment of danger to the public and value for policing purposes (see paras 25 and 26 of the judgment). The retention of his data was justified by the legitimate requirements of police intelligencegathering in the interests of the maintenance of public order and the prevention of crime (see para 34 of the judgment);

•

in Ms T’s case the Prevention of Harassment letter served the legitimate policing functions of preventing crime and, if a repetition of the behaviour occurred, assisting in bringing the accused to justice (see para  42 of the judgment). It could not be justified to retain it for 12 years as a blanket period of time irrespective of the nature of the incident, but since it had in fact been deleted after two and a half years, there was no violation of Article 8.

Mr Catt applied to the European Court of Human Rights. Contrary to the Supreme Court’s judgment, the ECtHR concluded that Mr Catt’s Article 8 rights had been violated by the police’s retention of records of his participation in peaceful demonstrations.There was a pressing social need to collect his personal data because he had publicly aligned himself with a violent protest group. There was, however, no pressing social need to retain his data for an indefinite period and there was an absence of effective safeguards to protect against the retention of his data for an excessive amount of time. The data ought also to have attracted a heightened level of protection because it concerned his political opinions. Personal data revealing political opinion fell into a special category of sensitive data attracting a heightened level of protection, and the safeguards currently in place were not sufficient to protect against disproportionate retention of data. There was therefore a violation of Article 8.

62

5 The Disclosure & Barring Service and Disclosure of Criminal Records Introduction 5.01 The contexts in which individuals are most commonly called upon to disclose their criminal record are in the fields of employment/volunteering and immigration. The rules governing when an individual’s criminal record will be disclosed to a potential employer or immigration authority are complex and this chapter is intended to give an overview of the existing legal framework governing disclosure. 5.02 The principal legislation which deals with disclosure of an individual’s criminal record in the employment/volunteering context is the Rehabilitation of Offenders Act 1974 (the ROA  1974) as amended by the Criminal Justice and Immigration Act 2008, and the Police Act 1997, Part V. This legislation is supplemented by two statutory instruments: the Police Act 1997 (Criminal Records Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013;1 and the Rehabilitation of Offenders Act (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013.2 5.03 Following the Supreme Court decision in R (on the application of T) v Secretary of State for the Home Department3 the secondary legislation referred to above was enacted to create a comprehensive scheme for the disclosure of criminal records, commonly known as the ‘filtering’ scheme. That scheme has been considered by the Supreme Court in the case of P, G & W v Secretary of State for the Home Department4 and certain elements of it have been declared to be incompatible with the European Convention on Human Rights (ECHR), Article  8. This means that, at the time of writing, the scheme continues to 1 SI 2013/1200. 2 SI 2013/1198. 3 [2014] UKSC 35. 4 [2019] UKSC 3.

63

5.04  The Disclosure & Barring Service and Disclosure of Criminal Records

operate as mandated in the legislation, but the government may at some point introduce new legislation to make the scheme compatible with Article 8. 5.04 Disclosure of criminal records in the immigration context is done via the ACRO Police Certificate scheme, which is subject to the ‘step down’ model (see para 5.52).

Self-disclosure and the Rehabilitation of Offenders Act 1974 5.05 Under the ROA 1974 individuals are not required to disclose convictions and cautions once they have become ‘spent’. A conviction or caution will become spent after a certain period of time, known as the ‘rehabilitation period’, has elapsed.5 The amount of time that has to pass before a conviction becomes spent depends upon the sentence that was received for the offence and the age of the individual when they were convicted. Examples of the most common rehabilitation periods are as follows6: Sentence

Imprisonment for over four years Community Order and Youth Rehabilitation Order Fine Conditional discharge Simple caution or youth caution

Rehabilitation period Over 18 at date of Under 18 at date of conviction conviction Never spent Never spent Full length of the Order Full length of the Order plus one year plus six months One year Full length of the discharge period Spent immediately

Six months Full length of the discharge period Spent immediately

5 In practical terms, this means that if they are asked whether or not they have any convictions or cautions (for instance on an application form for a job or insurance) they are entitled by law to answer ‘no’ to that question if the conviction or caution is spent. 6 For a more comprehensive list see Appendix F.

64

The Disclosure & Barring Service 5.08

5.06 The protection from the requirement to disclose is subject to the Rehabilitation of Offenders Act 1974 (Exceptions) Order 19757 (the 1975 Order). The 1975 Order removes the protection of non-disclosure in certain specified circumstances. In particular, Article 3 of the 1975 Order removes the protection in relation to questions asked in order to assess suitability for employment in the various positions listed in Schedule 1 to the 1975 Order. Article 4 removes the protection in relation to applications for jobs, inter alia, working with children and vulnerable adults. Questions asked of candidates for employment in these fields are, therefore, not subject to the protection of the ROA 1974. This means that an individual who applies for positions in these areas must, if asked,8 selfdisclose convictions and cautions even if they are spent. The individual will not have to disclose certain convictions and cautions if they are classified as ‘protected’,9 and are therefore subject to the ‘filtering’ scheme (see para 5.15).

The Disclosure & Barring Service 5.07 The Disclosure & Barring Service (DBS) came into being on 1  December 2012 following the merger of the functions of the Criminal Records Bureau and the Independent Safeguarding Authority. Under the Police Act 1997, Part V,10 the DBS is required to issue a Criminal Record Certificate (CRC) or an Enhanced Criminal Record Certificate (ECRC) to any person who applies for such a certificate on an application countersigned by a ‘registered person’. 5.08 Registered persons are those entered on a register maintained by the Secretary of State containing the names of those who demonstrate a potential requirement of a need to ask ‘exempted questions’, ie  to obtain copies of an individual’s criminal record (including certain spent convictions). An exempted question is a question that is relevant to suitability for engagement in specified sensitive activities and is defined by the Police Act 1997, s 113A(6) as: ‘… a question which … so far as it relates to convictions, is a question to which section 4(2)(a) or (b) of the [ROA 1974] (effect of rehabilitation) have been excluded by an order of the Secretary of State under section 4(4) of that Act …’. 7 SI 1023/1975 (made pursuant to the ROA 1974, s 4(4)) (as amended by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198: see Appendices 12 and 13 respectively. 8 The obligation to self-disclose only arises if a person is asked: there is no obligation to unilaterally declare. 9 Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, Articles 3 and 4. 10 See Appendix A.

65

5.09  The Disclosure & Barring Service and Disclosure of Criminal Records

5.09 Registered persons are subject to the Home Office Revised Code of Practice for DBS Registered Persons, issued in November 2015.11

Criminal record checks: Basic, Standard and Enhanced Certificates 5.10 There are three types of DBS criminal record certificate available in England and Wales: a Criminal Conviction Certificate (CCC); a CRC; and an ECRC. 5.11 The DBS CCC is issued under the Police Act 1997, s  112 upon request to individuals and responsible organisations and will disclose all unspent convictions and conditional cautions only. 5.12 A ‘standard’ DBS check results in the DBS issuing a CRC under the Police Act 1997, s 113. These certificates are issued to individuals upon request from registered persons dealing with applications for positions that are exempted under the ROA 1974.12 A standard check will disclose all unspent convictions, cautions, warnings and reprimands and all spent convictions, cautions, warnings and reprimands that are held on the Police National Computer (PNC) and that are not subject to filtering. 5.13 An ‘enhanced’ DBS check involves the DBS issuing an ECRC under the Police Act 1997, s 115. These certificates are issued to individuals upon request from registered persons dealing with applications for positions referred to in the Police Act 1997, s 115, or listed in regulations made under the Police Act 1997.13 11 The Code is available online at https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/474742/Code_of_Practice_for_Disclosure_and_Barring_Service_ Nov_15.pdf. 12 The types of positions eligible for a standard DBS check are licensed doormen (a CRC being required to make a Security Industry Authority licence application), solicitors and barristers, accountants, veterinary surgeons, Financial Conduct Authority ‘approved persons’ roles, football stewards and traffic wardens. For a full list see the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, Sch 1, as amended, set out in Appendix D. 13 The regulations are the Police Act 1997 (Criminal Records) Regulations 2002, SI 2002/233, the Police Act 1997 (Criminal Records) (Amendment) Regulations 2006, SI 2006/748, and the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013, SI  2013/1200. The types of positions eligible for an enhanced DBS check are positions that involve working with children and vulnerable adults, teachers, social workers, NHS professionals, carers and taxi drivers.

66

Filtering 5.15

An enhanced check will disclose all unspent convictions, cautions, warnings and reprimands, along with all spent convictions, cautions, warnings and reprimands that are held on the PNC that are not subject to filtering. It will also disclose information held on DBS barred lists14 if requested by a registered person. It may also disclose any non-conviction information in the police’s possession that they deem to be relevant to the position applied for, including in certain cases information relating to third parties. 5.14 Before issuing an ECRC the DBS must ask any relevant chief officer to provide any information which the chief officer ‘reasonably believes’ to be relevant for the purposes of an exempted question asked for a prescribed purpose and that ‘ought’ to be included in the certificate.15 Information about arrests that resulted in No Further Action being taken, charges that resulted in not guilty verdicts and ‘soft-intelligence’ type information can therefore be disclosed on an enhanced check if it is deemed to be relevant by the police to the position applied for. Relevant information may also include information about third parties, for example if the applicant is living with a registered sex offender.

Filtering 5.15 The convictions and cautions eligible for disclosure by the DBS on standard and enhanced certificates are governed by the Police Act 1997, Part V. Following the Supreme Court judgment in R (on the application of T) v Secretary of State for the Home Department,16 some convictions will be subject to filtering and therefore not disclosed on either CRCs or ECRCs. The filtering scheme has been in effect since 29 May 2013, pursuant to the Rehabilitation of Offenders Act (Exceptions) Order 1975 (Amendment) (England and Wales) Order 201317 and the Police Act 1997 (Criminal Records Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013.18 The scheme requires disclosure only of the following convictions and cautions: •

any ‘current’ conviction or caution. Currency depends upon the period which has elapsed since the date of the conviction or caution and the age of the individual when convicted or cautioned.The following criteria will be applied:

14 See para 5.32 ff. 15 Police Act 1997, s 113B(4). 16 [2014] UKSC 35. 17 SI 2013/1198. 18 SI 2013/1200.

67

5.16  The Disclosure & Barring Service and Disclosure of Criminal Records

a conviction is a ‘current’ conviction if: –

the person was aged 18 or over on the date of the conviction and that date fell within the 11-year period ending with the day on which the certificate is issued, or

–

the person was aged under 18 on the date of conviction and that date fell within the period of five years and six months ending with the day on which the certificate is issued;

a caution is a ‘current’ caution if: –

the person was aged 18 or over on the date it was given and that date fell within the six-year period ending with the day on which the certificate is issued, or

–

the person was aged under 18 on the date it was given and that date fell within the two-year period ending with the day on which the certificate is issued;19

•

any spent conviction or caution in respect of certain specified offences (including a number of identified offences of all offences specified in the Criminal Justice Act 2003, Sch  15)20 (this rule is known as the ‘serious offence’ rule);

•

any spent conviction in respect of which a custodial sentence of service detention was imposed;21

•

any spent conviction where the person has more than one conviction22 (this rule is known as the ‘multiple offences’ rule).

5.16 In summary, therefore, the filtering scheme currently operates as follows in relation to disclosure of criminal convictions and cautions in the employment/ volunteering context:

19 NB: the disclosure of caution-type disposals received when an individual was under 18, ie reprimands, warnings and now youth cautions has been declared incompatible with the ECHR, Article  8 by the Supreme Court in the P, G & W case. This rule may, therefore, be subject to change 20 See the definition of ‘relevant matter’ in the Police Act 1997, s  113A(6)(a)(i) and (c) and the list of specified offences in the Police Act 1997, s  113A(6D) and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, Articles 2A(1), (2) and (3)(a) read together with article 2A(5). See Appendix G for a full list of offences that will never be filtered. 21 See the definition of ‘relevant matter’ in the Police Act 1997, s 113A(6)(a)(ii), of ‘conviction’ in s 113A(6E) (a), ‘caution’ in s 113A(6E)(b) and ‘custodial sentence and sentence of service detention’ in s 113A(6E)(e) and in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, Articles 2A(2), 2A(3)(b) and 2A(4). 22 See the definition of ‘relevant matter’ in the Police Act 1997, s  113A(6)(b) and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, Articles 2A(2) and 2A(3)(c). The multiple conviction rule has been declared incompatible with the ECHR, Article 8 by the Supreme Court in the P, G & W case, therefore this rule may be subject to change.

68

Challenging the accuracy of information disclosed in standard and enhanced CRC certificates 5.17

•

a caution received when under 18 will not be disclosed if two years have elapsed since the date of issue, but only if the offence does not appear on the list of specified offences which must always be disclosed;

•

a caution received when 18 or over will not be disclosed if six years have elapsed since the date of issue and if the offence does not appear on the list of specified offences which must always be disclosed;

•

a conviction received when under 18 will not be disclosed only if 5.5 years have elapsed since the date of conviction, it is the only conviction on record and it did not result in a custodial sentence. Even then, it will only be filtered if the offence does not appear on the list of specified offences which must always be disclosed. If there is more than one conviction on record, for any offence, then details of all convictions will be disclosed;

•

a conviction received when 18 or over will not be disclosed only if 11 years have elapsed since the date of conviction, it is the only conviction on record and it did not result in a custodial sentence. Even then, it will only be filtered if the offence does not appear on the list of specified offences which must always be disclosed. If there is more than one conviction on record, for any offence, then details of all convictions will be disclosed.

Challenging the accuracy of information disclosed in standard and enhanced CRC certificates 5.17 Section 117 of the Police Act 1997 (as amended by the Protection of Freedoms Act 2012, s 82) makes provision for the correction of errors on DBS certificates. Common errors include the type of offence being incorrectly recorded, or the disposal at court being incorrectly recorded. Practitioners should always be alive to the possibility of correcting such errors, because it could make the difference between a conviction or caution being disclosed or not. Section 117 states that: ‘117 Disputes about accuracy of certificates (1) Where an applicant for a certificate under any of sections 112 to 116 believes that the information contained in the certificate is inaccurate he may make an application … to DBS for a new certificate. (1A) Where any person other than the applicant believes that the information contained in a certificate under any of sections 112 to 116 is inaccurate, that person may make an application in writing to DBS for a decision as to whether or not the information is inaccurate.

69

5.18  The Disclosure & Barring Service and Disclosure of Criminal Records

(1B) Where a person believes that the wrong up-date information has been given under section 116A in relation to the person’s certificate, the person may make an application in writing to DBS for corrected up-date information. (2) DBS shall consider any application under this section; and where it is of the opinion that the information in the certificate is inaccurate, or that the wrong up-date information has been given, it shall issue a new certificate or (as the case may be) corrected up-date information’. 5.18 Any dispute as to the accuracy of the information disclosed in a DBS certificate must therefore be made in writing to the DBS. The DBS has published Form AF15 (a) for this purpose.23

Challenging the disclosure of information about convictions and cautions in standard and enhanced certificates 5.19 An individual who has convictions or cautions disclosed on a CRC or ECRC in accordance with the existing criteria of the filtering scheme currently has no way of challenging the disclosure.There may be particular grounds for bringing judicial review proceedings, depending on the nature of the complaint and the specific circumstances, but grounds will not arise merely by disclosure of unfiltered convictions.24 5.20 The Supreme Court has considered the filtering scheme in the case of P, G & W and found it to be lawful in most respects, save for the multiple conviction rule and the rules that allow for the disclosure of reprimands, warnings and youth cautions. These rules have been declared incompatible with ECHR, Article 8 but they will continue to operate as they do in the current legislation until and unless new legislation is passed to amend or abolish them (at the time of writing no such amending legislation has been put forward). Practitioners advising clients in this area should therefore take care to ensure that their knowledge of the law is up to date.

23 See Appendix N. 24 See Chapter 9.

70

Challenging the disclosure of information about convictions and cautions 5.21

5.21 CASE SPOTLIGHT In the matter of an application by Lorraine Gallagher for Judicial Review (Northern Ireland); R (on the application of P, G & W) v Secretary of State for the Home Department; R (on the application of P) v Secretary of State for the Home Department [2019] UKSC 3 This case related to the filtering mechanism introduced to remove certain convictions from being disclosed. The revised scheme (which had been introduced to respond to the declaration of incompatibility issued in R (on the application of T) v Secretary of State for the Home Department (see para 4.39)) established a filtering mechanism but that all convictions on an individual’s record would always be disclosed if they have more than one conviction (the ‘multiple convictions’ rule) or if a conviction falls into certain pre-defined categories of ‘serious offences’ (the ‘serious offence’ rule). The claimants challenged the legality of those two rules. The case had succeeded in the Court of Appeal ([2017] EWCA Civ 321), where the court decided that the claimants’ Article  8 rights had been violated by the operation of the revised statutory scheme. The Supreme Court upheld the declarations of incompatibility which the Court of Appeal made in respect of the multiple conviction rule and in relation to disclosures of reprimands given to young offenders. In particular: •

the court reiterated that Article  8 confers a qualified right of privacy, subject to important exceptions for measures which are: (i) ‘in accordance with the law’ (ie  the exception of legality); and (ii) ‘necessary in a democratic society in the interests of … public safety … for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights … of others’ (ie  the exception of necessity/proportionality) (see para  12 of the judgment);

•

in relation to the issue of legality, that requires the scheme to be foreseeable and accessible. The rules governing the disclosure of criminal records under both schemes were highly prescriptive, including clearly defined categories in relation to which disclosure was mandatory (ie  there was no over-broad discretion or risk of arbitrariness). The impact of the rules was wholly foreseeable. They therefore satisfied the principle of legality;

•

in relation to the issue of proportionality, the Court considered that the boundaries of the categories in the legislation had been drawn in an acceptable place and it was not possible for the court to say that they were disproportionate (see para 61 of the judgment), with two exceptions. The first exception concerned the multiple 71

5.22  The Disclosure & Barring Service and Disclosure of Criminal Records

conviction rule, which provides that where a person had more than one conviction of whatever nature, every conviction had to be disclosed in a CRC. The rule applied irrespective of the nature of the offences, their similarity, the number of occasions involved, or the intervals of time separating them. A  rule whose impact on individuals was as capricious as that could not be regarded as a necessary or proportionate way of disclosing to potential employers criminal records indicating a propensity to offend (see para  63 of the judgment). The second exception concerned warnings and reprimands administered to young offenders. Such warnings and reprimands had a wholly instructive purpose, and their use as an alternative to prosecution was designed to avoid any deleterious effect on the young offender’s subsequent life. Disclosure to a potential employer would be directly inconsistent with that purpose. The inclusion of warnings and reprimands administered to young offenders among offences which must be disclosed is a category error, and as such an error of principle (see para 64 of the judgment). The result was that, for all appellants except for W, the content of their ECRCs breached their Article 8 rights.

Challenging the disclosure of ‘non-conviction’ information on enhanced certificates 5.22 Although the disclosure of conviction and caution information on CRCs and ECRCs cannot currently be challenged if the disclosed convictions or cautions do not fall to be filtered through the operation of the filtering scheme, the disclosure of non-conviction/intelligence-type information disclosed on ECRCs can be challenged. 5.23 The Home Office’s Statutory Disclosure Guidance25 was published in August 2015 to assist the police when making decisions on the disclosure of non-conviction/ locally held information. It enunciates eight principles that must be followed when making these decisions: (1) there should be no presumption either in favour of or against providing a specific item or category of information; (2) information must only be provided if the chief officer reasonably believes it to be relevant for the prescribed purpose; 25 See Appendix H.

72

Challenging the disclosure of ‘non-conviction’ information on enhanced certificates 5.25

(3) information should only be provided if, in the chief officer’s opinion, it ought to be included in the certificate; (4) the chief officer should consider whether the applicant should be afforded the opportunity to make representations; (5) there should be a sufficient and clear audit trail to record the decisionmaking process and support quality control; (6) decisions should be made in a timely manner; (7) information for inclusion should be provided in a meaningful and consistent manner, with the reasons for disclosure clearly set out; (8) any delegation of the chief officer’s responsibilities should be appropriate and fully documented. 5.24 A Quality Assurance Framework (QAF)26 issued jointly by the DBS also sets out detailed guidance for the police to follow when deciding whether to disclose non-conviction information as part of an enhanced criminal records check. 5.25 The QAF states that the role of the police is to identify information that might be relevant to an employer‘s assessment of an applicant’s suitability and to determine whether it ought to be disclosed. In deciding whether or not to disclose such information, the police are required to consider the following things: •

the gravity of the material involved;

•

the reliability of the information on which it is based;

•

the period that has elapsed since the relevant events occurred;

•

the relevance of the material to the application in question.

A large body of case law has developed around the question of what information should be included on an ECRC, the leading cases being R (on the application of L) v Metropolitan Police Comr27 and R (on the application of R) v Chief Constable of Greater Manchester Police.28

26 See https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/ 295392/DBS_Applicant_s_introduction_to_QAF_March_2014.pdf. 27 [2009] UKSC 3. 28 [2018] UKSC 47.

73

5.26  The Disclosure & Barring Service and Disclosure of Criminal Records

5.26 CASE SPOTLIGHT R  (on the application of L) v Commissioner of Police of the Metropolis [2009] UKSC 3 This case related to the lawfulness of non-conviction data disclosed by the police in an ECRC. The appellant, L, applied for a job as a playground and lunchtime assistant at a school. The police disclosed to the school an ECRC which showed that she had no criminal record but that she had been accused of neglecting her child (who was then put on the child protection register) and not co-operating with social services. Shortly after the ECRC was disclosed, L  lost her job. She brought a judicial review of the decision to disclose the information, arguing also that the Police Act 1997, s 115(7) (which at that time provided the power for non-conviction information to be included in an ECRC if, in the chief police officer’s opinion, the information was relevant and ought to be disclosed) was incompatible with Article 8. That provision of the Police Act 1997 has now been repealed. Section 113B now provides for nonconviction information to be included in an ECRC, and s 117B provides for an application for a review of the inclusion of non-conviction information on an ECRC by the Independent Monitor. Despite these changes, the Supreme Court’s judgment in L  is still important for a number of reasons: •

L’s appeal was dismissed, and the decision to disclose the information was upheld because there was no doubt that the facts were true and the information was directly relevant to whether she could safely be entrusted with the job of supervising children. The court found that the ‘risk to children must, in her case, be held to outweigh the prejudicial effects that disclosure will give rise to’ (see para 48 of the judgment);

•

the Supreme Court held that disclosing information on an ECRC interfered with Article 8, so the relevant question will be whether that interference is justified (see para 29 of the judgment). It was justified in this case. As a matter of general principle, when a chief police officer is considering whether information is ‘relevant’ and ought to be disclosed, they should: –

consider whether it might be true;

–

consider the degree of connection between the information and the purpose for which the ECRC is sought;

–

conduct a proportionality assessment to determine whether to disclose. That involves weighing up the competing factors: the 74

Challenging the disclosure of ‘non-conviction’ information on enhanced certificates 5.27

gravity and reliability of the information, whether the applicant has had a chance to rebut the allegation, the period of time that has elapsed since the allegation, and the likely impact on the applicant of disclosing the information; •

there is no presumption in favour of disclosure, contrary to the guidance given in the case of R  (on the application of X) v Chief Constable of West Midlands Police [2005] 1  WLR  65. The correct approach is that neither the protection of vulnerable people nor the Article  8 rights of applicants for ECRCs has precedence over the other. In cases of doubt, there may be a requirement to consult with the person affected to take into account their view before making any disclosure.

5.27 CASE SPOTLIGHT R (on the application of AR) v Chief Constable of Greater Manchester Police [2018] UKSC 47 This case related to non-conviction information contained in an ECRC. AR had been acquitted of rape.The allegation had been made by a passenger driven by him in his taxi. He later applied for an ECRC in connection with an application for a job as a lecturer. Under the heading ‘other relevant information disclosed at the Chief Police Officer’s discretion’, the ECRC that was issued contained a description of the rape allegation and the fact that he had been acquitted. AR submitted an objection to Greater Manchester Police to the contents of the certificate.The disclosure was upheld, and AR’s appeal to the internal appeals body of Greater Manchester Police was rejected. The independent monitor appeals process had not at this time been established. AR made a second application for an ECRC, this time in connection with an application by AR for a licence to work as a private hire driver. The ECRC contained the same information as before, and AR’s attempts to have that information removed again failed. He therefore sought judicial review claiming that the disclosure breached his Article 8 rights. The Supreme Court dismissed the appeal on the basis that the inclusion of the information on the ECRC was not disproportionate. In particular: •

the court found that there was no obligation on the police to have consulted the appellant prior to the information being disclosed on the second ECRC.The Chief Constable had been aware of the appellant’s circumstances and had taken account of the potential impact of the 75

5.28  The Disclosure & Barring Service and Disclosure of Criminal Records

information on his employment prospects. There was no indication of any further information that the appellant would have wished to advance (see para 66 of the judgment); •

in relation to the issue of proportionality, the court found that it was neither necessary nor appropriate for those responsible for an ECRC to conduct a ‘detailed analysis’ of the evidence at the trial. The Chief Constable’s function under the Police Act 1997, s 113B was to identify and disclose relevant ‘information’, not to make a separate assessment of the evidence (see para  68 of the judgment). The first-instance judge had been entitled to accept the Chief Constable’s view that the information was ‘not lacking substance’ and that the allegations ‘might be true’ (see para 69 of the judgment) and it had to be borne in mind that the information about the charge and acquittal was a matter of public record and might have come to a potential employer’s knowledge from other sources, in which case a reasonable employer would have been expected to want to ask further questions and make further enquiries before proceeding with an offer of employment (see para 70 of the judgment). The court commented that the potential significance of the information was underlined by the seriousness of the alleged offence, its relevance to the position applied for and its comparatively recent occurrence (see para  70 of the judgment). The inclusion of the information in the ECRC was therefore not disproportionate;

•

the court added an interesting ‘postscript’, expressing disquiet about the lack of available guidance about what weight should be given to an acquittal when consideration was being given to its inclusion in an ECRC. The court had been shown reports which emphasised the importance of not excluding the convicted from consideration from employment but that said nothing about the acquitted, whom the court pointed out deserved greater protection from unfair stigmatisation. The court took the view that careful thought needed to be given to the value in practice of disclosing allegations which have been tested in court and led to acquittal (see paras 72–76 of the judgment).

5.28 Whatever information the police determine to be relevant, they must also consider whether they need to offer the individual affected the opportunity to make representations in order to satisfy themselves that their conclusions are not based on inaccurate/incomplete information, or on a false premise, or a state of affairs which is out of date.

76

Challenging the disclosure of ‘non-conviction’ information on enhanced certificates 5.31

5.29 The QAF sets out the circumstances in which the police should offer the individual who has applied for the check the opportunity to make representations about the disclosure of non-conviction information. It suggests that the presence of any of the following factors should require the police to consider whether representations might be appropriate: •

if it is unclear whether the position for which the applicant is applying really does require the disclosure of such information;

•

where the information may indicate a state of affairs that is out of date or no longer true;

•

if the applicant has never had a fair opportunity to answer the allegation;

•

if the applicant appears unaware of the information being considered for disclosure;

•

if the facts are not clear and are in dispute.

5.30 If the police decide that it is appropriate to offer the applicant the opportunity to make representations, they will contact them directly to inform them of this. Any representations made by the applicant are then added to the information held by the police and become a factor in their decision-making. They may decide not to disclose some, or all, of the information as a result of the individual’s representations, or they may disclose a modified form of the information. 5.31 If, having followed the procedure in the QAF, the police decide to disclose any non-conviction information as part of an enhanced check, then it is open to the applicant to challenge this decision under the Police Act 1997, s 117B29 by way of an application to the independent monitor: ‘117B Other disputes about section 113B(4) information (1) Subsection (2) applies if a person believes that information provided in accordance with section 113B(4) and included in a certificate under section 113B or 116: (a) is not relevant for the purpose described in the statement under section 113B(2) or (as the case may be) 116(2), or (b) ought not to be included in the certificate. 29 Inserted by the Protection of Freedoms Act 2012, s 82.

77

5.31  The Disclosure & Barring Service and Disclosure of Criminal Records

(2) The person may apply in writing to the independent monitor appointed under section 119B for a decision as to whether the information is information which falls within subsection (1)(a) or (b) above. (3) The independent monitor, on receiving such an application, must ask such chief officer of a police force as the independent monitor considers appropriate to review whether the information concerned is information which: (a) the chief officer reasonably believes to be relevant for the purpose described in the statement under section 113B(2) or (as the case may be) 116(2), and (b) in the chief officer’s opinion, ought to be included in the certificate. (4) In exercising functions under subsection (3), the chief officer concerned must have regard to any guidance for the time being published under section 113B(4A). (5) If, following a review under subsection (3), the independent monitor considers that any of the information concerned is information which falls within subsection (1)(a) or (b): (a) the independent monitor must inform the Secretary of State of that fact, and (b) on being so informed, the Secretary of State must issue a new certificate. (6) In issuing such a certificate, the Secretary of State must proceed as if the information which falls within subsection (1)(a) or (b) had not been provided under section 113B(4). (7) In deciding for the purposes of this section whether information is information which falls within subsection (1)(a) or (b), the independent monitor must have regard to any guidance for the time being published under section 113B(4A). (8) Subsections (10) and (11) of section 113B apply for the purposes of this section as they apply for the purposes of that section. Applications to the independent monitor are also made on Form AF15(a)30 and decisions of the independent monitor are capable of being judicially reviewed.

30 See Appendix N.

78

Barring decisions under the Safeguarding Vulnerable Groups Act 2006 5.33

Barring decisions under the Safeguarding Vulnerable Groups Act 2006 5.32 The Safeguarding Vulnerable Groups Act 2006 (SVGA  2006), Sch  3 creates two ‘barred lists’: one for those who are barred from engaging in ‘regulated activity’ with children (the ‘children’s barred list’); and one for those who are barred from engaging in regulated activity with vulnerable adults (the ‘adults’ barred list’). The lists are maintained by the DBS and the DBS also make decisions about whether an individual should be included in one or both barred lists. 5.33 The DBS can only consider a person for inclusion on a barred list where that person is, has been, or might in the future be working with vulnerable groups in ‘regulated activity’.31 Inclusion on one or both of the barred lists can either be automatic or discretionary: •

automatic inclusion on one or both of the barred lists comes as a result of receiving a caution or conviction for certain specified offences.32 These are known as the ‘autobar’ decisions and there is no right of review or appeal against them;

•

convictions or cautions for certain other offences33 will lead to consideration for inclusion on a barred list and an affected individual will be invited to make representations to the DBS before the decision on inclusion is made. These are known as ‘autobar with representations’ decisions;

•

discretionary inclusion can occur as a result of the referral of an individual to the DBS for barring from members of the public, employers and

31 The term ‘regulated activity’ as defined by the SVGA 2006, Sch 4 covers a range of specified activities that provide an opportunity for close contact with children or vulnerable adults and other activities in key settings such as schools and care homes.The scope of regulated activity is helpfully set out in government guidance: the DfE’s ‘Regulated activity in relation to children: scope’ and the Department of Health’s ‘Regulated Activity (adults)’. 32 As specified in the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009, SI 2009/37, reg 3 (children’s barred list autobar offences) and reg 5 (adult’s barred list autobar offences). See also the Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Miscellaneous Provisions) Regulations 2010, SI 2010/1146 and the Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Prescribed Criteria) Regulations 2012, SI 2012/2160. 33 See the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009, SI 2009/37, reg 4 (children’s barred list automatic inclusion with representations) and reg 6 (adults’ barred list automatic inclusion with representations) and the Education (Prohibition from Teaching or Working with Children) Regulations 2003, SI 2003/1184, as amended by the Education (Prohibition from Teaching or Working with Children (Amendment) Regulations 2007, SI 2007/195.

79

5.34  The Disclosure & Barring Service and Disclosure of Criminal Records

regulated activity providers.34 That may occur where, for example, an employer has conducted an investigation into an employee for concerning behaviour which does not give rise to a criminal charge, but which does give reason to believe that the employee may pose a risk to children or vulnerable adults, on the basis of which a referral to the DBS is made.The DBS then decide, on consideration of the evidence, whether to exercise their discretion in favour of including the individual on either barred list. The affected person will have the opportunity to make representations about their inclusion (on receipt of a ‘minded to bar’ letter from the DBS) before the final decision is taken. 5.34 An individual who is included in the children’s barred list must not engage in ‘regulated activity’ in relation to children. An individual who is included in the adults’ barred list must not engage in ‘regulated activity’ in relation to vulnerable adults. The SVGA 2006, s 7 makes it a criminal offence for an individual who is on one of the barred lists to engage in regulated activity. 5.35 It is possible, pursuant to the SVGA 2006, Sch 3, para 18A, for an individual to request a review of the decision to include them on a barred list and there are three bases upon which the DBS may review an individual’s inclusion on either of the barred lists.

Where the role does not meet the test for ‘regulated activity’ 5.36 Anyone included in a barred list prior to 10  September 2012 (when the definition of regulated activity in the SVGA  2006 was amended by the Protection of Freedoms Act 2012) may seek a review at any time if they consider that, within the revised definitions of regulated activity, they are not, have not been nor might in future be engaged in regulated activity relating to vulnerable groups, including children. Rather than a review of whether 34 Referrals are made when an individual has displayed specified behaviour (the term ‘relevant conduct’ is used in the SVGA 2006, Sch 3, paras 3 and 4 for children and Sch 3, paras 9 and 10 for adults) that leads to consideration for inclusion on one or both of the barred lists. This includes, for example, conduct which harms a child in the case of the children’s barred list, or conduct which harms a vulnerable adult in the case of the adults’ barred lists. Essentially, where evidence suggests that an individual may present a risk of harm to children or vulnerable adults, this will lead to consideration for inclusion on the appropriate list. There is a legal duty for employers, volunteer managers of people and personnel suppliers (employment agencies, employment businesses and some educational institutions) working in ‘regulated activity’ in England, Wales and Northern Ireland (known as ‘regulated activity providers’), to make a referral to the DBS when they have dismissed, removed or would have removed (had they not left), an employee or volunteer working in regulated activity, following harm to a child or vulnerable adult or where there is a risk of harm.

80

Barring decisions under the Safeguarding Vulnerable Groups Act 2006 5.38

an individual can or cannot undertake regulated activity, this is a review of whether the bar is necessary, given that the person is not and would not be carrying out regulated activity in the future.35 This power does not apply to those who were barred following an automatic barring offence without the right to make representations.

Where certain statutory conditions are met 5.37 The SVGA 2006, Sch 3, paras 18 and 18A provide that an individual may seek a review of their inclusion in a barred list at any time if they can provide the DBS with evidence of: •

information which is now available which was not at the time of their inclusion in the list;

•

any (material) change in circumstances affecting them since barring; or

•

an error by the DBS.

Review after a minimum barring period 5.38 Once an individual’s case has been concluded and the decision taken to include them on a barred list, they may ask the DBS to review their inclusion in either or both barred lists after a minimum period of time has elapsed. The minimum periods are based upon the person’s age when they were placed on the barred list: Under 18 years 18 to 24 years 25 years or over

1 year 5 years 10 years

Under this power a barred person is required to satisfy the DBS that their circumstances have changed since they were initially barred or since they last applied for a review. A review on this basis is subject to the DBS giving permission for a review.36

35 Should a person be removed from either list purely due to not meeting the test for regulated activity and in the future apply for a regulated activity role they may be considered for inclusion on either list again. 36 SVGA 2006, Sch 3, para 18(2).

81

5.39  The Disclosure & Barring Service and Disclosure of Criminal Records

Appeals under the Safeguarding Vulnerable Groups Act 2006 5.39 The SVGA 2006, s 4 (as amended) affords an individual a right of appeal to the Upper Tribunal (Administrative Appeals Chamber) for England and Wales against DBS barred list decisions as follows.

Appeal against a review decision where a person does not meet the test for regulated activity 5.40 Any person who has had their case reviewed because they were included in the children’s or adults’ barred list before 10 September 2012 and the DBS have maintained their barred status has a right of appeal against the DBS’ decision under the SVGA 2006 (as amended),37 unless they were included on the barred lists due to an ‘autobar’ offence.

Appeal against a review decision where certain statutory conditions are met 5.41 If a review has been carried out pursuant to the SVGA 2006, Sch 3, paras 18 and 18A, and the DBS still feel that it is appropriate that the person is barred from regulated activity relating to either children, vulnerable adults or both, the person has a right of appeal against the DBS decision under the SVGA 2006 as amended.38

Appeal against a review decision where a person requests a review after a minimum barring period 5.42 Where the DBS grants a person permission to review their case and following such review upholds its original decision to include a person in either the children’s or adults’ barred list, the barred person has a right of appeal against the DBS decision under the SVGA (as amended).39 If, however, the DBS does 37 Protection of Freedoms Act 2012 (Commencement No 3) Order 2012, Article 10. 38 SVGA 2006, s 4 and Sch 3, para 18A (as amended). 39 SVGA 2006, Sch 3, para 18 (as amended).

82

How to appeal barred list decisions 5.44

not grant permission for a review, there is no right of appeal against the refusal of permission.

Appeals against initial inclusion on either barred list 5.43 A person who is included in a barred list (other than as a result of an ‘autobar’ offence) may appeal to the Upper Tribunal against a decision to include them in either of the barred lists.40 An individual can therefore request leave to appeal to the Tribunal where they have been barred because they received a caution or conviction for a relevant offence (which had a right to make representations) or have been barred under the DBS discretionary powers.

How to appeal barred list decisions 5.44 Appeals against inclusion or against review decisions are heard by the Administrative Appeals Chamber of the Upper Tribunal in England and Wales.41 An appeal may only be made with the permission of the Tribunal and only on the grounds that the DBS has made a mistake: •

on any point of law; or

•

in any finding of fact which the DBS has made on which the decision was based.42

In general, appeals will be directed at errors of fact or law relating to the criteria the DBS considers when deciding to include a person on the barred lists. Those criteria are that: (i) the individual engaged in relevant conduct; (ii) the test for regulated activity is met (ie there is reason to believe that they are, or have been, or might in future be engaged in regulated activity relating to children); and (iii) on the balance of probabilities it is appropriate to include the individual on either barred list. Pursuant to the SVGA  2006, s  4(3), however, ‘whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact’ and therefore an individual cannot appeal against the DBS’s conclusion that it was ‘appropriate’ for them to be included on a list.

40 SVGA 2006, s 4 (as amended). 41 Or to the Care Tribunal in Northern Ireland. 42 SVGA 2006, s 4(2).

83

5.45  The Disclosure & Barring Service and Disclosure of Criminal Records

5.45 Nevertheless, it was held in the case of R (on the application of the Royal College of Nursing) v Secretary of State for the Home Department43 that ‘… if [the DBS] reached a decision that it was appropriate for an individual to be included in a barred list or appropriate to refuse to remove an individual from a barred list yet that conclusion was unreasonable or irrational that would constitute an error of law.’ It is therefore open to individuals placed on either barred list to argue that the decision to include them is either unreasonable or irrational. It was also held in the case of Independent Safeguarding Authority v SB (Royal College of Nursing intervening)44 that Article 8 may be engaged by barred list decisions and as such the Tribunal is able to assess the proportionality of those decisions.45 It may therefore be an arguable ground of appeal that the decision to include an individual on a list (or refuse to remove them following review) was unreasonable and/or disproportionate. 5.46 CASE SPOTLIGHT Independent Safeguarding Authority v SB (Royal College of Nursing intervening) [2012] EWCA Civ 977 This case considered important issues in relation to decisions to include individuals’ names on the Children’s Barred List and the Adults’ Barred List maintained by the DBS pursuant to the SVGA 2006, s 2. SB had a conviction for possessing indecent images of children, in respect of which a suspended sentence was imposed on him, along with an indefinite Sexual Offences Prevention Order which prohibited him from taking paid or voluntary employment with children under 16. The DBS (then known as the Independent Safeguarding Authority) added his name to both Barred Lists but, after receiving representations from him, removed him from the Adults’ Barred List.

43 [2010] EWHC 2761 (Admin). 44 [2012] EWCA Civ 977, sub nom B v ISA. 45 It was held in the case of Khakh v Independent Safeguarding Authority (now the Disclosure & Barring Service) [2013] EWCA Civ 1341 that Article 8 is not engaged in every case where a person is placed on a barred list. Whether there is a prima facie interference with Article 8 requiring justification will be fact sensitive. In this case, Article 8 was advanced on the basis that Mr K might in future want to work with young offenders and inclusion on the children’s barred list would prevent him from doing that. It was held that this was insufficient to engage Article 8 because it was merely a hypothetical expression of interest and too remote to constitute an interference with the right to work in a chosen profession: ‘…the vague possibility that he might at some indeterminate time in the future wish to take up an occupation in which he has not yet engaged at all carries no real force’ (see para 35).

84

How to appeal barred list decisions 5.48

SB challenged his inclusion on the Children’s Barred List. The Upper Tribunal found in his favour, but the Court of Appeal overturned that decision and reinstated the decision of the ISA, giving the following guidance as to the approach to be adopted by the Upper Tribunal when considering appeals of barring decisions: •

the Upper Tribunal is empowered to determine the proportionality and rationality of the ISA/DBS’s decision;

•

the Upper Tribunal cannot carry out a full merits reconsideration (see para 15 of the judgment) and it is therefore not appropriate for it to proceed to a de novo consideration of its own (see para 18 of the judgment);

•

the Upper Tribunal should give appropriate weight to the ISA/DBS’s decision, in recognition of its statutory remit and the expert evaluation it carries out (see para 17 of the judgment);

•

public confidence in the operation of the Barred List system is something which must be weighed in the balance when consideration is being given to the personal characteristics and interests of an appellant. Although it is not a trump card, it will always be a material consideration (see para 25 of the judgment).

5.47 As to the role of the Upper Tribunal on appeal, the Tribunal cannot ‘impose its own different decision where the decision taken by [DBS] is one based on properly found facts and properly understood law within the proper area of discretion accorded to [DBS] as an expert decision maker’,46 and it does not conduct a full merits review.47 If, however, the Tribunal finds that the DBS has made such a mistake of fact or law when making a barred list decision it will direct the DBS to either remove the person from the list(s) or remit the case for the DBS to make a fresh decision. When remitting the matter to the DBS, the Tribunal may set out any findings of fact it has made on which the DBS must base its new decision. The individual must be removed from the barred lists pending the DBS’s fresh decision. 5.48 The time-limit for lodging an application for permission to appeal with the Tribunal is three months from the date on which written notice of the DBS’s decision was sent to the appellant.48 If an individual wishes to appeal after the three-month period has expired, an application for an extension of time 46 K v ISA [2012] UKUT 424 (AAC). 47 CM v DBS [2015] UKUT 707 (AAC). 48 Upper Tribunal Rules, r 21(3)(a).

85

5.49  The Disclosure & Barring Service and Disclosure of Criminal Records

(explaining the reasons that the appeal was not made within time) should also be made. It is a matter for the Tribunal as to whether an extension of time, and permission to appeal, should be granted. Appeals to the Tribunal are made using Form UT10. Legal Aid funding for appeals against DBS barred list decisions is available pursuant to the Legal Aid, Sentencing & Punishment of Offenders Act 2012, Sch 1, para 4.

ACRO police certificates 5.49 The immigration authorities of certain countries will require evidence of an individual’s criminal history in the UK, or lack thereof, if that individual applies for a visa to either enter that country, work in that country, or immigrate to that country. The ACRO Criminal Records Office will issue a document known as a ‘police certificate’ for immigration and visa purposes upon application by any individual who has lived or worked in the UK and is asked to produce evidence of their UK criminal history to the immigration authorities of Australia, Belgium, Canada, the Cayman Islands, New Zealand, South Africa and the United States of America.49 5.50 A police certificate cannot be used for employment purposes in the UK in the same way as a DBS certificate.The DBS and ACRO use different criteria when assessing what information may be disclosed. In deciding what information may be disclosed, ACRO uses the Step-Down Model: Filtering of Offences for Certificates of Conviction V2.1, issued on 5 January 2018.50 ACRO police certificates will only disclose information about convictions and cautions on the PNC, ie offences that were disposed of with findings/admissions of guilt. They will not contain non-conviction information or intelligence. 5.51 The Step-Down Model stipulates that disclosure of previous convictions and cautions will depend upon the case disposal, the age of the individual and the date of the last offence on the PNC. The model divides offences into three categories – A, B and C, with A being the most serious and C being the least. The model also stipulates ‘clear periods’ in determining the time at which the offence history ‘steps down’. Should an individual re-offend within a clear

49 Other countries may request or accept a police certificate for visa purposes. It is the responsibility of the applicant to check with the relevant Embassy, High Commission or requesting authority if a police certificate will be acceptable. 50 See https://www.acro.police.uk/uploadedFiles/Content/ACRO/STEP%20DOWN%20MODEL%20 v2.1.pdf.

86

ACRO police certificates 5.52

period the time-clock will be re-set from the date of the new conviction and a further clear period will begin. 5.52 The various step-down periods are as follows: Age

Outcome

Sentence

Offence

Over 18

Custody

Imprisonment for six months or more

A

Step-down period Never

B

35 years

C A

30 years Never

B

30 years

C A

25 years Never

B

20 years

C A

15 years Never

B

15 years

C A

10 years 20 years

B

15 years

C A

12 years 15 years

B

12 years

C A

10 years 10 years

B

5 years

C A

5 years 10 years

B

5 years

C

5 years

Under 18

Over 18

Under 18

Over 18

Under 18

Over 18

Under 18

Custody

Custody

Custody

Imprisonment for six months or more Imprisonment for less than six months Imprisonment for less than six months

Non-custodial

Non-custodial

Caution

Youth caution / Reprimand / Warning

87

5.53  The Disclosure & Barring Service and Disclosure of Criminal Records

5.53 If the person applying for the ACRO certificate has matters recorded against them on the PNC that fall to be disclosed under the step-down model, those matters will be listed on the certificate.51 If there are matters on the PNC that are not disclosable under the step-down model, the certificate will state ‘No Live Trace’ on its face.52 If there are no matters at all recorded on the PNC, the certificate will state ‘No Trace’. 5.54 The contents of ACRO police certificates cannot be challenged as such because the information disclosed upon them does not involve the exercise of discretion on the part of ACRO. ACRO simply states on the certificate the information that appears on the individual’s PNC record that is disclosable under the stepdown model. If the issued certificate does not accurately reflect the information on the PNC, the certificate holder should notify ACRO of the error and request them to rectify it in a new certificate. If the information on the PNC is incorrect the individual should write to ACRO seeking amendment of the PNC pursuant to the DPA 2018, s 46.53

51 A certificate may also include foreign criminal history information where it has been disclosed to the UK via an information-sharing agreement with another country. Should foreign criminal history appear on the PNC record it is advisable to instruct a lawyer in the country where the history occurred as there might be means available to expunge the history from the person’s record in the source country. 52 The phrase ‘No Live Trace’ will alert the immigration authorities of the country requesting the certificate to the presence of matters recorded on the PNC.This may lead them to request voluntary disclosure from the applicant of the matters listed on the PNC. 53 The right to rectification in s 46 is discussed in Chapter 1.

88

6 Clare’s Law and Sarah’s Law: Domestic Violence and Child Sex Offender Disclosure Schemes Introduction 6.01 This chapter covers the Domestic Violence Disclosure Scheme (DVDS) and Child Sex Offender Disclosure Scheme (CSODS), both of which provide a route by which members of the public may obtain disclosure from the police about a third party’s history and antecedents. The chapter addresses the frameworks of these schemes and the procedures to be followed to obtain disclosure under them. 6.02 On average, two women in England and Wales are murdered by current or former partners every week, and one in four women experiences domestic violence in her lifetime.1 Many of the perpetrators are known to the police, either by way of intelligence (gained during the existing relationship or previous relationships) or because they have previous convictions for violence towards partners. 6.03 Following the murder of Clare Wood by her former partner in 2009, concerns were raised that women were being put at risk by not having any way of finding out whether new partners were known to have been violent to previous partners. After a campaign for the introduction of ‘Clare’s Law’, by which women could access that information, the DVDS was introduced across England and Wales in March 2014. The scheme gives individuals the right to seek disclosure of any information on police systems regarding another individual’s criminal history if they believe that they, or someone else, are at risk from that person.

1 Office for National Statistics, Compendium – Homicide (2016); and Office for National Statistics, Focus on Violent Crime and Sexual Offences 2014/2015 (2016).

89

6.04  Clare’s Law and Sarah’s Law

6.04 Similar concerns were raised about child sex offenders being able to have access to children without anyone being aware of their previous offending, following a number of high-profile offences committed by perpetrators who were known to the police. The CSODS, also known as ‘Sarah’s Law’,2 aims to provide parents, guardians and carers upon request with information held by the police about persons of concern to them, in order to enable them to safeguard their children. Anyone is entitled to make an application under the scheme, in relation to anyone who has some form of contact with a child. If, following an application, it is decided to make a disclosure, the information will not necessarily be disclosed to the person who initiated the request if that person is not best-placed to safeguard the child. Instead, disclosure will usually be made to the parent or guardian of a child who may be at risk, even if the request was made by a third party. 6.05 The DVDS and CSODS both involve the processing of personal data for law enforcement purposes (for the purposes of ‘the prevention of crime’: Data Protection Act 2018 (DPA 2018), s 31). The provisions and principles in the DPA 2018, Part 3 therefore apply to the way in which decisions about disclosures under the schemes will be made. So too does the European Convention on Human Rights (ECHR), Article  8, since a disclosure about an individual is an interference with their rights under Article 8, and will only be lawful if it is justified. The DPA 2018 and ECHR, Article 8 are both considered in more detail in Chapter 1. In this chapter we look at how the DVDS and CSODS operate in practice.

The Domestic Violence Disclosure Scheme 6.06 Although it is called ‘Clare’s Law’, the DVDS did not actually introduce any new statutory provisions. Instead, the scheme was created by the introduction of Home Office Guidance3 that formalised procedures arising from existing powers to provide individuals with information about their partner’s previous offending. The provision of information under the DVDS is made pursuant to the police’s well-established common law power to disclose information where it is necessary to prevent crime. The DVDS did not change that power, but it provided a clear and accessible system for members of the public to obtain information by engaging that power. 2 The scheme was named in memory of Sarah Payne, who was murdered in 2000 by a convicted sex offender who lived near her family home. 3 Home Office, Domestic Violence Disclosure Scheme (DVDS) Guidance.The most recent edition was published in December 2016 and can be accessed at https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/575361/DVDS_guidance_FINAL_v3.pdf.

90

The Domestic Violence Disclosure Scheme 6.10

6.07 As set out in the DVDS Guidance, the purpose of the scheme is to facilitate disclosure in order to protect a potential victim from harm. That is the guiding principle behind the scheme’s operation. It provides for the disclosure of information about an individual’s previous offending behaviour to anyone who might be at risk from them, or to any third party in a position to safeguard a person at risk.

The operation of the scheme 6.08 The DVDS recognises two procedures for disclosing information: •

the right to ask, which is triggered by a member of the public applying to the police for a disclosure. The member of the public does not need to be afraid that they might themselves be at risk; requests may be made, for example, by friends or family of someone who may be a potential victim, or from a third-party organisation or agency involved in the protection of people from domestic abuse;

•

the right to know, which is triggered by the police on their own initiative making a decision to disclose information to a potential victim, without that individual or anyone else having made a request for disclosure.

6.09 Under the DVDS, a disclosure may be made where a person is identified as having a conviction, caution, reprimand or final warning for violent or abusive offences, or if information is held about a person’s behaviour which reasonably leads the police and other safeguarding agencies to believe that they pose a risk of harm to an identified individual.The types of offences which might trigger a disclosure under the DVDS are contained in Annex B to the DVDS Guidance, and include offences under the Offences Against the Person Act 1861, the Sexual Offences Act 2003, and the Protection from Harassment Act 1997, among others.

The right to ask Making an application for a disclosure 6.10 In order for a request to fall within the DVDS system, it must ask for specific information about whether an individual is known to the police for previous 91

6.11  Clare’s Law and Sarah’s Law

violence or abusive behaviour. There is no particular format in which such a request must be made. The DVDS Guidance envisages requests being made in person at the police station, through contact with a partner agency, or informally in the course of ordinary policing duties.An individual or agency may also write to a police force requesting information (though in some cases potential victims may feel uncomfortable making a written request and the procedures apply equally to informal, oral requests). A request can also be initiated by calling the police non-emergency number, 101.

The initial contact 6.11 The first occasion that a request under the DVDS is made is known as the ‘initial contact’. The place, means and timing of an initial contact will be determined by the person making the request, and the police should accommodate any requirements necessary to ensure the safety of the person making the request. 6.12 The information to be obtained by the police during the initial contact is contained in Annex C of the DVDS Guidance. It includes the details of the applicant (name, date of birth, place of birth, address, ethnic origin, gender and preferred language), a safe method of contacting the applicant, details of the person about whom information is sought, and details of the person who might be at risk (if that is someone other than the applicant). The police will also ask for details of any children, and the relationship between the person about whom information is sought and the person thought to be at risk. They will also ask for any information that has given rise to the applicant’s concerns, and any risk factors (in particular, whether the subject of the request knows that the request is being made). No disclosure will be given during an initial contact.

Action following an initial contact 6.13 Within 24 hours of an initial contact, the police will run checks on the Police National Computer (PNC), Police National Database (PND), ViSOR (the Violent and Sex Offender Register)4 and local intelligence systems to obtain information relevant to the application. On the basis of this information and the information obtained during the initial contact, a risk assessment will be conducted and a decision made as to whether to progress the request under the DVDS.

4 This is only checked if the subject has a ViSOR marker on their PNC record.

92

The Domestic Violence Disclosure Scheme 6.17

6.14 The police will also consider whether the request amounts to a freedom of information request, a Disclosure & Barring Service (DBS) request, or a Subject Access Request and, if so, will respond subject to those procedures. If the information gathered through the initial contact alleges a crime, it will be referred for investigation in parallel to the procedure under the DVDS. If the police consider there is an immediate or imminent risk of harm, safeguarding action will be taken immediately. 6.15 On completion of the initial checks, if the decision is taken to progress the request pursuant to the DVDS, the application is referred to officers of the Public Protection Unit (or other suitably trained staff), who will arrange a faceto-face meeting with the applicant within 10 working days. The purpose of the face-to-face meeting is to ensure that the request for disclosure is genuine,5 to take further information for risk assessment purposes and to inform the eventual decision on whether and what information to disclose and, if necessary, to provide safety information to the applicant. 6.16 At the face-to-face meeting, the applicant will be required to prove their identity by way of official documentation (eg a passport, utility bill, or driving licence6) and, if they are a third party (ie not themselves at risk of harm), they will also be required to evidence their relationship with the person at risk of harm. That may, for example, be by way of showing text messages between them and the person at risk of harm. 6.17 Generally, an application will be treated confidentially. If, however, evidence of an offence is disclosed by the applicant, it may not be possible for their confidentiality to be maintained because police will be under a duty to investigate the offence and that will ordinarily involve informing the suspect. In addition, before making a disclosure the police must consider whether the subject of the disclosure should be notified before information relating to them is shared.Where doing so would cause a real risk to the applicant, however, that would tend strongly against the subject being informed.

5 Malicious requests may lead to prosecution of the applicant, for example for wasting police time. 6 It is not possible for an application to be made anonymously but, if the applicant insists on anonymity, checks will still be made about the subject and any concerns identified will be added to the intelligence picture about them, which will inform safeguarding decisions and measures taken to protect people at risk of harm from them.

93

6.18  Clare’s Law and Sarah’s Law

6.18 After the face-to-face meeting a full risk assessment will be conducted, which will take into account information held by the police and, where appropriate, by partner agencies such as social services or the Probation Service. As a result of these enquiries the matter will be classified as either a ‘concern’ or ‘no concern’.

Categorisation as ‘concern’ 6.19 A case will be categorised as a ‘concern’ if there is a risk of harm, taking into account whether: •

the subject has domestic violence convictions which may be disclosed under the terms of the Rehabilitation of Offenders Act 1974;7

•

the subject is a serial perpetrator of domestic violence;

•

there is intelligence of previous (or ongoing) violent and abusive offending, whether or not that led to convictions.

6.20 Where there are spent convictions, the police will consider whether disclosing them would be reasonable and proportionate, taking into account their age. They will also need to consider whether representations from the subject should be sought before any disclosure is made, taking into account the subject’s Article 8 rights8 and whether alerting the subject to the request would put the applicant at risk of harm (if it would, that will be a good reason not to seek representations).

Categorisation as ‘no concern’ 6.21 The police will classify a case as ‘no concern’ if there are no previous convictions for domestic violence and abuse-type offences, no intelligence indicating a risk of harm, or insufficient intelligence to register a concern. Even if the police categorise the case as ‘no concern’, it will still be referred to the local multi-agency forum for a decision on whether a disclosure should be made.

7 See Chapter 5. 8 See paras 1.05–1.07.

94

The Domestic Violence Disclosure Scheme 6.26

Referral to a multi-agency forum 6.22 Classification as a ‘concern’ or ‘no concern’ must usually be done within five days of an application. Every case will then be referred on to a local multiagency forum, usually a Multi-agency Risk Assessment Conference (MARAC), but in any event a group consisting of representatives from at least three relevant agencies. Within 20 days, that group should consider the referral and decide whether a disclosure should be made. 6.23 The MARAC or equivalent body will apply a three-stage disclosure test, considering whether: •

it is reasonable to conclude that disclosure is necessary to protect an individual from being the victim of a crime;

•

there is a pressing need for disclosure;

•

the interference with the rights of the subject (about whom information will be disclosed) is compatible with the ECHR.That involves an assessment of whether disclosure is necessary and proportionate, in particular balancing the right to privacy (protected by the ECHR, Article 8, incorporated into domestic law by the Human Rights Act 1998) against the risk of harm and the legitimate aim of the prevention of crime.

6.24 The MARAC will also consider the extent of any disclosure to be made, for example whether details of offences need to be disclosed or whether it is sufficient to disclose that the subject has previous convictions for relevant offences. The MARAC must be satisfied that any proposed disclosure is compliant with the principles in the DPA 2018.9 6.25 Taking account of all of these factors, the MARAC will decide whether to make a disclosure. According to the Office for National Statistics, in 2018 around 44% of ‘right to ask’ applications under the DVDS resulted in a disclosure being made.

Completing the process 6.26 If a decision is taken to make a disclosure, the disclosure will usually be made in person by the police with support or attendance by other relevant agencies 9 See Chapter 1.

95

6.27  Clare’s Law and Sarah’s Law

if necessary. The person receiving the disclosure will ordinarily be required to sign an undertaking as to the confidentiality of the disclosure. There will never be written correspondence with the applicant containing the specifics of the disclosure, because of the risks that could arise as a result. If the applicant is a third-party, they will also be provided with information to assist them in safeguarding the person at risk, for example sign-posting to local support services. 6.27 If the MARAC decide not to make a disclosure, the applicant will be told that decision in person or over the phone. They will be told that there is no information to disclose, but should be made aware that that does not necessarily mean there is no risk to them and that they should remain vigilant and report any future concerns. Whatever the outcome of the process, a final intelligence report will be created and stored on the PND10. 6.28 Normally, an application under the DVDS will be completed within 35 days, but there may be circumstances that mean that period is extended. If it appears to the police that the application will take longer than 35 days to process, the applicant will be kept informed.

The right to know Triggering the right to know 6.29 The ‘right to know’ entry stream will be triggered when the police receive indirect information impacting on the safety of an identified individual. That may be in the course of an investigation into a criminal offence or by a referral from a partner agency. The same checks of the police databases as are undertaken during a ‘right to ask’ enquiry will be made, in accordance with the same timescales. As a result of those checks the police will decide whether to progress to make a referral to the MARAC. The same process as occurs following a ‘right to ask’ application will then be undertaken. The Office for National Statistics reports that, in 2018, around 57% of right to know referrals resulted in a disclosure being made.

10 For more details, see Chapter 2.

96

The Domestic Violence Disclosure Scheme 6.32

Confidentiality 6.30 An application under the DVDS will be treated confidentially as far as possible. If, however, a decision is made to disclose information, it will be necessary to consider whether the subject of the request should have an opportunity to make representations in relation to the disclosure.11 If it is decided that the case is an appropriate one for representations to be sought from the subject, confidentiality may be overridden. Whether or not it is appropriate to seek representations from the subject must be assessed on a case-by-case basis, and if informing the subject of the disclosure request would put a potential victim at risk, it will generally not be appropriate to invite representations or alert the subject to the fact of the DVDS request. 6.31 The processing of data pursuant to the DVDS is a form of law enforcement processing and as such it is governed by and must comply with the principles in the DPA 2018, Part 3.12 Information disclosed under the DVDS is confidential and may only be used for the purpose of safeguarding a potential victim.Anyone to whom a disclosure is made will be asked to sign an undertaking agreeing that they will not further disclose the information.

Challenging a decision under the DVDS 6.32 A  decision to disclose information pursuant to the DVDS is a decision made by a public body, and as such is susceptible to judicial review if there are grounds for considering it to be unlawful. That may be the case if, for example, inaccurate information is disclosed, the test for disclosure is misapplied, or the procedures set out in the relevant guidance are not followed. Judicial review may be brought by anyone with standing, which would be likely to include an applicant or a person about whom a disclosure has been made. The procedures to follow for bringing judicial review proceedings are set out in Chapter 9.

11 Findings of the courts on the right to make representations in the context of the CSODS are likely to apply also in the context of the DVDS: see eg R (on the application of A) v Secretary of State for the Home Department [2016] EWCA Civ 597. 12 For more information on the DPA 2018, see Chapter 1.

97

6.33  Clare’s Law and Sarah’s Law

The Child Sex Offender Disclosure Scheme 6.33 The CSODS provides a similar system to the DVDS ‘right to ask’ stream, but applied in relation to anyone who has contact with children, about any previous history known to the police that indicates a cause for concern in relation to their behaviour towards children.The CSODS contains a presumption in favour of disclosure in cases where the subject of the request has convictions for child sexual offences, which is taken to mean any offence listed under the Criminal Justice Act 2003, Schedule 34. There may also be disclosure of convictions for other violent offences, or of intelligence relating to violence, if the information indicates that the subject of the request poses a risk of harm to children (although in such cases the presumption in favour of disclosure does not apply). 6.34 Although the CSDOS is, like the DVDS, derived from the police’s common law power to disclose information where it is necessary to prevent crime, there is an associated statutory duty in the Criminal Justice Act 2003, s 327A, which states: ‘327A Disclosure of information about convictions etc of child sex offenders to members of the public (1) The responsible authority13 for each area must, in the course of discharging its functions under arrangements established by it under section 325, consider whether to disclose information in its possession about the relevant previous convictions of any child sex offender managed by it to any particular member of the public. (2) In the case mentioned in subsection (3) there is a presumption that the responsible authority should disclose information in its possession about the relevant previous convictions of the offender to the particular member of the public. (3) The case is where the responsible authority for the area has reasonable cause to believe that: (a) a child sex offender managed by it poses a risk in that or any other area of causing serious harm to any particular child or children or to children of any particular description, and 13 The ‘responsible authority’ is defined by the Criminal Justice Act 2003, s 325: ‘the chief officer of police, the local probation board for that area or, if there is no local probation board for that area, a relevant provider of probation services and the Minister of the Crown exercising functions in relation to prisons, acting jointly’. Since it envisages the responsible authority ‘acting jointly’, this generally means it is MultiAgency Public Protection Arrangements teams to whom s 327A applies.

98

The Child Sex Offender Disclosure Scheme 6.37

(b) the disclosure of information about the relevant previous convictions of the offender to the particular member of the public is necessary for the purpose of protecting the particular child or children, or the children of that description, from serious harm caused by the offender. (4) The presumption under subsection (2) arises whether or not the person to whom the information is disclosed requests the disclosure. (5) Where the responsible authority makes a disclosure under this section: (a) it may disclose such information about the relevant previous convictions of the offender as it considers appropriate to disclose to the member of the public concerned, and (b) it may impose conditions for preventing the member of the public concerned from disclosing the information to any other person. (6) Any disclosure under this section must be made as soon as is reasonably practicable having regard to all the circumstances’.

Making an application for a disclosure 6.35 Requests may be made in person at a police station, to police officers in the course of their ordinary policing duties, or by phoning the police nonemergency line on 101. 6.36 Anyone is entitled to make an application about any person who has some form of contact with a child. If the police have information that is deemed to be disclosable, it will be disclosed to the person whom they consider to be best placed to safeguard the interests of the child and provide protection, which may or may not be the person who made the application for disclosure.14 6.37 During the initial contact, the police staff member will take contact details for the applicant. They should ascertain whether there may be difficulties with future contact, for example if an applicant is making a request about a person 14 If, for example, the child’s parent is the applicant but they are estranged from the child or other family members who provide care for the child, disclosure may be made to someone who is not a parent but who is in a better position than the parent to safeguard the child.

99

6.38  Clare’s Law and Sarah’s Law

they live with. The police staff member will establish when, where and how future contact may be made. 6.38 A  checklist of questions will be asked to establish whether there are any immediate or imminent risks of harm, either to the applicant or to particular children. Consent will be sought from the applicant to share personal details with other agencies, for example children’s social care. If there are concerns about the safety or welfare of a child, personal details may be shared with other agencies in any event, even if consent is refused.

Action following initial contact 6.39 All action taken under the CSODS must be taken with regard to the Government Guidance on Working Together to Safeguard Children. 6.40 Within 24 hours of the initial contact, checks will be completed to establish whether there is an immediate or imminent risk of harm and a risk assessment will be undertaken. If it is considered that there is a risk of harm to children before the minimum checks under the CSODS are completed, urgent safeguarding action will be taken. Otherwise, the minimum checks will be undertaken: a check of the PNC, PND,ViSOR and local force intelligence systems. 6.41 Within 10 days of the initial contact the applicant will attend a face-to-face meeting with the police. The purpose of that meeting is to ensure that the request is genuine15 and to obtain further details to inform the ongoing risk assessments. The police staff member at the meeting will usually be someone who has experience of managing sex offenders and/or who has experience of child protection enquiries, to ensure that they have the knowledge necessary to ask the right questions and obtain the relevant information for determining the request. 6.42 During the course of this meeting the applicant will be required to give their own details (name, date of birth, address) and must provide ID verifying those details. Acceptable ID includes a passport, driving licence, utility bill, bank statement or benefit book. If an applicant is unable to provide appropriate ID, 15 Malicious requests may lead to prosecution of the applicant, for example for wasting police time.

100

The Child Sex Offender Disclosure Scheme 6.46

their ID may be checked by reference to a partner agency with whom they have contact. If the applicant refuses to provide their personal details or wishes to remain anonymous, their request for disclosure will not be processed but any information provided in the course of it will be passed on to relevant agencies for the purposes of safeguarding children. 6.43 The applicant will also be asked to provide all the details they have about the subject (it will be understood that some applicants will not have many details about a person in relation to whom they have concerns) and the details of the relevant children, including their relationship to the applicant. If the applicant is making a generalised query about a subject without there being particular children with a relationship to the applicant and contact with the subject, the request will not be processed under CSODS but will be recorded as intelligence.

Action following the face-to-face meeting 6.44 Following the face-to-face meeting, an updated risk assessment will be carried out which will take into account any new information. The minimum checks may be revisited and further checks carried out, for example checks with international partners and with the Child Exploitation and Online Protection (CEOP) Command. This will inform an updated assessment of whether there is an immediate or imminent risk of harm. If there is, urgent action must be taken. If there is not, the process will proceed to a full risk assessment. A full risk assessment may involve liaison with other agencies such as children’s social care or the Probation Service. 6.45 As a result of the full risk assessment, a decision will be made as to whether the application should be categorised as raising a ‘concern’ or ‘no concern’. A decision on how to categorise an application should be made within 10 days of the face-to-face meeting.

Categorising an application 6.46 Applications will be classified as raising a ‘concern’ if: •

the subject has convictions for child sexual offences;

•

the subject has other convictions relevant to safeguarding children, for example convictions for adult sexual offences or violence; 101

6.47  Clare’s Law and Sarah’s Law

•

there is non-conviction intelligence about the subject that is relevant to safeguarding children (eg cases not proceeded with, reports of previous behaviour towards children that is worrying);

•

information given in the course of the application suggests the subject is currently displaying behaviour towards children that is of concern.

6.47 Applications will be categorised as ‘no concern’ where there are no relevant convictions and no other intelligence held by the police indicating concerns related to the subject that are relevant to safeguarding children.

The decision to disclose 6.48 No disclosure will be made if the application reveals no concerns (and the applicant will be told that there is no disclosure to make). Ordinarily, disclosure will be made if the application reveals concerns. The decision as to whether to disclose will be taken by a multi-agency forum, normally a Multi-Agency Public Protection Arrangements (MAPPA) team. If the decision of the MAPPA team is to make a disclosure (having balanced the interference with the private life of the subject of the disclosure against the need to protect vulnerable children), they will then have to consider: •

whether the subject ought to be given the opportunity to make representations on the disclosure, or whether the subject should be informed that a disclosure is going to be made. In some cases there will be an obligation to seek representations from the offender,16 though there are no specific criteria giving rise to an obligation and an assessment will need to be made on a case-by-case basis;

•

who to make the disclosure to, ie who is the most appropriate person to safeguard the relevant children;

•

the extent and content of the disclosure.

6.49 Before disclosing any information, the MAPPA team must be satisfied that: •

they have the power to disclose the information, normally because it is reasonable to conclude that the disclosure is necessary to protect the public from crime;

16 R (on the application of X) v Secretary of State for the Home Department [2012] EWHC 2954 (Admin), para 36; R (on the application of H) v A City Council [2011] EWCA Civ 403.

102

The Child Sex Offender Disclosure Scheme 6.53

•

there is a pressing need for the disclosure;17

•

disclosure is compatible with the rights of the subject under the ECHR. That will be the case if the disclosure is necessary for the prevention of crime or the safeguarding of vulnerable people, and is proportionate in pursuit of that aim. The rights of the individual about whom information is going to be disclosed must be weighed against the need to safeguard children, and the decision to disclose must strike a fair balance between those respective rights.18

6.50 The MAPPA team must also be satisfied that disclosure is compatible with the DPA 2018 and General Data Protection Regulation (GDPR). The processing of personal data relating to criminal convictions falls within the GDPR, Article 10 (for more detail on this, see Chapter 12). The processing of personal data in relation to disclosures under the CSODS is a form of law enforcement processing and as such also falls within, and must comply with the principles of, the DPA 2018, Part 3.The DPA 2018 is considered in more detail in Chapter 1. 6.51 If possible, applicants will be informed of the outcome of their application in person. If, however, there are no concerns, that information may, if appropriate, be conveyed to them in a letter instead. Only non-disclosure information may be sent in writing: at no time will written correspondence be sent to or left with the applicant that relates to the disclosure of information about a subject. 6.52 Where a disclosure is going to be made to someone other than the applicant, that disclosure should be given in person. It will not be given in written form, in order to protect against it being disclosed more widely or in a way that creates a risk to safety. 6.53 The CSODS Guidance envisages the possibility that it may be appropriate for the subject of the application to be involved in making the disclosure to the applicant or other appropriate individual. That would be done in the presence of a police officer subject to an assessment of risks involved, and only after it had been considered appropriate to inform the subject that a request relating to them had been made and that disclosure was intended. If informing the subject of an intended disclosure would create risks to others, the subject need not be informed. 17 R v Chief Constable of North Wales, ex p Thorpe [1999] QB 396, at 428. 18 R (on the application of H) v A City Council [2011] EWCA Civ 403, at para 37.

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6.54  Clare’s Law and Sarah’s Law

6.54 Disclosure should be made (or a decision that there is nothing to disclose communicated) within 35 days of the face-to-face meeting. That means there will be a maximum of 45 days between the initial contact and the communication of the final decision to the applicant and to any other person to whom disclosure for the purposes of safeguarding children will be made.

Confidentiality 6.55 An application under CSODS will be treated confidentially as far as possible. If a decision is made to disclose information, however, it will be necessary to consider whether the subject of the request should have an opportunity to provide representations on the disclosure and in such a case confidentiality may be overridden. Although the tenor of the Guidance suggests (without stating outright) that the presumption will be that the subject is not informed, the High Court has stated: ‘Whilst each case will turn on its own facts, it is difficult to foresee cases where it would be inappropriate to seek representations, unless there is an emergency or seeking the representations might itself put the child at risk’.19 6.56 However, the Court of Appeal in R (on the application of A) v Secretary of State for the Home Department20 did not consider that the Guidance ought to contain a presumption in favour of seeking representations from the subject of a request. Instead, they held that: ‘The test for the legality of a public scheme in relation to a complaint of a failure to provide proper opportunities for affected persons to make representations is, as a matter of domestic law, whether the scheme is “inherently unfair”. Here it is plain from the terms of the scheme that if a disclosure might be made the decision maker must consider whether to seek representations from the subject… Moreover, the decision maker is required to consider whether he has all the information necessary to make a decision concerning disclosure. That is very important… It seems to me that the arrangements made satisfy the legal standards which the court has to apply. There will be cases 19 R (on the application of X) v Secretary of State for the Home Department [2012] EWHC 2954 (Admin), para 41. 20 [2016] EWCA Civ 597.

104

The Child Sex Offender Disclosure Scheme 6.59

where representations should not be invited: cases of urgency or where the invitation itself would cause harm or where the decision maker is properly confident that he has all necessary information’.21 6.57 Information disclosed under CSODS is confidential and may only be used for the purpose of safeguarding children. Anyone to whom a disclosure is made will be asked to sign an undertaking agreeing that they will not disclose the information further.

Challenging a decision under the CSODS 6.58 Decisions taken by the police and partner agencies under CSODS are decisions of public bodies. As such, they are susceptible to judicial review if there are grounds for believing a decision has been taken unlawfully. Chapter 9 sets out the procedure for bringing judicial review proceedings. 6.59 CASE SPOTLIGHT R (on the application of A) v Secretary of State for the Home Department [2016] EWCA Civ 597 The appellant in this case challenged the legality of the CSDOS disclosure regime on the basis: (1) that it was not ‘in accordance with law’ for the purposes of the ECHR, Article  8, because there is no independent supervisory body to review the police’s decision on disclosure; (2) that the scheme was disproportionate because it did not contain a presumption in favour of seeking representations from an individual about whom a disclosure might be made; and (3) that the presumption in favour of disclosure was incompatible with Article 8 (the right to privacy). The parties in the case agreed that Article  8 is engaged by the CSDOS, and that disclosure of information relating to a person pursuant to CDSOS represents a potential interference with Article 8, such that the lawfulness of the scheme depends on whether that interference is justified. The Court of Appeal held that the scheme contains proper controls on the disclosure of information, meaning that it is compatible with Article 8. At para 25 of its judgment, the Court of Appeal noted that:

21 [2016] EWCA Civ 597, paras 30–31, per Laws LJ, internal references omitted.

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6.59  Clare’s Law and Sarah’s Law

‘Every application for disclosure is individually examined… disclosure will only be given if it is necessary and proportionate. There is no general requirement of an independent overseer though of course it is right to say that the judicial review jurisdiction provides a supervisory jurisdiction to ensure the legality of individual decisions… here it seems to me that [judicial review] takes its place at the apex of a set of arrangements that is full of detailed provisions for the achievement of balanced proportionate decisions…’. As to the right to make representations, the Court of Appeal observed that: ‘The test for the legality of a public scheme in relation to a complaint of a failure to provide proper opportunities for affected persons to make representations is, as a matter of domestic law, whether the scheme is “inherently unfair”. Here it is plain from the terms of the scheme that if a disclosure might be made the decision maker must consider whether to seek representations from the subject’. That feature of the scheme was in fact introduced after the same appellant brought an earlier challenge, and on this second challenge the Court of Appeal was satisfied that the arrangements now in place for considering whether representations ought to be sought satisfy the legal standards. Indeed, the Court observed that representations should not be invited in ‘cases of urgency or where the invitation itself would cause harm or where the decision maker is properly confident that he has all necessary information’. The Court also found there to be nothing objectionable in the presumption that disclosures would be made in limited specified circumstances. The challenge was therefore rejected on all three grounds.

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7 Applications under the Protection of Freedoms Act 2012 to Disregard Certain Historic Convictions for Consensual Homosexual Activity Introduction 7.01 This chapter addresses the Protection of Freedoms Act 2012 (PFA 2012), s 92, which provides for certain historic convictions to be disregarded on application by the person affected. First, the chapter deals with the provisions of the section. It then outlines the procedure to be followed, both by a person applying for a conviction to be disregarded, and by the Secretary of State on receipt of an application under s  92. It then explains the effect of a successful application under s 92, in terms of the status of the disregarded conviction, and the process for appealing a refusal by the Secretary of State to disregard. 7.02 In sum, s 92 of the PFA 2012 gives the Secretary of State for the Home Department the power to disregard historic convictions for consensual homosexual activity. The power is meant to remedy the injustices that flowed from the former criminalisation of consensual homosexual activity and is exercisable upon an application made by an individual with a relevant conviction or caution. The effect of a successful application is that ‘details of the conviction or caution would be removed from police records and the individual would be able legally to conceal their previous conviction in any circumstances. It would also no longer appear on a criminal record disclosure’.1 Thus, unlike a spent conviction, a disregarded conviction will be removed completely from a person’s criminal record. 1 Then-Home Secretary Theresa May in the House of Commons’ debate on the Bill, Hansard, HC Vol 524, col 213, 1 March 2011.

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7.03  Applications to Disregard Certain Historic Convictions

The application of the PFA 2012, s 92 7.03 Applications pursuant to the PFA  2012, s  92 can be made in relation to convictions or cautions for former offences under: •

the Sexual Offences Act 1956, s 12 (buggery);

•

the Sexual Offences Act 1956, s 13 (gross indecency between men); or

•

the Offences against the Person Act 1861, s  61 or the Criminal Law Amendment Act 1885, s 11 (corresponding earlier offences).

7.04 Applications can also be made in relation to any conviction or caution for an attempt, conspiracy or incitement to commit one of the above offences, and for aiding, abetting, counselling or procuring the commission of any of those offences (PFA 2012, s 101(5)). 7.05 A relevant conviction or caution will be disregarded if two statutory conditions are met. Condition A is that: ‘the Secretary of State decides that it appears that (a) the other person involved in the conduct constituting the offence consented to it and was aged 16 or over, and (b) any such conduct [constituting the offence] would now not be an offence under section 71 of the Sexual Offences Act 2003 (sexual activity in a public lavatory).’ 7.06 The effect of Condition A is that it requires the Secretary of State to be satisfied that the conduct on which the conviction is based is conduct which, under the current state of the law, is not illegal. If, for example, the conduct which gave rise to the conviction was non-consensual, it could be prosecuted today under the Sexual Offences Act 2003 as an offence of rape or sexual assault and would not satisfy Condition A. Such a conviction would not be disregarded. 7.07 Similarly, if the underlying activity constitutes an offence of sexual activity in a public lavatory under the Sexual Offences Act 2003, s  71, the conviction will not be disregarded because such activity remains criminal, regardless of whether those involved are of the same sex or not – and therefore without the discriminatory effect that other convictions for consensual homosexual activity had, and which the PFA 2012 seeks to remedy. Section 71 provides that: 108

Making an application under s 92 7.10

‘(1) A person commits an offence if: (a) he is in a lavatory to which the public or a section of the public has or is permitted to have access, whether on payment or otherwise, (b) he intentionally engages in an activity, and, (c) the activity is sexual. (2) For the purposes of this section, an activity is sexual if a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider it to be sexual’. For Condition A to be satisfied, therefore, the conviction or caution will need to have been for sexual activity that took place anywhere other than a public lavatory. 7.08 Condition B is a notice requirement. If the Secretary of State has decided that Condition A is satisfied, the conviction or caution becomes disregarded once the Secretary of State has given notice of the decision to the applicant under s 94(4)(b) and 14 days have elapsed since the notice was given. From that point on, the applicant will be treated for all purposes as if they were not convicted of or cautioned for the relevant offence.

Making an application under s 92 7.09 The justification for requiring affected individuals to make an application rather than introducing an automatic disregard of any convictions to which the PFA 2012, s 92 applies is for the reasons contained in Condition A: ie that it is possible to have been convicted under the relevant historic provisions for sexual activity which remains illegal (for example, non-consensual sexual activity or bestiality).The administrative cost to the Government of conducting its own review of each of the 50,000 or so convictions and cautions under the relevant provisions, in order to ascertain which convictions were eligible to be disregarded was deemed to be too onerous. The scheme therefore requires affected individuals to make their own applications to have previous convictions disregarded. 7.10 The PFA 2012, s 93 sets out how to make an application for a conviction or caution to be disregarded. It sets out the following requirements: 109

7.11  Applications to Disregard Certain Historic Convictions

•

an application must be made in writing;

•

it must state the name, address and date of birth of the applicant at the time of the application and at the time of the conviction or caution;

•

it must include, so far as is known to the applicant, the time when and the place where the conviction was made or the caution given, and for a conviction (again, so far as is known to the applicant) the case number;

•

the applicant must provide any such other information as the Secretary of State may require.

7.11 As well as the obligatory information, applications may include representations by the applicant or written evidence about matters relevant to the Secretary of State’s decision under Condition A. It would seem sensible for all applications to contain statements to the effect that the sexual activity was consensual, the other person or people involved were over 16, and that the activity does not fall within the Sexual Offences Act 2003, s 71 (as above). Any evidence supporting those statements should also be provided as part of the application. 7.12 Though the Government’s Explanatory Notes to the Bill state that ‘an applicant may supply additional information to evidence his conviction satisfies the first condition in clause 90 [which became section 92], namely that the relevant offence involved consensual gay sex with another person over the age of 16’, there is nothing in the wording of the Act to exclude submissions also being made by the applicant that the relevant activity would not fall within the Sexual Offences Act 2003, s  71. Given that the Secretary of State needs to decide pursuant to s 92(3)(b) whether the conduct would be an offence under s 71, it would seem sensible for the applicant to provide representations addressing that if possible. It is worth remembering, however, that s 93 attempts to set out a simple process for making an application. It will ordinarily be clear whether a conviction or caution falls to be disregarded under s  92 and lengthy legal submissions are unlikely to be necessary for a successful application.

The procedure to be followed by the Secretary of State 7.13 The PFA 2012, s 94 contains the procedure to be followed by the Secretary of State when determining an application to disregard a conviction or caution. The Secretary of State is required to consider any representations or evidence included in the application, which is why as much relevant information as possible should be provided in support of the application.The Secretary of State is also required to consider any available record of the investigation of the offence, 110

Effect of a conviction or caution being disregarded 7.18

and proceedings relating to it, that are considered to be relevant. The Secretary of State is not entitled to hold an oral hearing of the application (s  94(2)), but may appoint persons to advise on whether the decision in a particular case should be that Condition A is satisfied (s 100). An applicant should know, therefore, that the personal information contained in their application may be disclosed to advisers appointed by the Secretary of State (s 100(2)). 7.14 The Secretary of State is required to record any decision in writing and give notice of it to the applicant.

Effect of a conviction or caution being disregarded 7.15 If an application under the PFA 2012, s 92 is successful, the Secretary of State must direct that details of the conviction or caution contained in official records be deleted (s 95(1)). The details must be deleted as soon as reasonably practicable, but not until the 14-day notice period to the applicant has elapsed (s 95(2)–(3)). Once the details have been deleted, the applicant must be notified of the deletion (s 95(4)). 7.16 The definitions in s 95(5), however, reveal that the details being ‘deleted’ does not mean that a record of the caution or conviction is no longer kept. Instead, the records are considered ‘deleted’ if the details of the conviction or caution now record that it is disregarded and record the effect of it being disregarded. 7.17 By PFA 2012, s 96 the effect of a caution or conviction being disregarded is that the successful applicant is to be treated for all purposes in law as if they have not: •

committed the offence;

•

been charged with or prosecuted for the offence;

•

been convicted of the offence;

•

been sentenced for the offence, or

•

been cautioned for the offence.

7.18 In particular, the PFA 2012, s 96(2) provides that no evidence is to be admissible in any proceedings before a judicial authority in England and Wales to prove that the person has been subject to any of the above experiences. Further, the 111

7.19  Applications to Disregard Certain Historic Convictions

individual is not to be asked in such proceedings (and if asked, is not required to answer) any question relating to their past that cannot be answered without acknowledging or referring to the disregarded conviction or caution or any circumstances ancillary to it. 7.19 Perhaps most importantly for individuals with cautions or convictions falling within s 92, if they make a successful application for those cautions or convictions to be disregarded, whenever they are asked (outside of court proceedings) for information relating to previous convictions the question is to be treated as not relating to any disregarded conviction or caution, and the answer may be framed accordingly (s  96(3)). They are not required to disclose, nor are they subject to any liability for not disclosing, the disregarded conviction or caution or any circumstances ancillary to it. Ancillary circumstances include the offence and conduct which was the subject of the caution or conviction, any process or proceedings preliminary to the caution or conviction, any sentence imposed for a conviction and anything done in pursuance of or compliance with a sentence, any proceedings such as an appeal relating to a conviction, anything which happens after a caution is given for the purposes of bringing proceedings to an end, and any judicial review proceedings relating to the caution (s 98(2)– (3)). That means that the individual does not have to provide any of those details, including any positive answer to the question of whether they have been convicted or cautioned for a disregarded offence, when undergoing a criminal record check for any purpose.

Appealing a refusal to disregard 7.20 If the Secretary of State refuses an application under s 92 for a conviction or caution to be disregarded, the applicant has a right of appeal to the High Court pursuant to the PFA 2012, s 99.That right is subject to the High Court granting permission for an appeal against the decision (s 99(1)(b)). There is no specific form for commencing an appeal under s 99, and the authors are not aware of any appeals actually having been brought. A general appellant’s notice (form N161 – available on the gov.uk website) appears to be the most appropriate form to start an appeal, though certain of its sections do not apply (eg there is no court from which the appeal is brought, and in section 2 of the form an appellant will therefore have to specify ‘other’). It is recommended that, along with the grounds of appeal which must be appended to the N161, a further document explaining the circumstances of the appeal should also be appended. A skeleton argument addressing the reasons that permission to appeal should be granted can be appended to the N161 or provided within 14 days of the form being submitted. The appellant may also wish to consider applying for anonymity (by 112

Appealing a refusal to disregard 7.23

making that request in Part C of Section 10 of the N161) in order to protect against their being named in association with the historic conviction in public. The N161 should be lodged at the Administrative Court Office. 7.21 Since there is no particular threshold specified for the granting of permission to appeal, the general threshold in CPR 52.6 will apply: permission to appeal may only be given where the court considers that the appeal would have a real prospect of success, or there is some other compelling reason for the appeal to be heard. Applications for permission to appeal should address this threshold. 7.22 On appeal, the High Court is limited to making its decision only on the basis of the evidence that was before the Secretary of State when the original decision was made. It makes a fresh decision (rather than reviewing the Secretary of State’s decision), and it applies the same threshold, namely whether Condition A in s 92 (see para 7.05 ff) is satisfied. 7.23 If a High Court appeal is successful, the applicant should usually make an application to the court for inter partes costs. If the appeal is unsuccessful, there is no further right of appeal (PFA 2012, s 99(6)), and the applicant may be liable for the Secretary of State’s costs of responding to the appeal.

113

8 Applications to Expunge Police Cautions Introduction 8.01 This chapter addresses applications to expunge police cautions – ie applications to remove a caution from a person’s criminal record, where it was offered or administered unlawfully or where, exceptionally, its impact on the recipient’s private life is disproportionate. The chapter covers the basis for making an application, the procedure to be followed, and what to do if an application to expunge is refused. 8.02 Many people misunderstand the status of a police caution.They accept a caution thinking it is a ‘slap on the wrist’ which will have no future implications, but this is often not the case, and the presence of a caution on a person’s record can have serious implications for that person’s future life chances. 8.03 ‘Simple’ cautions are a non-statutory disposal which become ‘spent’ under the Rehabilitation of Offenders Act 19741 as soon as they are administered. This means that, ordinarily, the recipient of a simple caution will not be required to disclose it when asked about their criminal record, but there are some circumstances – for example, when applying for certain jobs or visas – in which the fact of a caution will be disclosed as part of a criminal record check2. When someone finds themselves in that situation, a simple caution they accepted years earlier may have real ramifications for their prospects of gaining certain employment or travelling to certain countries. The same is true of conditional cautions, administered under the Criminal Justice Act 2003, Part 3, which become spent three months after the caution was given, but which may nevertheless have to be disclosed in specified circumstances and are therefore capable of having a detrimental impact long after they have been given.

1 Rehabilitation of Offenders Act 1974, Sch 2, para 1. 2 See Chapter 5.

115

8.04  Applications to Expunge Police Cautions

8.04 In certain circumstances it is possible to apply to have the caution removed, or ‘expunged’, from a person’s record because of the way in which the caution was administered or because it has a disproportionate impact on the recipient’s life. 8.05 The power to expunge a caution is vested in the chief officer of the police force that issued the caution. The National Police Chiefs’ Council (NPCC) has an established application process for the deletion of criminal records, which includes applications for the expungement of cautions. All applications under the NPCC procedure must be submitted centrally to the ACRO  Criminal Records Office, the body tasked with coordinating all applications for deletion of records from the Police National Computer (PNC). ACRO will check the application to ensure that it is in the correct format and accompanied by the correct supporting documents. If the application is in order, ACRO will forward it to the police force that issued the caution, so that it can make the decision on expungement. Once the decision has been made, the police force will communicate it to ACRO who will then pass it on to the applicant or the applicant’s legal representative. Applications must be on the prescribed form3 and should ideally be accompanied by a detailed letter of representations4 and supporting evidence.5

Is there a basis for the caution to be expunged? 8.06 Certain preconditions have to be met before the police can lawfully make an offer to a suspect to dispose of the case by way of a caution.Those preconditions are listed in the Ministry of Justice guidance document, ‘Simple Cautions for Adult Offenders’6 (which applies to all cases after 13  April 2015). If the conditions have not been satisfied but a caution has nevertheless been given, there may be grounds for making a complaint against the police force and/ or making a specific application for the caution to be expunged on the basis that it is unlawful, because a breach of relevant guidance renders a decision unlawful.7 For conditional cautions, the relevant guidance is the Revised Code of Practice for Conditional Cautions (issued under the Criminal Justice Act

3 Available from the ACRO website, https://www.acro.police.uk/Early_Deletion_of_Biometric_ Information.aspx. 4 See Appendix K and Appendix O for the relevant form and a sample letter respectively. 5 For example, anything obtained following a Subject Access Request: see Chapter 3. 6 Available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/ 416068/cautions-guidance-2015.pdf In force from April 2015; see paras 9–13. 7 R (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12, at para 26.

116

Is there a basis for the caution to be expunged? 8.08

2003, s  25)8 – but a conditional caution must also have complied with the statutory requirements in the Criminal Justice Act 2003, ss  22–23. If it does not, it will be unlawful: for an example of a case in which the High Court considered a conditional caution to be unlawful for failure to comply with the Criminal Justice Act 2003, s 23 see R (on the application of Owusu-Yianoma) v Chief Constable of Leicestershire.9

The necessary preconditions for a lawful simple caution10 8.07 In summary, the preconditions are that: •

the suspect must make a ‘clear and reliable’ admission to the offence;

•

there must be sufficient evidence to provide a realistic prospect of conviction;

•

it must be in the public interest for the case to be disposed of by way of a caution rather than a prosecution;

•

the suspect must agree to accept the caution.

8.08 In order for a simple caution to be given, the suspect must make a ‘clear and reliable’ admission to the offence. If they admit they carried out criminal conduct, but at the same time raise a defence, that does not constitute an admission and a caution should not be offered. If an admission is equivocal, or obtained in circumstances that render it unreliable, or if it is made but then recanted from, it will not be appropriate for a caution to be offered. Although the admission does not need to be made in the context of a formal interview, the method for obtaining and recording the admission must be compliant with the Police and Criminal Evidence Act 1984 (PACE) and its Codes of Practice. That means that the admission must either be made in response to questions asked in a formal interview conducted and recorded in accordance with the PACE Codes or it may be an unsolicited admission made without inducement or invitation to comment at any time outside the context of an interview of which a written record is made and the offender invited to sign, or it is made in a formal written statement under caution. Anything less than an unequivocal admission of guilt made in one of those circumstances will be an insufficient basis for a caution to be offered. 8 Available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/228971/9789999098144.pdf. 9 [2017] EWHC 576 (Admin). 10 To avoid repetition, and because they are more common, the remainder of this chapter focuses on the guidance and conditions relevant to simple cautions. Similar considerations apply in relation to conditional cautions, by reference to the Code of Practice and provisions of the Criminal Justice Act 2003.

117

8.09  Applications to Expunge Police Cautions

8.09 Second, a simple caution may only be given if the decision-maker is satisfied that there is sufficient evidence to provide a realistic prospect of conviction if the offender were to be prosecuted. At the same time, the decision-maker must not offer a caution if the public interest requires a prosecution. A caution should only be given where it is in the public interest to do so. While that may mean that in some cases a caution should not be offered because it is in the public interest for there to be a prosecution, in other cases a caution should not be offered because, despite an admission, no further action should be taken. That may arise when factors such as ill-health, including mental illness, and the overall context of the offending, mean it is not in the public interest for a caution to be given.11 Determining the appropriate response to the alleged offending will normally involve the police considering the Gravity Factors Matrix,12 a guidance document that categorises offending and specifies the action that would normally be expected in relation to each category. A deviation from the response stipulated by the Gravity Factors Matrix may provide a basis on which to challenge any resulting caution. 8.10 Crucially, a simple caution is a consensual disposal and so the suspect must agree to accept it. Even if they admit the offence, they always retain the right to refuse a caution. Refusing a caution will often mean that the suspect is charged and prosecuted for the offence but it is possible that a decision is instead taken not to prosecute. In Caetano v Commissioner of Police of the Metropolis,13 albeit under now-superseded but broadly equivalent guidance, the court found that a prosecution does not necessarily or inevitably follow if a caution is refused, and in the circumstances of that case the only reasonable outcome would have been for no further action to have been taken. 8.11 The police officer administering a simple caution must explain to the recipient the implications of accepting a caution, and the officer administering the caution must be satisfied that the suspect understands and gives informed consent. The need for the spelling out of the consequences of a caution was explained by the Divisional Court in R (on the application of Stratton) v Chief Constable of Thames Valley Police.14 In particular: •

unlike a conviction (either by plea before a court or after a trial), a simple caution is not imposed by a court or in circumstances where the seriousness of the consequences would be apparent. When a caution is administered,

11 Caetano v Commissioner of Police of the Metropolis [2013] EWHC 375 (Admin), at para 44. 12 Available at https://docmanager.pnld.co.uk/content/Gravity%20Matrix%20-%20Adults%20(Final%20 Master%20V1%20Feb%202019).pdf. 13 [2013] EWHC 375 (Admin), at para 40. 14 [2013] EWHC 1561 (Admin), at para 49.

118

Is there a basis for the caution to be expunged? 8.15

there is no apparent immediate consequence to the individual who, unless the consequences are spelt out, might consider he had been dealt with lightly; •

unlike a conviction, the consent of the individual has to be obtained. Such consent has to be informed consent with a full understanding of the consequences. There is obvious risk evident from the circulars [the guidance then in force] that the suspect might think that a caution was the easy option.

8.12 The current guidance, at paras 65–76, deals with the steps to be taken by police officers to ensure that the consequences are explained and understood. 8.13 As well as the criteria above which must be met before a simple caution is administered, the Ministry of Justice Guidance sets out other factors to be considered before a caution is offered: •

the seriousness of the offence, including any aggravating or mitigating factors. The police should ordinarily have considered the Gravity Factors Matrix when deciding where the offence falls and what the appropriate response to it is;

•

the offender’s antecedents;

•

the statutory restrictions in the Criminal Justice and Courts Act 2015, s 17, which limit the use of simple cautions for indictable-only offences, specified either-way offences, and repeat offences;

•

the views of any victim, and the impact of the offence on any victim.

8.14 If the relevant preconditions have not been satisfied or there is some other perceived irregularity by way of any deviation from the Ministry of Justice Guidance in the way in which the caution has been offered or administered, there may be a basis to apply for the caution to be expunged.

European Convention on Human Rights, Article 8 8.15 The presence of a police caution on a person’s criminal record engages the European Convention on Human Rights (ECHR), Article  8 (the right to a 119

8.16  Applications to Expunge Police Cautions

private and family life).15 In some, admittedly rare, cases it might be possible to argue that the continued presence of the caution on a person’s record is a disproportionate interference with their right to privacy under Article 8, even though no fault can be found with the way the caution was administered. Article 8 can most effectively be deployed in cases where the caution is very old, is the only matter that appears on a person’s record and is for a relatively minor offence. It might then be argued that the effect of the continued presence of the caution on the person’s record is disproportionate (if, for example, it is negatively impacting on their ability to obtain employment) given the amount of time that has elapsed since it was administered and the fact that the subject has lived a blameless life since then. Alternatively, if a caution can be shown to have been administered unlawfully, its retention is likely to be a breach of Article  8 because it is not ‘in accordance with law’, nor is it ‘necessary and proportionate’. 8.16 CASE SPOTLIGHT MM v United Kingdom (App No 24029/07) In this case, the European Court of Human Rights (ECtHR) considered the application of the ECHR, Article 8 to the UK’s system of retaining and disclosing criminal records. At the time of this case, the filtering regime was not yet in place (see Chapter 5), and the ECtHR judgment played a significant role in precipitating changes to the system as it then stood. MM had a caution for child abduction, relating to having taken her grandson away from his parents for two days, without the parents’ consent. That was disclosed in the course of an application for a job as a health care support worker, the result of which was that the offer of employment was withdrawn. MM requested that the police delete the caution from their records, but the request was refused. The ECtHR found that: •

Article  8 applies to the retention and disclosure of a caution. Even public information can fall within the scope of a person’s private life where it is systematically collected and stored in files held by the authorities, particularly where the information concerns a person’s distant past. As the conviction or caution itself recedes into the past, it becomes a part of the person’s private life, which must be respected;

•

disclosing the caution was an interference with Article  8, and the interference was not justified because the system for retention and disclosure of criminal records did not contain sufficient safeguards

15 MM v UK (App No 24029/07), R (on the application of T) v Chief Constable of Greater Manchester Police [2014] UKSC 35, para 21.

120

Making an application to expunge 8.18

relating to the circumstances in which data can be collected, the duration of its storage, the use to which it can be put and the circumstances in which it may be destroyed (see para  199 of the judgment). In particular, the ECtHR highlighted the absence of a clear legislative framework for the collection and storage of data, the absence of any independent review mechanism of a decision to disclose, and the very limited filtering arrangements then in place, which took no account of the time since the offence was committed or the offence’s relevance to the employment sought; •

the court found that the cumulative effect of those shortcomings was that it could not be satisfied that there were sufficient safeguards in the system to ensure that data relating to the applicant’s private life would not be disclosed in violation of her Article 8 rights. The retention and disclosure of the applicant’s caution data accordingly could not be regarded as being in accordance with the law, and had therefore been in violation of Article 8.

Making an application to expunge 8.17 In order to ascertain whether there are any viable grounds for an application to expunge a caution, it may be necessary first to make a Subject Access Request (SAR) to the police for disclosure of all records relating to the administration of the caution.16 Alternatively, the recipient of the caution may already have in their possession the paperwork necessary to assess whether the Guidance was complied with. Ideally, a copy of the interview disc/tape, custody record, crime report and any evidential statements should be obtained, as well as a full proof of evidence from the client. The proof should cover the client’s account of the alleged offence and what subsequently happened at the police station, focusing on their understanding of the allegation, the advice that they received if they were legally represented,17 and their understanding at the time they received the caution of the implications of accepting it. 8.18 Cases that are over six years old can prove difficult to litigate because detailed information about the case will start to be deleted from the police’s systems after this amount of time has elapsed, potentially leaving little by way of objective evidence that can be relied upon, and leaving the case solely reliant on the 16 See Chapter 3. 17 If the client was legally represented at the police station then thought should be given to obtaining the police station adviser’s notes.

121

8.19  Applications to Expunge Police Cautions

client’s recollection of events. Such a paucity of evidence may prove to be a barrier to judicial review litigation given that it is the client who will have to prove the case. 8.19 In cases that pre-date the current MOJ Guidance, the caution should be assessed by reference to the guidance in force at the time the caution was given. Home Office Circular 016/200818 immediately preceded the current MOJ Guidance. The requirements of the Circular were similar to the MOJ Guidance, and in both cases the following questions should be asked when considering whether to make an application to expunge: •

Was there a clear and reliable admission of guilt?

•

Was there evidence giving rise to a realistic prospect of conviction?

•

Did the offender accept the caution?

•

Were the consequences of a caution explained to the offender?

•

Did the offender understand the consequences of the caution or was it reasonable for the police officer to conclude that the offender understood?

•

Was it in the public interest for a caution to be given?

•

Is it now in the public interest for the caution to be expunged?

8.20 If, having considered these questions, there appears to be a basis to apply for the caution to be expunged, an application should be submitted to ACRO using the NPCC procedure contained in the NPCC Record Deletion Process Guidance. 8.21 The format of such an application will be the standard NPCC Record Deletion Process form, ideally accompanied by a detailed letter of representations setting out the basis on which the caution ought to be expunged.19 Submissions should be made addressing whichever of the questions identified above gives rise to the application to expunge. 8.22 Annex A  of the NPCC  Guidance sets out the grounds upon which an application can be made. In so far as is relevant to cautions, an application for deletion can be made on the basis of it being an ‘incorrect disposal’ (for cases 18 Available at https://webarchive.nationalarchives.gov.uk/20130309160646/http://www.homeoffice.gov. uk/about-us/corporate-publications-strategy/home-office-circulars/circulars-2008/016-2008/. 19 See Appendix O for a precedent.

122

Challenging a refusal to expunge 8.26

where the administration of the caution is procedurally flawed), or because of the ‘wider public interest’ (for cases that have an Article 8 element) and these are the boxes that should be ticked on the form. 8.23 The detailed letter requesting that a caution be expunged should specify a date by which a response is required from the Chief Constable. Ordinary periods within which to expect a response are 21–28 days.20 8.24 If the Chief Constable agrees to expunge the caution, they should also ensure that it is deleted from the PNC. If the Chief Constable does not agree to expunge the caution, that decision is susceptible to judicial review (see Chapter 9).

Challenging a refusal to expunge 8.25 As to the High Court’s power to quash a caution, in Lee v Chief Constable of Essex Police21 the court held that: ‘15.The law in my view can be shortly stated.The court has jurisdiction to quash a caution but only in an exceptional case where a caution is administered in clear breach of the guidelines set out in the relevant Home Office Circular [now, the MOJ  Guidance]. However police officers responsible for applying the circular must enjoy a wide margin of appreciation of the nature of the case and whether the preconditions for a caution are satisfied. Even if there has been a clear breach of the guidelines, the court retains a discretion not to interfere’. 8.26 That summary draws on the observations of Schiemann LJ in R v Metropolitan Police Commissioner, ex p Thompson22 that police officers ‘…must enjoy a wide margin of appreciation as to the nature of the case and whether the preconditions for a caution are satisfied; and that it will be a rare case where a person who has been cautioned will succeed in showing that the decision was fatally flawed…’

20 The actual amount of time the police take to provide a response varies considerably from force to force. At one end of the spectrum, the British Transport Police are able to respond substantively within a few weeks; at the other end the Metropolitan Police can take up to 12 months to respond. 21 [2012] EWHC 283 (Admin). 22 [1997] 1 WLR 1519.

123

8.27  Applications to Expunge Police Cautions

8.27 If, however, the circumstances of a particular case do demonstrate that the decision to offer a caution was fatally flawed, but the police force refuses to expunge it, judicial review may be an appropriate course of action to pursue. In our experience, there are more successful judicial reviews of cautions than there are judgments, because police forces sometimes concede cases if permission for judicial review is granted, but before there has been any substantive hearing, presumably on consideration of whether it is in the public interest to defend the proceedings further. The procedure that must be followed to bring judicial review is set out in Chapter 9.

124

9

Judicial Review

Introduction 9.01 This chapter explains how to apply for judicial review of the decisions of public authorities. Decisions made by public bodies are generally susceptible to judicial review, meaning that the High Court has jurisdiction to review whether the decision is lawful. If the High Court finds that a decision is unlawful, it may quash that decision, or declare that it is unlawful, and it may require the public authority to re-take the decision. 9.02 In the context of the issues addressed in this book, the decisions most likely to lead to judicial review applications are refusals to expunge cautions, or decisions to disclose information (for example, pursuant to the Domestic Violence Disclosure Scheme,1 or on Enhanced Criminal Record Certificates (ECRCs)2). This chapter focuses on the general principles and procedure that applies to judicial review claims in relation to any decision made by a public body.

Bringing a judicial review claim 9.03 Part 54 of the Civil Procedure Rules sets out the procedure for judicial review claims, and should be the first port of call for anyone considering bringing judicial review proceedings. It is important to remember that judicial review is a remedy of last resort, and the court will refuse permission for a judicial review claim if there exist adequate alternative remedies for obtaining the relief sought. Before embarking on judicial review proceedings, therefore, other available avenues should be explored. For example, in respect of a caution, judicial review should not be commenced until a request has been made to the Chief Constable to expunge the caution (see Chapter 8)3 or, in respect of disclosure on an ECRC, judicial review should not be pursued until an appeal to the 1 See Chapter 6. 2 See Chapter 5. 3 Most police forces have an internal review procedure that allows an applicant to request an internal review of an initial decision refusing to expunge a caution. This course should be pursued before seeking judicial review.

125

9.04  Judicial Review

independent monitor has been brought and dismissed (see Chapter 5). If there are no alternative ways of obtaining the desired remedy, or if the alternative routes have been tried and have failed, it may be appropriate at that stage to issue a judicial review claim. 9.04 One effect of pursuing alternative appeal routes prior to judicial review is that, generally, a judicial review challenge will be directed at the refused appeal, application to expunge or equivalent decision: ie the Chief Constable’s refusal to expunge the caution is subject to judicial review, rather than the underlying caution itself.4 That is a formal distinction which does not usually have a material impact on the grounds on which the claim is brought or the remedy that is sought (ie quashing of the caution or of the decision to include certain information on an ECRC). It may be material, however, for the purposes of the time limit for bringing judicial review, since the limitation period will commence from the date of the decision that is formally under challenge. 9.05 The time limit for bringing a judicial review claim is contained in CPR 54.5, which provides that the claim form must be filed promptly, and in any event no later than three months after the grounds to make the claim first arose. 9.06 It should be noted that the construction of this rule places a duty on a claimant to act promptly, rather than bestowing a right to bring a claim at any point within three months, and even claims brought within three months may fall foul of the promptness requirement. However, given that there is unlikely to be any prejudice to defendants in the context of the issues that arise in this book, as long as the claim is brought within the outer limit of three months and steps to bring proceedings are taken diligently, that is likely to satisfy CPR 54.5. 9.07 In some cases, it may be possible to characterise the challenge as relating to a ‘continuing breach’, in relation to which the limitation period continues to run. That may be the case, for example, in a challenge to an unlawful caution which has remained on a person’s criminal record and at risk of being disclosed in certain circumstances. That may amount to a continuing breach because Such a retention of data about a caution is at least arguably an interference with rights under Article  8 of the European Convention on Human Rights (ECHR), and must be justified.5 Where there are reasons for believing that the 4 Likewise, it would tend to be the decision of the independent monitor that is the subject of judicial review, rather than the original police decision as to what would be included in an ECRC. 5 R (on the application of T) v Chief Constable of Greater Manchester Police [2014] UKSC 35, at para 21.

126

The Pre-action Protocol 9.10

underlying caution was unlawfully given, for example, its retention is unlikely to be justified and the individual would be suffering an ongoing breach of their Article 8 rights. The three-month deadline will have less relevance in a case of that sort, though a claimant should nevertheless expect to demonstrate how they have taken steps to bring the challenge ‘promptly’.

The Pre-action Protocol 9.08 Before commencing any claim for judicial review, steps should be taken to comply with the Pre-Action Protocol for Judicial Review. It is important to note that compliance with the Pre-Action Protocol has no effect on the limitation period and so, if the filing deadline is imminent, the periods of time contemplated for pre-action correspondence in the protocol may have to be abridged or, indeed, the claim may have to be filed without engaging with the Pre-Action Protocol. If the limitation period is about to expire and the claim is lodged without any pre-action steps being taken to engage with the defendant, it will ordinarily be appropriate to file the claim and simultaneously apply for a stay of proceedings in order for the steps contemplated by the Pre-Action Protocol to be taken. 9.09 The aims of the Pre-Action Protocol are to enable parties to prospective claims to: •

understand and promptly identify the issues in dispute in the proposed claim and share information and relevant documents;

•

make informed decisions as to whether and how to proceed;

•

try to settle the dispute without proceedings or reduce the issues in dispute;

•

avoid unnecessary expense and keep down the costs of resolving the dispute; and

•

support the efficient management of proceedings where litigation cannot be avoided.

9.10 The key requirement of the Pre-Action Protocol is the sending of a letter before claim, which identifies the issues in dispute to establish whether they can be narrowed, or whether litigation can be avoided. The Pre-Action Protocol sets out the information that ought to be included in a letter before claim, and provides a template for a claimant to follow.6 6 See Appendix E.

127

9.11  Judicial Review

9.11 Paragraph 16 of the Pre-Action Protocol specifies that: ‘The letter should contain the date and details of the decision, act or omission being challenged, a clear summary of the facts and the legal basis for the claim. It should also contain the details of any information that the claimant is seeking and an explanation of why this is considered relevant…’. 9.12 The letter of claim should also contain a proposed reply date, before which the claim should not be lodged. That reply date will usually be 14 days from the date of the letter of claim, unless there is a reason (such as the impending expiry of the limitation period, or some other reason for urgency) that requires the response period to be abridged. 9.13 Often, where a prior appeals process has been followed, or an application for a caution to be expunged has been made before judicial review is being considered, the summary of the facts and legal basis for the claim will be a near-replication of the submissions made under the prior procedure. The letter before claim should, in those circumstances, also identify any flaws in the reasoning or decision-making process that led to the refusal of the prior application or appeal. 9.14 If no reply is received from the defendant within the prescribed period it will usually be appropriate to file a claim for judicial review. If a response is received, it should be assessed whether the response answers the claim, whether further correspondence is necessary or might assist in reaching resolution of the claim without recourse to litigation, or whether a claim should be filed.

Grounds for judicial review 9.15 The three traditional grounds on which judicial review can be brought are • illegality; •

irrationality; and

•

procedural unfairness. 128

Grounds for judicial review 9.19

These are umbrella grounds, and it is often not easy or necessary to classify grounds of challenge by way of that formulation. There is scope for different grounds to prevail in different contexts, and it is impossible to set out with any authority the grounds that are likely to arise in individual cases. 9.16 A comprehensive survey of judicial review is outside the scope of this book. By way of example only, the following provides a brief summary of the grounds that may be most likely to arise if a claimant brings judicial review of a Chief Constable’s refusal to expunge a caution. 9.17 Most commonly, judicial review of a caution or of a refusal to expunge a caution is likely to be based on a failure to follow the Guidance. A failure to follow guidance is a well-established form of illegality: see, in a different context, the Supreme Court decision in Lumba v Secretary of State for the Home Department.7 The application of that legal principle in this kind of claim is uncontroversial, and the key will be in identifying the ways in which the caution under challenge departed from the Guidance. 9.18 It may also be the case that the police officer who offered the caution, or the Chief Constable who refused to expunge the caution, took into account irrelevant considerations or failed to take into account a relevant consideration when making the decision. If that has been the case, the decision may be irrational. It may also be that a failure to take into account a relevant consideration would constitute a breach of the Guidance, since the Guidance sets out the relevant matters to which a cautioning officer ought usually to have regard. 9.19 It may also be possible to argue that the caution amounts to a breach of the claimant’s Article 8 right to a private and family life if, for example, it is preventing the claimant from pursuing employment or moving abroad with family in circumstances where that impact is disproportionate in light of the offence for which the caution was received. It should be noted, however, that where the system overall is compliant with the ECHR, Article 8 (which features such as the filtering process have sought to ensure8), whether a specific challenge on the basis of Article  8 is viable will depend very much on the circumstances of the particular case. 7 [2011] UKSC 12, at para 26. 8 See Chapter 5 and note that at the time of publication aspects of the filtering scheme have been deemed by the Supreme Court to be in breach of Art 8: P, G and W v Secretary of State for the Home Department [2019] UKSC 3.

129

9.20  Judicial Review

9.20 Similar grounds are likely to be engaged in relation to the other challenges that may arise in relation to the subject matter of this book. An assessment of the particular circumstances and features of the individual case will be crucial in ensuring that properly arguable grounds of challenge are identified. They must be formulated at an early stage so that the unlawfulness that is alleged can be identified to the defendant in the letter before claim.

The claim form and acknowledgment of service 9.21 Judicial review claims are heard in the Administrative Court, and the judicial review claim form – called an N461 – is available on the gov.uk website. The website also contains guidance for completing the claim form. The detailed statement of facts and grounds are most often appended as a separate document, referred to in the relevant boxes of the claim form. 9.22 The Administrative Court currently has offices, and hears cases, in London, Birmingham, Leeds, Cardiff and Manchester. The claim should usually be filed in the region with which the claimant has the closest connection. If there are reasons why a different venue is preferred, those reasons should be set out in the claim form. 9.23 Once the claim has been filed, the court will issue the claim and provide the claimant with a sealed claim form. The three-month time limit in CPR 54.5 is for the filing of the claim, and not for the issuing of it by the court. As long as the claim is lodged with the Administrative Court office and the filing fee is paid, it will not be a breach of the limitation period if the Administrative Court takes a few days to issue the claim and provide the sealed claim form (though claimants should always be mindful of the fact that the primary timing requirement for judicial review is that the claim is brought ‘promptly’, and it is possible that a claim filed within three months may nevertheless fail for not having been brought promptly). 9.24 Once the claimant has the sealed claim form, they must serve it on the defendant within seven days.9 At the same time, they should serve the grounds of claim and any bundle of documents that has been lodged with the court and is relied 9 CPR 54.7.

130

The permission stage 9.28

on for the claim. It should be noted that parties in public law proceedings are subject to a duty of candour and should therefore ensure that all relevant information is put before the court. 9.25 After serving the papers on the defendant, the claimant must file a certificate of service with the Administrative Court Office (by using form N215, also available on the gov.uk website) within 21 days of service of the claim form. 9.26 The defendant must then file an acknowledgment of service not more than 21 days after service of the claim form, and serve it on the claimant as soon as practicable and in any event no more than seven days after it has been filed.10 There is no provision for parties to agree any extension of those periods of time.Where the defendant intends to contest the claim, the acknowledgment of service must set out a summary of the grounds for resisting the claim. 9.27 Once the defendant has complied with CPR 54.8, there is no formal right of reply. If, however, matters arise in the defendant’s acknowledgment of service or summary grounds that require a response from the claimant or amendment to the grounds of claim, the claimant should write to the court putting them on notice that a reply will be filed and served as soon as possible, and asking that the court does not put the file before a judge for a permission decision until the reply has been received. Ordinarily, the court is prepared to provide a reasonable period of time for the claimant to file a reply before the claim proceeds to the permission stage.

The permission stage The threshold and process 9.28 Judicial review claims are subject to an arguability threshold. If, on the claimant’s grounds of challenge, it is arguable that the defendant’s decision is unlawful, the claim will cross the permission threshold and should proceed to a substantive hearing. If the claim is deemed to be unarguable, permission to proceed will be refused.

10 CPR 54.8.

131

9.29  Judicial Review

9.29 The permission decision is first taken by a High Court judge or Deputy High Court judge on the papers. Permission may be granted on some or all of the claimant’s grounds. If permission is granted, the judge will make directions on the papers for how the claim is to proceed. Whatever the outcome of the paper stage, reasons will be provided to the claimant. 9.30 If permission is refused on some or all of the claimant’s grounds, the claimant has the right to an oral permission hearing, called an oral renewal, unless the permission judge has certified the claim as totally without merit.11 It will be clear from the permission decision whether that is the case. A  claim will be totally without merit if it is bound to fail. 9.31 If a claimant whose claim has not been deemed to be totally without merit, but in relation to which permission has been refused, wants to proceed to an oral renewal hearing, they must file that request within seven days of receiving the reasons for refusal of permission.12 The Administrative Court will usually list oral renewal hearings in a ‘permission list’, in which hearings are usually short (30 minutes including judgment) and the defendant’s attendance is generally not expected.13 At the end of the hearing, the judge will either grant or refuse permission.

Costs 9.32 If permission is refused, either on the papers (and the claimant does not renew the application at a hearing) or after an oral renewal hearing, the claimant is liable for the defendant’s reasonable costs of preparing the acknowledgment of service.The defendant will not usually be entitled to recover costs for any other expense, including attendance at any oral hearing. The key case on this is R (on the application of Mount Cook Land Ltd) v Westminster City Council,14 in which Auld LJ said that: ‘Generally – that is, save in exceptional circumstances – costs of and occasioned by such attendance [at an oral renewal hearing] should not be awarded against a claimant… [judges] should not allow the court 11 CPR 54.12(7). 12 CPR 54.12(4). 13 CPR PD 54 para 8. 14 [2003] EWCA Civ 1346.

132

The substantive stage 9.37

to be sucked into lengthy and fully argued oral hearings that transform the process from an inquiry into arguability into that of a rehearsal for, or effectively, an expedited and full hearing of the substantive claim’.15 9.33 ‘Exceptional circumstances’ justifying the award of costs against a claimant include the hopelessness of the claim, persistence in the claim even after the claimant has been alerted to its hopeless nature, whether the claim is abusive, or whether the claimant has effectively had the benefit of a full hearing – but these circumstances are not exhaustive and whether it is appropriate to award further costs against a claimant at the permission stage will depend on the circumstances of the case.16 In our experience, it is very rare for costs beyond the costs of the acknowledgment of service to be awarded against a claimant who fails at the permission stage. 9.34 The range of costs generally claimed by a defendant for preparing the acknowledgment of service varies considerably, from several hundred pounds to several thousand. If an amount is claimed that appears to be unreasonable, the claimant should make submissions to that effect. 9.35 If the claimant succeeds in obtaining permission to proceed, costs are usually held over to be dealt with at the conclusion of the substantive hearing.

The substantive stage 9.36 Judicial review claims relating to criminal matters such as the lawfulness of cautions are ordinarily allocated to a Divisional Court, meaning that a panel of two High Court judges will usually hear the case.The burden is on the claimant to establish, on the balance of probabilities, that the impugned decision was unlawful. Evidence in substantive hearings is almost always by way of witness statements, without cross-examination, since the areas of dispute in judicial review hearings tend to be legal rather than evidential. 9.37 In most judicial reviews relating to criminal records, the remedy sought will be a quashing order, quashing the caution or quashing the decision to disclose 15 At paras 72–73. 16 R (on the application of Wilson) v The Prime Minister [2019] EWCA Civ 304, paras 71–73.

133

9.38  Judicial Review

information about a claimant. If the court accepts that the defendant has acted unlawfully, the court is likely to grant relief in the form of a quashing order or, sometimes, a declaration. The court does, however, retain a discretion to find that the defendant has acted unlawfully but not grant relief. In particular, pursuant to the Senior Courts Act 1981, s 31(2A), the court must refuse relief ‘if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’. That has generally been interpreted as meaning that if there was a minor procedural deviation that means the decision was unlawful, but if a lawful procedure had been followed the decision would inevitably have been the same, relief will not be granted. It will be an unusual case in which unlawfulness would make no difference to the outcome, so a successful applicant can normally expect that they will obtain relief. 9.38 If a claimant succeeds in a judicial review claim, they should apply for recovery of their costs from the defendant, which the court will usually grant.

134

10 Anonymity and Privacy in Criminal Proceedings Introduction 10.01 This chapter looks at the ways in which a person’s identity may be kept private in criminal proceedings, and the circumstances in which the public may be excluded from parts of hearings. The situations in which either of those outcomes will be possible are rare, but they do exist. This chapter considers the open justice principle, and then looks at how the identities of victims and witnesses might be protected, how the identity of a defendant might be protected, and finally at provisions that may be made for private hearings. 10.02 The reputational implications of being involved in criminal proceedings are often a real concern for defendants and witnesses, but the importance of open justice means that, other than in very limited circumstances, there will usually be no basis for withholding from the public the identity of individuals involved in criminal trials.1 In the rare cases in which it may be possible, it may be achieved either by true anonymity, ie  an individual not being named in the proceedings at all, but being referred to by a cipher (eg AB), or by an order preventing reporting of their identity outside the proceedings (but their real name being used in the course of the proceedings). Both of these situations are considered in this chapter. Reporting restrictions are also considered in Chapter 11, but where a reporting restriction is specifically targeted at a person’s identity, it is addressed in this chapter since it will often achieve what an individual seeks by way of ‘anonymity’.

1 The Judicial College Guidelines on Reporting Restrictions cites the civil case of Global Torch v Apex Global Management Ltd [2013] 1 WLR 2993, CA, as authority for the fact that open justice, Art 10 and Art 6 ECHR would generally trump the Art 8 rights to reputation of parties and witnesses – a balance which is likely to tend even more strongly against withholding information from the public in a criminal case.

135

10.03  Anonymity and Privacy in Criminal Proceedings

The open justice principle 10.03 The open justice principle is fundamental to the conduct of court proceedings because of ‘the value of public scrutiny as a guarantor of the quality of justice’.2 Ordinarily it has the consequence that the identities of parties and witnesses in criminal proceedings are in the public domain, and that the public and press have unfettered access to attend criminal hearings. As the Court of Appeal observed in Guardian News and Media Ltd v Incedal:3 ‘The Rule of Law is a priceless asset of our country and a foundation of our Constitution. One aspect of the Rule of Law – a hallmark and a safeguard – is open justice, which includes criminal trials being held in public and the publication of the names of defendants. Open justice is both a fundamental principle of the common law and a means of ensuring public confidence in our legal system; exceptions are rare and must be justified on the facts. Any such exceptions must be necessary and proportionate. No more than the minimum departure from open justice will be countenanced.’ Any deviations from the open justice principle must therefore have a strong public interest justification. 10.04 The primary importance of the open justice principle in criminal proceedings is summarised in the Judicial College Guidelines on reporting restrictions,4 as follows: ‘Open justice helps to ensure that trials are properly conducted. It puts pressure on witnesses to tell the truth. It can result in new witnesses coming forward. It provides public scrutiny of the trial process, maintains the public’s confidence in the administration of justice and makes inaccurate and uninformed comment about proceedings less likely. Open court proceedings and the publicity given to criminal trials are vital to the deterrent purpose behind criminal justice. Any departure from the open justice principle must be necessary in order to be justified.’

2 Lord Sumption in Khuja v Times Newspapers [2017] 3 WLR 351, at para 13. 3 [2014] EWCA Crim 1861, per Gross LJ. 4 See www.judiciary.uk/wp-content/uploads/2015/07/reporting-restrictions-guide-may-2016-2.pdf.

136

The open justice principle 10.07

10.05 The courts themselves have made similar observations. One of the most significant cases in this area is the House of Lords judgment in Attorney General v Leveller Magazine Ltd,5 where Lord Diplock observed that: ‘As a general rule the English system of administering justice does require that it be done in public: Scott v Scott [1913] AC 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.’ 10.06 More recently in DSD v Parole Board,6 a three-judge Divisional Court noted that the principle of open justice is ‘of constitutional importance’ and ‘the rights which flow from it are fundamental in nature’.7 10.07 Nevertheless, it is uncontentious that there are some exceptions to this basic but crucial principle. As the House of Lords in Attorney General v Leveller (as above) held:8 ‘However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule. Apart from statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice.’ 5 [1979] AC 440. 6 [2018] EWHC 694 (Admin). 7 At para 169 of the judgment. 8 See also the Supreme Court in Khuja v Times Newsapers [2017] UKSC 49, at para 14.

137

10.08  Anonymity and Privacy in Criminal Proceedings

10.08 This chapter, in combination with Chapter 11, covers those rare circumstances in which a departure from open justice in the conduct of criminal proceedings will be necessary, so that individuals involved in criminal proceedings may benefit from anonymity (or at least from limits on the dissemination of their identity), members of the public may be excluded from attendance at hearings, or the reporting of proceedings may be subject to restriction. 10.09 This chapter deals with the position in relation to the conduct of criminal proceedings, focusing on how and when the identity of participants in criminal proceedings might be protected, and on when the public might be excluded from attending hearings. Chapter 11 addresses the reporting of criminal proceedings, and restrictions that might apply in respect of what can be reported. These two chapters should be read together by anyone interested in exploring how and when the dissemination of information relating to criminal proceedings can be limited. 10.10 In some situations, participants in criminal trials (or those involved at an earlier stage of criminal proceedings, for example during a criminal investigation) benefit from an automatic right to anonymity by operation of statute. In other situations, it may be possible to make an application for anonymity, or an application for an injunction to limit or prevent reporting of the proceedings and thereby protect an individual’s privacy rights (on which, see Chapter 11). Similarly, there are some hearings which are automatically held in private, and there are other situations in which it is possible to apply for parts of a hearing to be heard in private. 10.11 This chapter deals first with the question of anonymity for victims and witnesses; then with anonymity for defendants; and then with private hearings. Each of these represents a real departure from the norm of open justice, and it is only in rare and circumscribed situations that they will arise.

Protecting the identities of victims and witnesses involved in criminal proceedings 10.12 Automatic protection of the identity of witnesses in criminal proceedings occurs in relation to: 138

Protecting the identities of victims and witnesses involved in criminal proceedings 10.15

•

complainants of sexual offences;

•

victims of female genital mutilation; and

•

youth witnesses in youth court proceedings.

10.13 Discretionary protection of witnesses’ identities is also available by way of witness anonymity orders and investigation anonymity orders. Some degree of protection of witnesses’ identities may also be available by the provision of special measures for the giving of their evidence, or by the imposition of reporting restrictions.

Automatic protection for victims and witnesses involved in criminal proceedings Complainants of sexual offences 10.14 By the Sexual Offences (Amendment) Act 1992, s 1: ‘(1) Where an allegation has been made that an offence to which this Act applies has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed. (2) Where a person is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify a person against whom the offence is alleged to have been committed (“the complainant”) shall during the complainant’s lifetime be included in any publication’. 10.15 The effect of that section is that anyone who is alleged to have been the victim of a relevant sexual offence has lifelong anonymity, whether or not criminal proceedings are brought against the alleged perpetrator of the offence. The prohibition on publishing anything that might identify a complainant ‘encompasses publication of prohibited material by anyone by whatever means publication occurs, and extends to bloggers and twitterers or any other commentators’.9 It also extends to ‘jigsaw identification’, where an accumulation 9 R (Press Association) v Cambridge Crown Court [2012] EWCA Crim 2434, para 9.

139

10.16  Anonymity and Privacy in Criminal Proceedings

of details, each of which does not identify a complainant, when viewed together are capable of leading to identification. The prohibition does not mean that a complainant will be anonymous in court, but it prevents their identity being published to the world at large, whether by the media or by anyone else. 10.16 Section 2 of the Sexual Offences (Amendment) Act 1992 sets out the relevant offences in relation to which complainants may not be identified. They include rape, indecent assault, sexual assault, child sex offences under the Sexual Offences Act 2003, and prostitution offences. Section 2 contains an exhaustive list of the relevant offences. Following the passage of the Modern Slavery Act 2015, victims and alleged victims of human trafficking for exploitation (even where that is, for example, for domestic labour rather than for sexual purposes) are also protected by the anonymity provisions of the Sexual Offences (Amendment) Act 1992 (see s 2(1)(db)). 10.17 The operation of the Sexual Offences (Amendment) Act 1992 is automatic, and therefore no action needs to be taken nor any application made in order for a complainant to benefit from its provisions. It will often be good practice for a judge hearing proceedings in which a person is protected by anonymity to remind members of the public and press that the restriction applies, but the obligation to comply with the restriction rests on publishers, not on the court.10 10.18 Section 3 of the Act makes provision for the removal of automatic anonymity in certain circumstances. A defendant may apply to the judge under s 3(1) for a complainant’s anonymity to be lifted if that is necessary for the purpose of inducing potential witnesses to come forward, and the applicant’s defence is likely to be substantially prejudiced if anonymity is not lifted. A similar provision applies in appellate proceedings by way of s 3(3). Further, if the judge is satisfied at trial that s  1 imposes a substantial and unreasonable restriction upon the reporting of proceedings and it is in the public interest to remove or relax the restriction, a direction under s 3(2) may be made to bring that into effect. 10.19 Section 1(4) of the Act also provides for an exception to the automatic right to anonymity, described by the Judicial College Reporting Restrictions Guidelines11 as follows:

10 R (Press Association) v Cambridge Crown Court [2012] EWCA Crim 2434. 11 Endorsed in R v Beale [2017] EWCA Crim 1012, para 15 as ‘an accurate statement of the law’.

140

Protecting the identities of victims and witnesses involved in criminal proceedings 10.22

‘the media is free to report the victim’s identity in the event of criminal proceedings other than the actual trial or appeal in relation to the sexual offence. This exception caters for the situation where a complainant in a sexual offences case is subsequently prosecuted for perjury or wasting police time in separate proceedings. It appears to have been the intention of Parliament, however, that a complainant would retain anonymity if, during the course of proceedings, sexual offences charges are dropped and other non-sexual offence charges continue to be prosecuted’.12 10.20 It is the case that anonymity applies if a charge for a non-sexual offence is prosecuted (eg assault rather than sexual assault) as long as the allegation was of sexual assault, or capable of amounting to sexual assault. Furthermore, the protection will apply if no criminal charges are ever brought against the alleged perpetrator: what is relevant for the protection of s 1 to be engaged is that ‘an allegation has been made’. 10.21 In general, unless the exception (for eg perjury proceedings) does not apply, or an order has not been made lifting anonymity, it is a criminal offence to publish any material identifying a complainant.13 It is a defence for a person charged with a breach offence to prove that the complainant gave written consent to the publication (unless that written consent was obtained by unreasonable interference with the complainant’s peace or comfort, or the complainant is under 16). It is also a defence to prove that at the time of publication the defendant was not aware, and neither suspected nor had reason to suspect, that the publication included material in breach of s  1. Anyone convicted of an offence is liable to be fined. There is no limit on the value of the fine that the court can impose.14

Victims of female genital mutilation 10.22 The Female Genital Mutilation Act 2003, s  4A and Sch  1 (inserted by the Serious Crime Act 2015), make equivalent provision to the Sexual Offences (Amendment) Act 1992 in respect of victims or alleged victims of female genital mutilation.15 Again, lifetime anonymity is automatically provided, subject to the power to direct exceptions to it in specified circumstances (eg  to avoid 12 Judicial College Guidelines on reporting restrictions, para 3.2. 13 Sexual Offences (Amendment) Act 1992, s 5. 14 Section 5 specifies a Level 5 fine which, for offences committed after 13 March 2015, is unlimited. 15 The specific offences for which a victim or alleged victim is entitled to anonymity are contained in the Female Genital Mutilation Act 2003, Sch 1, para 9.

141

10.23  Anonymity and Privacy in Criminal Proceedings

substantial prejudice to a defendant’s defence, or where allowing the press to make a full report would be in the public interest, though that exception will only rarely be engaged). A  breach of the automatic right to anonymity is a criminal offence subject to a fine on conviction.

Youth witnesses in youth court proceedings 10.23 Section 49 of the Children andYoung Persons Act 1933 prohibits the publication of anything likely to lead members of the public to identify anyone under the age of 18 who is ‘concerned in’ proceedings in the youth court or on appeal from the youth court. By s  49(4), youth witnesses fall within the protected category of persons, and nothing may be published about the proceedings that would tend to identify them. Section 49 also provides protection to youth defendants, and is considered in more detail in the section relating to defendants at para 10.59 ff.

Discretionary protection for victims and witnesses Witness anonymity orders 10.24 Sections 86–90 of the Coroners and Justice Act 2009 make provision for the imposition of witness anonymity orders, through which a witness may be able to obtain true anonymity in proceedings. These are orders made to ensure that the identity of a witness is not disclosed in or in connection with proceedings, and may extend to taking measures such as: •

withholding the witness’s name and other identifying materials, including redacting it from case papers;

•

referring to the witness by a pseudonym;

•

prohibiting the asking of any questions of the witness which might lead to identification of the witness;

•

screening the witness (except that the witness may not be screened from the judge, other members of the court, or jury);

•

modulation of the witness’s voice (except it may not be modulated to prevent it being heard by the judge, other members of the court or jury).

10.25 Either a prosecutor or a defendant/defence representative may apply under the Coroners and Justice Act 2009, s  87 for a witness anonymity order. If 142

Protecting the identities of victims and witnesses involved in criminal proceedings 10.27

the prosecutor is making the application, they must, unless the court directs otherwise, inform the court of the witness’s identity, but they need not identify the witness to the defendant or defence representatives. If a defendant is making the application, they must inform both the court and the prosecutor of the witness’s identity, but need not identify the witness to any co-defendants. 10.26 The obligation for a defendant to inform the prosecutor of the identity of a witness in respect of whom an application for a witness anonymity order is made is absolute and unconditional: ‘… section 87(3), mandates (‘must’) disclosure by the defendant of the identity of any anonymous witness upon whom reliance is intended to be placed. Although s 87(4) makes it clear that disclosure is to be prevented prior to the determination of the application, there is a specific exemption in relation to disclosure to the prosecutor. 36. Neither is it difficult to understand why the legislation is constructed in that way. The court is given a discretion in relation to the identity of a witness in respect of which the prosecution apply because of the obligation placed on the Crown16 to investigate the antecedents of the proposed witness and to ensure that any application or order is consistent with a fair trial. … 38. … Neither is it appropriate to read into s 87(3) the words “unless to inform the prosecution would deprive the defendant of a fair trial” because that would run counter to the structure of the legislation and deprive the prosecution of the essential ability to do the same research in relation to defence witnesses as they have to do in relation to any witness whom they wish to call anonymously’.17 10.27 An order for witness anonymity will be made if the conditions in the Coroners and Justice Act 2009, s 88 are met, namely: •

the proposed order is necessary in order to protect the safety of the witness or another person or to prevent any serious damage to property, or in order to prevent real harm to the public interest. In determining whether it is necessary, the court must have particular regard to any reasonable fear on the part of the witness that they or another person would suffer injury

16 Pursuant to the Criminal Procedure and Investigations Act 1996, and the Attorney General’s Guidance on the Prosecutor’s Role in Applications for Witness Anonymity Orders. See also the DPP’s Guidance on Witness Anonymity. 17 R v Sardar [2016] EWCA Crim 1616, paras 35–38.

143

10.28  Anonymity and Privacy in Criminal Proceedings

or death, or there would be serious damage to property, if the witness were to be identified; •

having regard to all the circumstances, the effect of the proposed order would be consistent with the defendant receiving a fair trial; and

•

the importance of the witness’s testimony is such that in the interests of justice the witness ought to testify, and would not testify if the proposed order were not made, or there would be real harm to the public interest if the witness were to testify without the proposed order being made.

10.28 Before making a witness anonymity order, the court must also have regard to: •

the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings;

•

the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed;

•

whether evidence given by the witness might be the sole or decisive evidence implicating the defendant;

•

whether the witness’s evidence could be properly tested (whether on grounds of credibility or otherwise) without his or her identity being disclosed;

•

whether there is any reason to believe that the witness: (i)

has a tendency to be dishonest; or

(ii) has any motive to be dishonest in the circumstances of the case, having regard (in particular) to any previous convictions of the witness and to any relationship between the witness and the defendant or any associates of the defendant; •

whether it would be reasonably practicable to protect the witness by any means other than by making a witness anonymity order specifying the measures that are under consideration by the court; and

•

any other matters the court considers to be relevant.

10.29 Applications for witness anonymity orders are made pursuant to the Criminal Procedure Rules 2015, r 18.9. An application must include nothing that might reveal the witness’s identity. It must describe the measures proposed by the applicant and explain how the conditions in the Coroners and Justice Act 2009, s  88 are met. It must also explain why no other measure would suffice, for example an admission of facts, an order restricting public access to the trial, 144

Protecting the identities of victims and witnesses involved in criminal proceedings 10.34

special measures or reporting restrictions. To this extent, a witness anonymity order is a measure of last resort. Special measures are considered at para 10.39 ff, while information relating to reporting restrictions is in Chapter 11. 10.30 An application for a witness anonymity order must also attach a witness statement setting out the proposed evidence, edited so that it does not reveal the witness’s identity. 10.31 A witness anonymity order may be made at a hearing (which must be private unless the court directs otherwise) or without a hearing. It may also be made in the absence of a defendant, although it must not be made without each party to the trial having the opportunity to make representations.18 10.32 Breach of a witness anonymity order is a contempt of court.

Investigation anonymity orders 10.33 Investigation anonymity orders (IAOs), pursuant to the Coroners and Justice Act 2009, Part 3, Chapter 1, may be made in murder and manslaughter investigations where the offence was committed with a firearm or a knife. IAOs protect the identity of a witness, at the pre-trial stage, by prohibiting their identification. In practice, witnesses subject to an IAO are referred to by a pseudonym.The purpose of IAOs is to encourage co-operation with the police and assist investigations into gang-related deaths, and they are obtained by an application by the relevant police force to a justice of the peace, made under the Coroners and Justice Act 2009, s 77. 10.34 An IAO will be granted only if: •

the offence is likely to have been committed by someone aged between 11 and 29; and

•

the person who committed the offence is likely to be in a gang;

•

the witness has reasonable grounds for fearing intimidation or harm if identified as a person who is or was able or willing to assist the criminal investigation; and

18 Criminal Procedure Rules 2015, r 18.

145

10.35  Anonymity and Privacy in Criminal Proceedings

•

the witness is able to provide information that would assist the criminal investigation and, if they are provided with an IAO, are more likely than not to provide that information.

10.35 Witnesses who have been protected by an IAO at investigation stage are often, though not necessarily (and not automatically) entitled to a witness anonymity order if the case goes to trial. A separate application for a witness anonymity order must be made.

Reporting restrictions relating to the identity of witnesses 10.36 Sections 45 and 45A of the Youth Justice and Criminal Evidence Act 1999 give the criminal courts a power to order that nothing shall be published identifying a young person concerned in proceedings (other than youth court proceedings). While those provisions protect the identity of young people as regards the general public, it does not prevent them from being named in court (it only prevents publication of their identity beyond the court room). The detail of these powers is considered, along with other reporting restrictions, at paras 11.35–11.44. A similar power is provided in respect of adult witnesses requiring protection by the Youth Justice and Criminal Evidence Act 1999, s 46 (addressed at para 11.45).

Restrictions imposed by operation of the court’s inherent jurisdiction 10.37 The criminal courts are creatures of statute and there is therefore debate over whether they have any inherent jurisdiction to make orders protecting an individual’s identity. In R  (on the application of Trinity Mirror plc) v Croydon Crown Court,19 the Court of Appeal held that the Crown Court has no inherent jurisdiction to prohibit the identification of a defendant and his children. However, by the Senior Courts Act 1981, s 45, the Crown Court does have the power to make orders ‘incidental’ to its statutory jurisdiction, in matters including relating to the examination of witnesses. That power is limited, however: matters are ‘incidental’ to the Crown Court’s jurisdiction only when they relate to the proper dispatch of the business before it.20 10.38 The Crown Court does, on occasion, allow witnesses to give evidence without following the usual practice of stating the witness’s name in open 19 [2008] EWCA Crim 50. 20 R (on the application of Trinity Mirror plc) v Croydon Crown Court [2008] EWCA Crim 50.

146

Protecting the identities of victims and witnesses involved in criminal proceedings 10.40

court (that may be a matter ‘incidental’ to its statutory jurisdiction, as defined above). This is, for example, the usual practice in blackmail cases, so that the witness does not have to identify themselves before giving evidence.21 Further, in R (on the application of JC) v Central Criminal Court,22 considering anonymity in criminal proceedings, the Court of Appeal noted at para 45 that, ‘the common law gives power to allow a person involved in proceedings to withhold his name from the public and the press; although the common law also imposes a high hurdle before that is done’. See also the Supreme Court in Khuja v Times Newspapers Ltd:23 ‘In criminal proceedings, the common law power to withhold the identity of witnesses from a defendant was abolished by s  1(2) of the Criminal Evidence (Witness Anonymity) Act 2008… But the court retains the power which it has always possessed to allow evidence to be given in such a way that the identity of a witness or other matters is not more widely disclosed in open court’.

Special measures 10.39 Although special measures pursuant to the Youth Justice and Criminal Evidence Act 1999, ss  16–30 do not, strictly speaking, provide for the anonymity of witnesses, they ought to be considered whenever it appears that a witness requires protection of some sort, and before any application for a witness anonymity order is made. The procedure for making applications for special measures is covered in the Criminal Procedure Rules 2015, rr 18.8–18.13. 10.40 Special measures are only available for witnesses, not defendants. They are available for: •

witnesses under the age of 18 (‘child witnesses’);

•

witnesses who suffer from a mental disorder, a disability, or a significant impairment of intelligence and social functioning; or

•

any witness if the court is satisfied that the quality of evidence given by a witness is likely to be diminished because of fear or distress on the part of the witness in connection with testifying in the proceedings.

21 See eg NT1 v Google LLC [2018] EWHC 67 (QB), para 29. As to the inherent power of the court to withhold a person’s name from the public, see eg HM Advocate v McAllister [2014] HCJ 111, para 14. 22 [2014] EWCA Civ 1777. 23 [2017] UKSC 49, at para 14.

147

10.41  Anonymity and Privacy in Criminal Proceedings

10.41 Special measures are also automatically available for complainants of certain offences (as contained in the Youth Justice and Criminal Evidence Act 1999, s 17(4) and 17(5)). 10.42 Available special measures include: •

evidence in chief being given by way of a video recording;

•

screening the witness from the accused;

•

the giving of evidence by live link;

•

the giving of evidence in private;

•

removal by counsel and the judge of wigs and gowns during the witness’s evidence; and

•

examination of the witness through an interpreter or intermediary.

10.43 In determining which special measures to direct, the court is required to consider which would be likely to improve the quality of evidence given by the witness, and direct those measures that are likely to maximise, so far as practicable, the quality of the witness’s evidence.

Protecting the identity of suspects and defendants 10.44 As with victims and witnesses, defendants will occasionally be subject to automatic protection of their identity, and may sometimes be able to obtain a discretionary order. The particular provisions that are relevant are affected by the stage the proceedings have reached (particularly whether a charge has been laid). This section considers the various powers that apply once criminal proceedings have commenced (ie once a person is charged with an offence), along with some statutory protection available to suspects pre-charge. Chapter 12 addresses privacy considerations that may allow a suspect who does not benefit from any of the statutory protections, below, to nevertheless withhold their identity from the public.

148

Protecting the identity of suspects and defendants 10.50

Statutory anonymity for suspects 10.45 Automatic protection of a suspect’s identity applies in very limited circumstances, if: •

they are a teacher subject to an allegation by a pupil of criminal offending;

•

they are also a complainant of a sexual offence, and identifying them as a suspect would identify them as being a complainant.

10.46 Parliament has also provided for automatic anonymity for suspects of criminal offences who are under 18 years of age; that provision is addressed briefly below but the Government has not yet brought it into force.

Education Act 2002, s 141F 10.47 The Education Act 2002, s  141F24 grants automatic anonymity pre-charge to teachers who are the subject of an allegation of criminal offending made by a pupil. 10.48 Section 141F(3) contains the relevant prohibition: ‘No matter relating to the person is to be included in any publication if it is likely to lead members of the public to identify the person as the teacher who is the subject of the allegation.’ 10.49 The rationale behind the prohibition was described in the parliamentary debates as being the greater risk faced by teachers of becoming subject to false accusations, because of their responsibility for managing pupils’ behaviour. If proceedings are instigated in relation to the allegation (ie the police or the CPS have reviewed the evidence and laid a charge), the prohibition in s  141F(3) ceases to apply. 10.50 It is an offence for any publication to breach the prohibition in s 141F(3) (see the Education Act 2002, s 141G), which would include, for example, publishing it on Twitter or other social media networks. 24 Inserted by the Education Act 2011, s 13(1).

149

10.51  Anonymity and Privacy in Criminal Proceedings

10.51 Although the automatic starting point under s  141F is that nothing may be published to identify a teacher who is the subject of allegations, any person may apply for the restriction in sub-s (3) to be lifted, and a court may make an order dispensing with the restriction if it is in the interests of justice to do so.25 Further, the restriction applies only until proceedings are instituted for an offence (at which stage the defendant loses the right to anonymity).26 10.52 The anonymity protection in s 141F(3) ceases to apply if: •

proceedings for the offence are instituted;27

•

the Secretary of State (in England) or the General Teaching Council (in Wales) publishes information about the person who is the subject of the allegation in connection with a statutory disciplinary investigation relating to the same allegation;28 or

•

the person who is the subject of the allegation includes a matter in a publication, or provides written consent for another person to include a matter in a publication, that would otherwise be in breach of s 141F(3).29

The Sexual Offences (Amendment) Act 1992 10.53 The Sexual Offences (Amendment) Act 1992 grants automatic lifetime anonymity to individuals who have alleged that they are victims of certain sexual offences. While it will be rare that the reporting of a suspect’s identity would reveal them to be a person who has made an allegation of sexual assault, it is conceivable that such a case could occur. One example would be where a suspect for an offence of outraging public decency alleges as their defence that the act in question was not consensual. In such a circumstance, the identity of the suspect would be protected by operation of the Sexual Offences (Amendment) Act 1992. The provisions in the Act are addressed at paras 10.14–10.21.

Youth Justice and Criminal Evidence Act 1999, s 44 (not yet in force) 10.54 The Youth Justice and Criminal Evidence Act 1999, s 44, provides that, where a criminal investigation has begun, no matter relating to any person who is 25 Education Act 2002, s 141F(4) and (5). 26 Education Act 2002, s 141F(10). 27 Education Act 2002, s 141F(10). 28 Education Act 2002, s 141F(11). 29 Education Act 2002, s 141F(12).

150

Protecting the identity of suspects and defendants 10.57

under 18 and ‘involved’ in the offence may be included in any publication if it is likely to lead members of the public to identify them as a person involved in the offence. As such, it would provide anonymity for child suspects (or, indeed, child witnesses or complainants) at the investigation stage of an offence. 10.55 Section 44 is not yet in force, and there is no recent indication of any intention by the Government to bring it into force.

Anonymity after charge 10.56 It is extremely rare for a defendant, once charged with an offence, to be entitled to anonymity. The importance of open justice in active criminal proceedings is substantial, and there are very few justifications for deviation from it. In re Trinity Mirror plc,30 a five-judge constitution of the Court of Appeal held that: ‘In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offences should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime … From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case.’31 10.57 An automatic exception to the principle that a defendant will be publicly named occurs in youth court proceedings.An exception may also be engaged by operation of the Sexual Offences (Amendment) Act 1992, subject to important limitations which are discussed below. It is conceivable, though exceptionally rare, that the Human Rights Act 1998 (HRA 1998) may operate to provide discretionary anonymity for a defendant in criminal proceedings (for example if there were a real risk to life if they were named).

30 [2008] EWCA Civ 50. 31 In re Trinity Mirror plc [2008] QB 770, at para 32.

151

10.58  Anonymity and Privacy in Criminal Proceedings

Proceedings in the youth court 10.58 The major express legislative deviation from the open justice principle, postcharge, is in relation to defendants in youth court proceedings. 10.59 By the Children and Young Persons Act 1933, s 49 (as amended): ‘(1) No matter relating to any child or young person concerned in proceedings to which this section applies shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as someone concerned in the proceedings. (2) The proceedings to which this section applies are: (a) proceedings in a youth court; (b) proceedings on appeal from a youth court (including proceedings by way of case stated); (c) proceedings in a magistrates’ court under Schedule  2 to the Criminal Justice and Immigration Act 2008 (proceedings for breach, revocation or amendment of youth rehabilitation orders); (d) proceedings on appeal from a magistrates’ court arising out of any proceedings mentioned in paragraph (c) (including proceedings by way of case stated)’. 10.60 A young person is ‘concerned in’ the proceedings if they are a person against or in respect of whom the proceedings are taken (ie they are a defendant or victim in the proceedings), or they are called or proposed to be called to give evidence in the proceedings.32 10.61 ‘Publication’ is defined widely, such that it includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public.That would include social media postings as well as publications by traditional media. Examples of the kind of information that should not be published if it gives rise to a risk of identifying a young person include the individual’s name, address, school, place or work and any still or moving picture of them. Defendants in youth court proceedings are therefore prima facie protected by anonymity as to their identity, as long as they 32 Children and Young Persons Act 1933, s 49(4).

152

Protecting the identity of suspects and defendants 10.65

remain under 18. If, however, a defendant turns 18 in the course of proceedings, although the youth court will retain the matter until completion, the defendant loses the anonymity protection of the Children and Young Persons Act 1933, s 49.33 10.62 A court may order the lifting of anonymity of a young person who has been convicted of an offence, and in certain other specified circumstances, for example where it is appropriate to do so for the purpose of avoiding injustice to the child or young person.34 Absent an order to this effect, however, the automatic anonymity provisions apply, and breach of them is a criminal offence punishable by a Level 5 (unlimited) fine.

The Sexual Offences (Amendment) Act 1992 10.63 As discussed above at paras 10.14–10.21, the Sexual Offences (Amendment) Act 1992 grants automatic lifetime anonymity to individuals who have alleged that they are victims of certain sexual offences. That will rarely, but may, affect defendants in criminal proceedings. For example, if a defendant to a charge of outraging public decency says in their defence that the act complained of was not consensual, that may bring them within the protection of the 1992  Act. 10.64 The extent to which a defendant who has made a complaint of a relevant sexual offence will be protected by the Sexual Offences (Amendment) Act 1992, s 1, is limited by the provisions of s 1(4), which states that: ‘(4) Nothing in this section prohibits the inclusion in a publication of matters consisting only of a report of criminal proceedings other than proceedings at, or intended to lead to, or on an appeal arising out of, a trial at which the accused is charged with the offence’. 10.65 This means, for example, that a person being prosecuted for perjury and perverting the course of justice in relation to an allegedly false rape allegation will not benefit from s 1 anonymity.35

33 T v DPP and North East Press [2003] EWHC 2408 (Admin). 34 Children and Young Persons Act 1933, s 49(4A), (5). 35 R v Beale [2017] EWCA Crim 1012.

153

10.66  Anonymity and Privacy in Criminal Proceedings

10.66 In addition, s 1 will not extend to providing anonymity for defendants who are alleged perpetrators of sexual offences, even where the complainant is protected by statutory anonymity and identification of the defendant runs the risk of identifying the complainant (for example, if it is clear from the facts of the offence that the defendant’s partner is the complainant). The Sexual Offences (Amendment) Act 1992 places an obligation (breach of which is a criminal offence) on editors to ensure that no information identifying a complainant is published, and they are required to adhere to that duty in all circumstances.That may mean, in effect, they are constrained in publishing the identity of a defendant if that is likely to identify a complainant in breach of the Act, but the Act does not equip a court with the power to make orders restricting publication, and it does not justify or permit specifically anonymising a defendant even if the intention is to protect the complainant.36 The provisions of the Act itself, and the duty on publishers to comply with it, is considered to be sufficient.

Anonymity pursuant to the Human Rights Act 1998 10.67 Courts are a public authority for the purposes of the HRA 1998, and therefore are required by the HRA 1998, s 6 not to act in a way that is incompatible with rights under the European Convention on Human Rights. In cases, therefore, where publication of the identity of the defendant would lead to a real risk of breach of an individual’s Convention rights, the courts (or at least, the senior courts, eg  the High Court) have a power to make an anonymity order or reporting restriction to protect against any breach. Examples of when such a step might be necessary are when there are circumstances giving rise to danger to the life or limb of an individual (breaching Article 2, the right to life, or Article 3, the right to freedom from inhuman and degrading treatment), risks to the fair administration of justice (breaching Article 6) or, conceivably, a breach of Article 8 (the right to a private and family life) – though it is difficult to imagine circumstances in which this qualified right to privacy would ever be weighty enough to outweigh the interest in open justice. As Lord Rodger of Earlsferry JSC explained in In re Guardian News and Media Ltd:37 ‘26 In an extreme case, identification of a participant in legal proceedings, whether as a party or (more likely) as a witness, might put that person or his family in peril of their lives or safety because of what he had said about, say, some powerful criminal organisation. In that situation, he would doubtless ask for an anonymity order to help secure his rights under Articles 2 and 3 of the European Convention… 36 R (Press Association) v Cambridge Crown Court [2013] 1 WLR 1979. 37 [2010] 2 AC 697.

154

Protecting the identity of suspects and defendants 10.69

27 States are, of course, obliged by Articles 2 and 3 to have a structure of laws in place which will help to protect people from attacks on their lives or from assaults, not only by officers of the state but by other individuals. Therefore, the power of a court to make an anonymity order to protect a witness or party from a threat of violence arising out of its proceedings can be seen as part of that structure. And in an appropriate case, where threats to life or safety are involved, the right of the press to freedom of expression obviously has to yield: a newspaper does not have the right to publish information at the known potential cost of an individual being killed or maimed. In such a situation the court may make an anonymity order to protect the individual.’ 10.68 Further: ‘30 To comply with Article 8, United Kingdom law must have a remedy of this kind available for use in appropriate cases. This means that the Human Rights Act 1998 has removed any doubts that might otherwise have existed (cf Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47) about the availability of the remedy in English law. In In re S (A Child) (Identification: Restrictions on Publication) [2005] 1  AC  593, a woman had been charged with the murder of her son. The guardian of her remaining son sought an order restraining the media from identifying the woman and the victim, in order to protect the privacy of her remaining son. The House of Lords held that no such order should be made. But, speaking for all members of the Appellate Committee, Lord Steyn affirmed, at p 605, para 23, that the court did have jurisdiction to make an order of this kind and that ‘the foundation of the jurisdiction to restrain publicity in a case such as the present is now derived from Convention rights under the ECHR’. 10.69 An application for such an order should ordinarily be made to the High Court, given the findings in the Trinity Mirror case that the Crown Court does not have inherent jurisdiction to injunct publication of a person’s identity.38 The case of In Re S (a child)39 demonstrates the difficulty faced by any application for a defendant’s anonymity based on human rights grounds, but such orders are, at least conceptually, available.40 An extremely wide-ranging injunction was imposed by the High Court in respect of the new identities of Jon Venables 38 The same is very likely to be true of magistrates’ court, the powers of which are circumscribed by statute. 39 [2004] UKHL 47. 40 The case of Khuja v Times Newspapers Ltd [2017] UKSC 49 also shows how difficult such an application is in the case of a witness.

155

10.70  Anonymity and Privacy in Criminal Proceedings

and Robert Thompson to protect them from harm.41 Though the facts of their case may be considered to be exceptional, the principles and the power being exercised are at least conceptually available in other cases. 10.70 CASE SPOTLIGHT In Re S [2004] UKHL 47 This was a case in which an application was made to withhold from the public the identity of a defendant mother, on trial for murder of her son, on the basis that doing so was necessary to protect the Article 8 rights of her surviving son. An order prohibiting publication of information likely to lead to the identification of the surviving child (including the family’s surname) had originally been made under the Children and Young Persons Act 1933, s 39 (which in respect of criminal proceedings is now superseded by the provisions of the Youth Justice and Criminal Evidence Act 1999), but it had been discharged on the basis that it could not apply where the brother was not a child ‘concerned in the proceedings’ because he was not a defendant, victim, or witness. An application was therefore made to the High Court to exercise its inherent jurisdiction to prevent publication of any information which might lead to the child’s identification. The High Court did make an order restricting publication of material likely to identify the child, but did not extend that order to include publication of details relating to the parents. The order was appealed to the Court of Appeal, and then to the House of Lords. The House of Lords noted that ‘the ordinary rule is that the press, as watchdog of the public, may report everything that takes place in a criminal court… this is a strong rule. It can only be misplaced by unusual or exceptional circumstances. It is, however, not a mechanical rule. The duty of the court is to examine with care each application for a departure from the rule by reason of rights under article 8’ [18]. That consideration should take place with regard to the provisions of the HRA 1998 and not with regard to the court’s inherent jurisdiction. A balancing act between Article 10 (freedom of expression) and Article 8 (right to private life) needs to be conducted. The benefits of open justice were considered to be an important feature in the balance: ‘The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the criminal process.

41 See Venables and Thompson v News Group Newspapers [2001] Fam 430, the injunction maintained despite an application to vary in [2019] EWHC 494 (Fam).

156

Excluding the public from hearings 10.72

Moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction. Informed public debate is necessary about all such matters. Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the values of the rule of law’ [30]. That meant that, notwithstanding the Article  8 rights of the child, the balance weighed in favour of the free reporting of the identity of the defendant and the publication of photographs of her and her deceased son. The House of Lords did not place any restriction on the media in reporting those matters.

Excluding the public from hearings 10.71 Like any deviation from the open justice principle, holding a hearing in private is only justified when it is necessary, and the power to hold a hearing in private is exercised sparingly. As Lord Woolf MR explained in R v Legal Aid Board, ex p Kaim Todner:42 ‘The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of the proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely … Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it. However Parliament has recognised there are situations where interference is necessary.’ 10.72 Indeed, the court is required to exclude members of the public, and conduct a private hearing, when sitting as a youth court. It has the power to exclude members of the public, and sit in private: 42 [1999] QB 966 at 977.

157

10.73  Anonymity and Privacy in Criminal Proceedings

•

in other proceedings involving children and vulnerable witnesses;

•

in hearings relating to assisting offenders (ie offenders who are providing the police with assistance);

•

in proceedings relating to the Official Secrets Act;

•

when specific common law exceptions arise.

10.73 Applications for a hearing in private (where a discretion rather than an obligation to exclude the public exists) are governed by the Criminal Procedure Rules 2015, r 6.6.

Youth court hearings 10.74 By the Children and Young Persons Act 1933, s 47(2): ‘No person shall be present at any sitting of a youth court except: (a) members and officers of the court; (b) parties to the case before the court, their legal representatives, and witnesses and other persons directly concerned in that case; (c) bona fide representatives of newspapers or news agencies; (d) such other persons as the court may specially authorise to be present’. 10.75 The effect of that provision is that members of the public are not entitled to attend youth court hearings and, unlike other criminal proceedings, youth court hearings generally proceed in private. That presumption is so strong that it may overrule even express stipulations that certain hearings be heard in public, for example where a statute requires a particular procedure to take place in open court, if a youth court is conducting that procedure it will still sit in private to conduct the procedure.43 10.76 As to the requirement in s 47(2)(e) that ‘other persons directly concerned in that case’ may be present during youth court hearings, the High Court found 43 R  v Westminster City Council [1992] 1  WLR  253 (where the procedure was endorsing a warrant for extradition and the statute specifically said such a procedure had to be conducted in public).

158

Excluding the public from hearings 10.79

in R v Willesden Justices, ex p Brent London Borough44 that a social worker was ‘concerned in’ the proceedings and should not have been excluded from them. The requirement that persons ‘concerned in’ the proceedings be allowed to attend is subject only to the limited inherent jurisdiction of justices to control their own courts, which extends to excluding people if there is a good reason to do so (which may be, for example, if they are disrupting proceedings). In deciding that the social worker in Willesden Justices was concerned in the proceedings, the court considered it to be relevant that she would have been able to provide important assistance to the local authority (a party to the proceedings) and to its legal representative during the hearing.

Proceedings involving young people or vulnerable witnesses 10.77 By the Children and Young Persons Act 1933, s 37, the court has a discretion to exclude the public during the testimony of witnesses aged under 18 in any proceedings relating to an offence against, or conduct contrary to, decency and morality. That power does not extend to excluding bona fide members of the press, who must be allowed to remain during the giving of evidence. 10.78 The Youth Justice and Criminal Evidence Act 1999, s 25 gives the court the power, on a special measures45 application, to exclude persons of any description from the court (other than the accused, legal representatives and interpreters or intermediaries involved in the proceedings) during the evidence of a child or vulnerable adult witness46 in cases relating to a sexual offence, a Modern Slavery Act offence, or where there are reasonable grounds for believing that any person other than the accused has sought, or will seek, to intimidate the witness. An order under s 25 may provide for the exclusion from the court of members of the press although, in such circumstances, one nominated representative of the media must be permitted to remain.

Hearings relating to assisting offenders 10.79 Pursuant to the Serious Organised Crime and Police Act 2005, s 74, a court may review the sentence of a defendant who has assisted the police, or previously obtained a reduced sentence having agreed to assist the police, but who, in the 44 [1988] 2 FLR 95. 45 For more information on special measures, see para 10.39 ff. 46 Youth Justice and Criminal Evidence Act 1999, ss 16 and 17 set out witnesses in respect of whom special measures directions may be made.

159

10.80  Anonymity and Privacy in Criminal Proceedings

event, failed to provide the promised assistance.When hearing s 74 proceedings, s 75 of the same Act empowers the court to exclude the public and media from such proceedings, if the court is satisfied that such an order is: •

necessary to protect the safety of any person; and

•

in the interests of justice.

10.80 A s 75 order may not exclude: •

a member or officer of the court;

•

a party to the proceedings;

•

legal representatives for a party to the proceedings;

•

a person otherwise directly concerned with the proceedings.

10.81 Although there have been no cases on the meaning of ‘directly concerned with the proceedings’ in the context of the Serious Organised Crime and Police Act 2005, the High Court in R v Willesden Justices, ex p Brent London Borough47 considered the similar phrase ‘other persons directly concerned in that case’ in the Children and Young Persons Act 1933, s 47, as extending at least to a social worker employed by the local authority with relevant knowledge of the case and assistance to provide to the legal representative. A comparable approach might be expected to be taken under the Serious Organised Crime and Police Act.

Proceedings relating to offences under the Official Secrets Acts 10.82 By the Official Secrets Act 1920, s 8(4): ‘In addition and without prejudice to any powers which a court may possess to order the exclusion of the public from any proceedings if, in the course of proceedings before a court against any person for an offence under the principal Act [meaning the Official Secrets Act 1911] or this Act or the proceedings on appeal, or in the course of the trial of a person for felony or misdemeanour under the principal Act or this Act, application is made by the prosecution, on the ground that the publication of any evidence to be given or of any statement to be made in the course of the proceedings would be prejudicial to the national safety, that all or any portion of the public shall be excluded during any 47 [1988] 2 FLR 95.

160

Excluding the public from hearings 10.85

part of the hearing, the court may make an order to that effect, but the passing of sentence shall in any case take place in public’.

Common law powers to exclude the public 10.83 At common law, the court can exclude the public but must allow media representatives to remain when considering exhibits in obscenity trials. 10.84 Other common law exceptions to the open justice principle arise where, for example, hearing the proceedings in public would give rise to a substantial risk to national security.48 Despite being of primary importance, open justice ‘must give way to the yet more fundamental principle that the paramount object of the Court is to do justice’,49 and the common law will therefore accommodate exceptions to open justice where it is justified in the interests of justice.A Crown Court has inherent jurisdiction to exclude the public and the press where the interests of justice require it to do so.50 10.85 It must always be borne in mind that any departure from open justice must be no more than necessary.Thus, even if there are grounds for excluding the public from part (or even most) of a trial, if there are any parts of the trial or hearing (for example, the swearing-in of the jury, or the delivery of the verdicts) which can be heard in public, they should be. Other options, for example allowing certain accredited members of the press to attend the trial on terms of confidentiality which may be lifted at the end of the trial, ought also to be considered.51

48 Re A [2006] EWCA Crim 4. 49 Guardian News and Media v AB, CD [2014] All ER (D) 88 at para 5. 50 R v Wang Yam [2008] EWCA Crim 269, para 6. 51 See Guardian News and Media v Incedal [2014] EWCA Crim 1861, in particular at paras 38–42; though note the subsequent comments of a different constitution of the Court of Appeal in Guardian News and Media v Incedal [2016] EWCA Crim 11 at paras 68–69 that ‘the presence of accredited journalists during significant parts of the trial made the management of the trial very much more difficult’ and ‘a court should hesitate long and hard before it made a similar order’.

161

11 Reporting Restrictions Introduction 11.01 This chapter addresses the various reporting restrictions that may be made in criminal proceedings. It has some overlap with Chapter 10 in respect of reporting restrictions that protect against the publication of a person’s identity, but it also covers the broader reporting restrictions that may be made. The chapter first provides an introduction to reporting restrictions, then looks at automatic statutory reporting restrictions and the discretionary reporting restrictions for which a party might apply. The chapter focuses on reporting restrictions in active criminal proceedings; the relationship between press reporting and other stages of the criminal justice system (for example, police investigations, and spent convictions) is considered in Chapter 13. 11.02 The criminal courts have the power to impose various restrictions on the public reporting of hearings, or parts of hearings. Automatic statutory reporting restrictions also apply in certain circumstances. When a court is considering whether, and the extent to which, discretionary restrictions should be imposed, the starting point is always the open justice principle, as discussed at paras 10.03–10.07. In terms of the specific importance of reporting proceedings to the maintenance of open justice, a five-judge Court of Appeal in In Re Trinity Mirror plc1 observed: ‘32. In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country… From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the Court is vested with a discretion to exercise such powers on the absolute necessity for doing so in the individual case’. 11.03 Indeed, as the House of Lords observed in In Re S (a child):2 1 [2008] EWCA Crim 50. 2 [2004] UKHL 47, at para 30.

163

11.04  Reporting Restrictions

‘A criminal trial is a public event. The principle of open justice puts, as has often been said, the judge and all who participate in the trial under intense scrutiny. The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the criminal process. Moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction. Informed public debate is necessary about all such matters. Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the values of the rule of law’. 11.04 Part 6 of the Criminal Procedure Rules 2015 (as amended) addresses the courts’ power to make reporting restrictions. It does not itself contain any power to make a reporting restriction; those are to be found in the provisions addressed below. Part 6, however, addresses the procedure to be followed and the way in which a court is to exercise any power to make an order for reporting restrictions. Rule 6.2 enshrines the open justice principle: ‘6.2 (1) When exercising a power to which this Part applies, as well as furthering the overriding objective, in accordance with rule 1.3, the court must have regard to the importance of: (a) dealing with criminal cases in public; and (b) allowing a public hearing to be reported to the public’. 11.05 This chapter looks first at the circumstances in which automatic reporting restrictions arise in criminal proceedings, and then at the situations in which applications for discretionary reporting restrictions may be made.

Automatic reporting restrictions in criminal proceedings 11.06 In a number of circumstances, even where a hearing is public, automatic statutory restrictions apply to prevent reporting of the proceedings or certain aspects of the proceedings. Lawyers acting for individuals in such proceedings may want to ask the judge to remind the press and the public of the existence of automatic reporting restrictions, in order to protect against their breach, but there is no need for the court to make any directions since the restrictions apply automatically by operation of legislation. 164

Automatic reporting restrictions in criminal proceedings 11.10

11.07 Automatic reporting restrictions arise in relation to: •

victims of sexual offences and female genital mutilation;

•

young people;

•

pre-trial, preparatory and dismissal hearings;

•

allocation and sending proceedings in the magistrates’ court;

•

prosecution appeals of rulings.

11.08 It is also not permitted to publish anything which creates a substantial risk that the course of justice in active proceedings will be seriously impeded or prejudiced: to do so amounts to a contempt of court (subject to an important exception for fair, accurate and contemporaneous reports of legal proceedings held in public, which is what allows reporting of court proceedings to take place at all). The law of contempt is not covered in this book, but anyone interested in the limitations generally imposed on publications should also have regard to the contempt framework.3 The Contempt of Court Act 1981 is the key piece of legislation relating to contempt. Some provisions of that Act also create powers to impose reporting restrictions, and are therefore considered below. 11.09 Breach of an automatic reporting restriction is a criminal offence. Each of the statutes referred to below, which impose automatic reporting restrictions, also specify who will be liable for a breach of any restriction, and the penalty that may be imposed on them.

Victims of sexual offences and female genital mutilation 11.10 Pursuant to the Sexual Offences (Amendment) Act 1992, s 1, where an allegation or accusation has been made that a sexual offence has been committed, nothing relating to the person alleged to be the victim of that offence may be included in any publication if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed. A similar automatic reporting restriction applies in cases of female genital mutilation, by operation of the Serious Crime Act 2015, s 71. 3 The CPS  Legal Guidance on Contempt may be a helpful starting point for anyone interested in understanding the basics of contempt. It is available at https://www.cps.gov.uk/legal-guidance/ contempt-court-reporting-restrictions-and-restrictions-public-access-hearings. The key practitioner text is Arlidge, Eady and Smith on Contempt.

165

11.11  Reporting Restrictions

11.11 Since the effect of these restrictions is to prevent the identification of relevant people, these two prohibitions are addressed in more detail in the anonymity section of this book, at paras 10.14–10.22.

Young people 11.12 The Children and Young Persons Act 1933, s  49, prohibits the identification of anyone under the age of 18 who is ‘concerned in’ proceedings in the youth court or on appeal from the youth court. Again, because this restriction relates to a person’s identity, it is given more detailed consideration at para 10.59.

Pre-trial, preparatory and dismissal hearings 11.13 Three categories of criminal hearing are subject to automatic reporting restrictions: pre-trial hearings, preparatory hearings, and dismissal hearings.

Pre-trial hearings 11.14 Pre-trial hearings pursuant to the Criminal Procedure and Investigations Act 1996 (CPIA  1996), s  39 in the Crown Court or the Magistrates’ Court Act 1980, s 8A, in the magistrates’ court, may take place in relation to any pending trial, and involve rulings on the admissibility of evidence or questions of law arising in the trial. By the CPIA  1996, s  41 and the Magistrates’ Court Act 1980, s 8C, there shall be no reporting of rulings made at pre-trial hearings, or of applications relating to such rulings, until the trial has been concluded.These restrictions are to prevent any risk of the fairness of the trial being undermined by publication of a judge’s findings on points of law influencing a jury or bench’s verdict. Once the trial is concluded, the reporting restrictions automatically lift. 11.15 The court has a power to lift the automatic restrictions at an earlier stage of proceedings if satisfied that it is in the interests of justice to do so.That assessment must only be made having heard representations from the accused (and those representations themselves are subject to the automatic reporting restrictions, unless and until they are lifted). 166

Automatic reporting restrictions in criminal proceedings 11.19

Preparatory hearings 11.16 By the CPIA 1996, s 29, a judge in the Crown Court has the power to order a preparatory hearing in cases of such complexity or seriousness, or where the trial is likely to be of such a length, that substantial benefits are likely to accrue from a hearing taking place before the jury is sworn. The hearing is held in order to: •

identify issues which are likely to be material to the determinations and findings which are likely to be required during the trial;

•

assist the jury’s comprehension of the issues and expedite the proceedings;

•

hear any prosecution application for the trial to be heard without a jury;

•

assist the judge’s management of the trial;

•

consider questions as to the severance or joinder of the charges.

11.17 By the CPIA 1996, s 37, preparatory hearings in the Crown Court are subject to automatic reporting restrictions. Those restrictions also apply to applications for leave to appeal from a preparatory hearing, and any resulting appeal from rulings made at the preparatory hearing. 11.18 As with preliminary hearings, the courts have a power to lift the automatic restriction entirely or to a specified extent if satisfied that it is in the interests of justice to do so. If the accused objects to the lifting of the restriction (or if at least one of the accused objects, where there are co-defendants), the court must not order that the restrictions be lifted until they have heard from the accused. Even if the reporting restriction is lifted in the face of the accused’s objections, the objections themselves may not be reported. 11.19 The automatic restriction does not apply to the reporting of any of the following matters in relation to preparatory hearings, which may be published: •

the identity of the court and the name of the judge;

•

the names, ages, home addresses and occupations of the accused and witnesses;

•

the offence or offences, or a summary of them, with which the accused is charged;

•

the names of counsel and solicitors in the proceedings; 167

11.20  Reporting Restrictions

•

where the proceedings are adjourned, the date and place to which they are adjourned;

•

any arrangements as to bail;

•

whether the accused was, or any of the accused were, in receipt of legal aid.

Dismissal hearings 11.20 Automatic reporting restrictions apply to any unsuccessful application by a defendant for the charges against them to be dismissed. The rationale behind the restriction, which is imposed by the Crime and Disorder Act 1998, Sch 3, para  3, derives from the test that the judge applies when considering an application to dismiss: whether there is sufficient evidence for the defendant to be properly convicted. It would be capable of undermining the fairness of a trial if jury members knew that there had been an unsuccessful dismissal application, because their decision might be influenced by knowing that a judge considering the evidence had concluded that it was sufficient to ground a proper conviction. 11.21 That rationale explains the exceptions to the automatic reporting restriction: dismissal proceedings may be reported if they are successful; they may also be reported once the trials of any defendants have concluded. Certain details, such as the names of the defendants and the name of the court, may always be reported.4 The judge also retains a residual discretion to lift the automatic reporting restriction if, having heard representations from the accused, she considers it to be in the interests of justice to do so.

Allocation or sending proceedings in the magistrates’ court 11.22 The Crime and Disorder Act 1998, s 52A prohibits the reporting of allocation or sending proceedings in the magistrates’ court. ‘Allocation or sending proceedings’ refers to: •

any proceedings in the magistrates’ court at which matters are considered under any of the following provisions:

4 See the Crime and Disorder Act 1998, Sch 3, para 3(8) for a full list of the information which may at all times be reported.

168

Discretionary reporting restrictions in criminal proceedings 11.25

(i) the Magistrates’ Court 1980, ss  19–23 (ie  where the court is considering whether to retain jurisdiction or whether the case is more suitable for trial in the Crown Court); (ii) the Crime and Disorder Act 1998, ss 51, 51A or 52 (ie where the circumstances of the case are such that the magistrates’ court is required to send the case to the Crown Court); •

any proceedings in the magistrates’ court before the court proceeds to consider any of the above matters; and

•

any proceedings in the magistrates’ court at which an application under the Magistrates Court Act 1980, s 25(2) is considered (ie an application by the prosecution for a summary trial to be tried on indictment).

Prosecution appeals 11.23 Where a judge makes a ruling in relation to a matter for trial on indictment, and the prosecution appeals or notifies the court of its intention to appeal that ruling, by the Criminal Justice Act 2003, s 71 nothing relating to the appeal (and associated matters) shall be reported.The judge retains the discretion to lift parts of the automatic reporting restriction, and the restriction is subject to the usual exceptions that, for example, the identity of the court, the judge and the defendants may be reported.5

Discretionary reporting restrictions in criminal proceedings 11.24 Alongside the automatic restrictions that apply, the courts have various powers to impose discretionary reporting restrictions. They can, for example, prevent reporting of a particular part of proceedings, or delay reporting until the proceedings are concluded or until associated proceedings have taken place. 11.25 The test for granting a discretionary reporting restriction is whether it is ‘necessary’ (and no more than necessary) in the interests of justice.6 The burden of proving that any proposed reporting restriction is necessary falls on the party applying for a restriction. In some circumstances – the automatic statutory 5 Section 71(8) contains a full list of the matters which may be reported despite the statutory reporting restriction. 6 Attorney General v Leveller Magazine Ltd [1979] AC 440.

169

11.26  Reporting Restrictions

reporting restrictions, as above – Parliament has deemed a restriction to be necessary and has legislated accordingly. But in most cases, where there is a discretionary power to impose a restriction, it will be necessary for the party seeking it to justify it. 11.26 An application for discretionary reporting restrictions will normally need to be made by the party seeking it7 (although – unless there is a specific statutory restriction – a court may impose restrictions of its own initiative: see the Criminal Procedure Rules 2015, r 6.4(2)(b)). Rule 6.4 sets out the procedure for making an application for a reporting restriction in the course of criminal proceedings. As above, the test for granting a discretionary reporting restriction is that it is ‘necessary’, and the burden of establishing that it is necessary rests on the party making the application. 11.27 Where a discretionary restriction has been imposed, other parties (often the media; they do not need to have been parties to the proceedings prior to the imposition of the reporting restrictions) may apply to the court for the order to be varied or lifted. If possible, it will ordinarily be good practice for any party intending to apply for reporting restrictions to put the media on notice (generally, by making contact with the Press Association) so that they can be represented at the hearing of the application and raise any objections at that stage. 11.28 The key discretionary restrictions addressed below are: •

orders to postpone reporting;

•

preventing reporting of matters withheld from the public during a hearing;

•

orders to prevent the identification of children;

•

the power to restrict reporting about adult witnesses;

•

restrictions on reporting of matters affecting retrials;

•

restrictions on reporting of derogatory remarks made in mitigation.

Postponing reporting of proceedings 11.29 A  court may postpone the reporting of proceedings pursuant to the Contempt of Court Act 1981, s 4(2) if it appears to be necessary for avoiding 7 Even if they are not a party to the proceedings, for example if they are a witness seeking reporting restrictions, as occurred in Khuja v Times Newspapers [2017] UKSC 49.

170

Discretionary reporting restrictions in criminal proceedings 11.32

a substantial risk of prejudice to the administration of justice, either in the proceedings in which the application is made, or in other proceedings pending or imminent.8 A  s  4(2) order may be made in relation to the reporting of all or part of any proceedings, and the period of postponement may be for as a long as the court thinks necessary for the purpose of avoiding the prejudice that would otherwise arise. Section 4(2) orders are ordinarily imposed until the conclusion of whichever proceedings would be threatened by earlier reporting, at which point publication of reports relating to the proceedings is once again permitted. 11.30 The test for imposing a s 4(2) order is in three stages: •

Would fair and accurate contemporaneous reporting give rise to a substantial risk of prejudice to the administration of justice?

•

Would a s  4(2) order remove that risk (and are there no lesser options available to remove the risk)?

•

Does the balance between the importance of the administration of justice and the importance of open justice weigh in favour of making a s 4(2) order?

11.31 Only if the answer to all three stages is yes will a s  4(2) order be made. An applicant for a s  4(2) order should address each of those questions in their application.

Preventing reporting of withheld matters 11.32 Pursuant to the Contempt of Court Act 1981, s  11, if a court has allowed a name or any other matter to be withheld from the public (having power to do so), it may also make a s  11 order prohibiting the publication of that name or matter in connection with the proceedings. A s 11 order may only be made to the extent necessary to protect the purpose for which the original order withholding information was made. For example, if a court has allowed a witness in a blackmail trial not to identify themselves in court because of a real risk to them, the court may make a simultaneous s  11 order to prevent the publication of the witness’s name, in order to ensure that the purpose of protecting the witness is achieved. 8 There is no power to make a s 4(2) order to protect the interests of people involved in the proceedings – the power is explicitly to protect the administration of justice itself: Re Belfast Telegraph Newspapers Ltd’s Application [1997] NI 309.

171

11.33  Reporting Restrictions

11.33 Section 11 does not itself provide a power to withhold a matter from the public9 – the power must exist from some other source, and have been exercised by the court, whereupon s 11 then serves to prohibit publication of the alreadywithheld matter. If a matter cannot otherwise be withheld from the public, s 11 does not apply and cannot be invoked to restrict reporting. In addition, if a name or matter is referred to in open court, a s 11 order cannot normally be made to prevent reporting of it.10 For that reason, applications for a s 11 order are heard in private, so as not to undermine any order which is subsequently made. 11.34 If, however, a withheld matter is inadvertently stated or referred to in open court, there is jurisdiction ‘to correct mishaps’, so that a s 11 order may nevertheless apply to the matter stated: see Times Newspapers Ltd v Abdulaziz.11 In that case, a judge gave a brief explanation in open court as to why he had decided that certain evidence should be given in private. The way in which he explained it (in particular, the wording he used) amounted to a ‘mishap of a serious nature’ because publication of that wording would undermine the purpose of the order that had been made for the evidence to be heard in private. The Court of Appeal concluded that ‘the mere fact that something has been said in open court is not conclusive and fatal to any restraint’. In circumstances where the judge had made an order to withhold a matter, he had the power to make that order, and the purpose of the order would be frustrated if the matter were reported, s 11 could operate to prevent reporting even though the wording was used in open court.

Preventing identification of under-18s 11.35 The Youth Justice and Criminal Evidence Act 1999, s 45 provides the criminal courts with the power, outside of youth court proceedings (in relation to which reporting is automatically restricted by virtue of the Children and Young Persons Act 1933, s  4912) to protect the identity of young people concerned in criminal proceedings. The courts may make an order pursuant to s  45(3) to prevent the publication of anything likely to lead to the identification of any person concerned in the proceedings while they are under the age of 18. A s 45(3) order will thus cease to have effect when the 9 R (on the application of Trinity Mirror plc) v Croydon Crown Court [2008] EWCA Crim 50. 10 Matters, including evidence, referred to in open court may generally be made available to the public and publicly reported: R (on the application of Guardian News and Media) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420. 11 [2016] EWCA Crim 887. 12 See para 10.59 ff.

172

Discretionary reporting restrictions in criminal proceedings 11.40

witness or other person ‘concerned in’ the proceedings to whom the order relates turns 18.13 11.36 When deciding whether to make a s 45(3) order, the court shall have regard to the welfare of the person to whom the order would relate. 11.37 The category of persons in relation to whom a s 45(3) order may be made is limited: by s 45(7), such an order may only be made in relation to a person ‘against or in respect of whom the proceedings are taken, or who is a witness in the proceedings’. That tends to be interpreted as applying to defendants, victims, and witnesses. 11.38 The court, or an appellate court, may make a direction to dispense to any extent with a s 45(3) order if: •

it is satisfied that it is in the interests of justice to do so; or

•

it is satisfied that the effect of the order imposes a substantial and unreasonable restriction on the reporting of the proceedings and it is in the public interest to remove or relax the restriction. That shall not be done purely on the basis that the proceedings have concluded or been abandoned.

11.39 When deciding whether to remove or relax a s 45(3) order, the court must have regard to the welfare of the person to whom the order relates.

Imposing lifelong reporting restrictions relating to young people 11.40 Pursuant to the Youth Justice and Criminal Evidence Act 1999, s  45A, the court has the power to provide for lifelong anonymity for youth witnesses and youth victims of criminal offences. The s 45A power does not apply to youth defendants.

13 Depending on the circumstances, there may be a different basis for restricting publication of a defendant’s identity once he turns 18: see, for example, Venables and Thompson v NGN [2001] Fam 430, where the defendants who had been protected by an order under the Children and Young Persons Act 1933, s 39 (the precursor provision to the Youth Justice and Criminal Evidence Act, s 45) were latterly protected by an injunction issued by the High Court under the Human Rights Act 1998.

173

11.41  Reporting Restrictions

11.41 The court may only impose a reporting restriction under s 45A if it is satisfied that the quality of evidence given by the witness, or their level of co-operation to any party in the proceedings, is likely to be diminished by reason of fear or distress connected with being identified by members of the public as a person concerned in the proceedings. 11.42 Section 45A(6) sets out the factual matters that the court must take into consideration in a s 45A application. On a principled basis, pursuant to s 45A(8), it must also take into account: •

the welfare of the person in respect of whom the reporting restriction would be imposed;

•

whether it would be in the public interest to make a s 45A order; and

•

the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of proceedings.

11.43 Section 45A provides greater protection for a young person concerned in criminal proceedings, since the restriction on identifying them subsists beyond their 18th birthday (where an order under s 45 automatically lapses when they turn 18), but it therefore represents a greater departure from open justice and will require robust justification. 11.44 When applying for an order under s  45A, the applicant must explain why such an order is necessary, by reference to the relevant factors contained in the legislation, and how the order will improve the quality of the witness’s evidence.

Restricting reporting about adult witnesses 11.45 The Youth Justice and Criminal Evidence Act 1999, s 46 provides that, on an application by any party to the proceedings, a criminal court may impose a lifelong reporting restriction relating to an adult witness if: •

the witness is eligible for protection; and

•

the restriction is likely to improve the quality of their evidence or their co-operation with a party in the case. 174

Discretionary reporting restrictions in criminal proceedings 11.49

11.46 A witness is eligible for protection in the same circumstances as arise in s 45A, ie their evidence or co-operation is likely to be diminished by reason of fear or distress connected with being identified by members of the public as a person concerned in the proceedings. As in s 45A, an order made under s 46 subsists for the lifetime of the person in respect of whom it is made, and prevents the publication of anything likely to identify them as being a person concerned in the proceedings. 11.47 The court must consider specified factual matters, along with whether the order would be in the interests of justice, and the public interest in avoiding substantial and unreasonable restrictions on the reporting of proceedings. The question of welfare, which is relevant to a s 45A order, does not arise in relation to adults and s 46 directions.

Reporting of matters affecting retrials 11.48 By the Criminal Justice Act 2003, s 82, the Court of Appeal has the power to impose a reporting restriction on any matter which, if included in a publication, would give rise to a substantial risk of prejudice to the administration of justice in a retrial – where the retrial relates to an acquitted person whose acquittal has been quashed and their retrial ordered pursuant to the Criminal Justice Act 2003, s 77.

Postponing the reporting of derogatory remarks made in mitigation 11.49 By the CPIA 1996, s 58, the courts may postpone the reporting of derogatory remarks about named or identified persons made by a defendant in mitigation. The court may make an order under s  58 if it has substantial grounds for believing that: •

the assertion is derogatory (for example, because it suggests the person’s conduct is or has been criminal, immoral or improper); and

•

the assertion is false or the facts asserted are irrelevant to the sentence; and

•

the remarks were not made during the trial or any other proceedings relating to the offence. 175

11.50  Reporting Restrictions

11.50 If those requirements are satisfied, the court may order that the remarks may not be reported until 12 months have passed since the day on which the remarks were made. 11.51 A s 58 order may be made after sentencing, but only if it is made as soon as reasonably practicable after sentencing. Usually, it will be made at any time before the court has passed sentence.

Appeals against discretionary reporting restrictions 11.52 The Criminal Justice Act 1988, s  159 allows any person aggrieved (which includes media organisations) to appeal to the Court of Appeal against the imposition of a reporting restriction.

Special measures 11.53 Since discretionary reporting restrictions must only be imposed if they are necessary, before making any such order the court must consider whether a lesser order, representing a lesser deviation from the open justice principle, may protect the relevant interest instead. In general, this will mean that the court will need to consider whether any of the special measures available to it might achieve the desired end, instead of reporting restrictions. 11.54 The special measures that a court can direct are set out (non-exhaustively) in the Youth Justice and Criminal Evidence Act 1999. They are addressed in more detail at para 10.39 ff.

Reporting criminal convictions and investigations 11.55 Alongside reporting restrictions relating to ongoing and anticipated criminal proceedings, the law of privacy and data protection may also operate to limit what can properly be reported about convictions and investigations. This is an area in which significant developments have taken place over the last few years. It is considered in detail in Chapters 12 and 13. 176

12 The Publication of Information about Offending and Convictions – General Principles of the Law of Privacy and Data Protection Introduction 12.01 This chapter addresses the general principles of law relating to the publication of matters about a person’s suspected offending or convictions. It looks first at the principles of privacy law, and then at the principles of data protection law, and sets out the relevant considerations for any individual considering a claim under for breaches of privacy or data protection rights. 12.02 The availability online of information about suspected offences, criminal proceedings, acquittals and convictions may have a very serious impact upon a person’s life. If information about such matters is accessible online this is likely to undermine steps taken by an individual to, for example, challenge the content of an Enhanced Criminal Records Certificate (ECRC) before it is disclosed to a prospective employer. The law of privacy and data protection may enable individuals to take steps to challenge the publication of information about them. It is therefore essential, for a holistic approach that seeks to limit or prevent the publication of information which reveals details of an individual’s actual or suspected criminal past, to consider not only public law challenges to Criminal Records Certificates (CRCs) but also potential private law claims. 12.03 This chapter, along with Chapters 13 and 14, addresses the private law claims and remedies relevant to the disclosure or publication of these types of information. This chapter focuses on the general principles of the law of privacy and data protection as they apply to the communication of information 177

12.04  General Principles of the Law of Privacy and Data Protection

to the world at large.1 These principles are relevant to publications by, among others, mainstream media organisations, bloggers, ‘citizen journalists’, and even the police. Many of the principles also apply to disclosures made to individuals or small groups, as well as to unauthorised access to private information and personal data. Chapter 13 considers the application of these principles to the publication of information concerning: (i) arrests and police investigations; (ii) court proceedings and convictions; and (iii) spent convictions. Chapter 14 looks at the right to erasure of personal data. 12.04 While the focus of these three chapters is on the law of privacy and data protection, it should be noted that the law of defamation, malicious falsehood, breach of confidence and contempt may also be relevant in respect of the publication of the types of information with which this chapter is concerned.

Misuse of private information 12.05 The tort of misuse of private information (‘a privacy claim’) has its origins in the ‘absorption’ of Articles 8 and 10 of the European Convention on Human Rights (ECHR) by the long-established remedy of breach of confidence. This cause of action provides protection not only in relation to the misuse of ‘private’ information but also for intrusion into or the invasion of private and family lives arising from the use of information. It is also now well established that the ‘protection of reputation is part of the function of the law of privacy’ on the basis that reputational harm may arise from the publication of private information.2 12.06 In order to establish a privacy claim it is necessary to show two things: •

that the claimant has a reasonable expectation of privacy in respect of the relevant information (ie whether the information that has been disclosed or misused is private information); if so

•

that, in all the circumstances, the Article 8 rights of the claimant outweigh the rights of the publisher and recipients of the information under Article 10 (freedom of expression) and/or other countervailing ECHR rights, on the other (‘the balancing exercise’).

1 For more detailed analysis, the following texts are recommended: N Moreham and M Warby, The Law of Privacy and Media 3rd edn (Oxford University Press, 2015); H Tomlinson and G Vassall-Adams (eds), Online Publication Claims (Matrix, 2017). 2 Sir Cliff Richard v BBC [2018] EWHC 1837 (Ch), at [345], in which a significant component of the general damages awarded was to compensate for damage to the claimant’s reputation.

178

Misuse of private information 12.08

In many cases there is an overlap between the considerations relevant to each of these stages. 12.07 Historically, defendants to privacy claims have tended to be news media publishers, which means that most privacy claims have been defended on the basis of ECHR, Article 10 (the right to freedom of expression). It is for this reason that the balancing exercise has generally been between Article  8 and Article 10. However, privacy claims can also be brought against other entities, including public authorities such as the police, who might rely on different justifications for an intrusion into a person’s privacy. For example, ECHR, Article 8(2) allows for interferences with a person’s private life ‘in the interests of national security’, ‘for the prevention of disorder or crime’ or ‘for the protection of the rights and freedoms of others’. Such grounds may be relied on to defeat a privacy claim.

Reasonable expectation of privacy 12.08 The ‘reasonable expectation of privacy’ is the test for whether or not Article 8 is engaged in respect of the misuse of information.3 This requires an assessment of ‘what a reasonable person of ordinary sensibilities would feel if s/he were placed in the same position as the claimant and faced with the same publicity’4. This is an objective test; the court is not concerned with the subjective expectations of the person concerned.5 The evaluation of whether a claimant has a reasonable expectation of privacy in relation to the information in question or, more specifically, a particular misuse of that information, involves looking at all of the circumstances of the case. Relevant circumstances include but are not limited to: ‘[T]he [i] attributes of the claimant, [ii] the nature of the activity in which the claimant was engaged, [iii] the place at which it was happening, [iv] the nature and purpose of the intrusion, [v] the absence of consent and whether it was known or could be inferred, [vi] the effect on the claimant and [vii] the circumstances in which and the purposes for which the information came into the hands of the publisher’ (numbering added).6

3 In the matter of an application by JR38 for Judicial Review (Northern Ireland) [2015] UKSC 42, at [87]–[90], [97]–[98]; R (on the application of Catt) v Commissioner of Police of the Metropolis [2015] UKSC 9, at [4]. 4 Murray v Express Newspapers [2008] EWCA Civ 446, at [35]. 5 JR38, at [109]. 6 Murray, at [36].

179

12.09  General Principles of the Law of Privacy and Data Protection

The balancing exercise 12.09 The balancing of Article 8 and Article 10 (or other) rights involves the court undertaking an objective assessment. Neither the right to privacy nor the right to freedom of expression has ‘presumptive priority’: the exercise begins with a level playing field. The justification for an interference with each right has to be considered, with a proportionality test applied in respect of the interference with each right.7 12.10 The Grand Chamber of the European Court of Human Rights has set out general criteria that apply when balancing Articles 8 and 10 (known as the Axel Springer criteria).8 Those criteria are: •

the contribution made by the article/material concerned to a ‘debate of general interest’ (this is often regarded as the most significant consideration);

•

how well known the claimant happens to be;

•

the prior conduct of the claimant;

•

the method by which the information concerned was obtained by the publisher and its veracity; and

•

the content, form and consequences of the publication.

Defendants 12.11 A privacy claim may be brought against anyone who publishes or otherwise misuses private information. This includes not only traditional media organisations but also, for example, the police and people posting on social media. In some circumstances it may also be relied on against search engine operators like Google (in relation to search results they have refused to remove or delist). 12.12 In addition, in some circumstances it may be possible to bring a privacy claim against a social media platform, such as Facebook,Twitter, Instagram or Blogger (known as ‘intermediaries’), in respect of material posted by users. The starting

7 Re S (a child) [2004] UKHL 47, at [17]. 8 Axel Springer v Germany (2012) 55 EHRR 6, at [89]–[95].

180

Misuse of private information 12.14

point, however, is that ‘hosts’9 of content have a complete defence (so far as damages claims are concerned) in respect of privacy-violating material posted by users.10 They are not liable for the hosting/storage of such material provided that they do not: ‘have actual knowledge of [the] information [in question] and … [are] not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information’ (‘the Hosting Defence’)11. This defence is not available to the creators of the content in question. The Hosting Defence is one of a series of so-called ‘safe harbour defences’ available to intermediaries under EU law. A person concerned about unlawful material posted on social media platforms can give the intermediary notice of this through its online forms or by way of a letter.This will fix the intermediary with ‘knowledge’ of the material in question. Assuming that the material breaches privacy rights, there are likely to be complex questions of fact as to whether the intermediary acted expeditiously to remove/disable access to it.12 12.13 The Hosting Defence does not prevent a person from seeking an injunction from the High Court requiring the removal of particular material from a social media platform.

Remedies 12.14 In most privacy cases, the primary remedy sought will be an injunction requiring the removal or blocking of the material and preventing it from being published more widely. Damages can be recovered not only for distress but also for infringement of privacy rights themselves, that is the loss of control over private information (regardless of whether or not a claimant can show 9 Hosting means the ‘storage of information provided by a recipient of the service’. Facebook is included in this definition: see CG v Facebook Ireland [2016] NICA 54, at [53]. There is no specific authority in relation to Twitter, but it is likely that it also falls into this category. 10 E-Commerce (EC  Directive) Regulations 2002, reg  19. These regulations transpose into UK law Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’). 11 E-Commerce (EC  Directive) Regulations 2002, reg  19. Regulation 22 sets out the requirements of notice. 12 Intermediary liability is a complex area of law; reference may be made to H Tomlinson and G VassallAdams (eds), Online Publication Claims Chapter 7; and J  Riordan, The Liability of Internet Intermediaries (Oxford University Press, 2017).

181

12.15  General Principles of the Law of Privacy and Data Protection

that this caused distress).13 Save in exceptional cases, such as phone hacking and Cliff Richard’s case against the BBC, damages in privacy cases remain relatively low. There is no judicial (or other) guidance concerning the levels or bands of damages awards in privacy cases – it is necessary to look to the case law (which remains very limited14) to obtain an indication of the level of damages awards.15 12.15 The limitation period for a privacy claim is six years. If the information in question continues to be published (ie made available online) limitation is very unlikely to be an issue so far as claims for injunctions or general damages are concerned. In relation to the police and other public authorities, a privacy claim is an alternative to a claim under the Human Rights Act 1998 (HRA 1998) and offers the advantages of a longer limitation period16 and potentially higher damages awards.

Data protection law 12.16 This text reflects data protection law as it stands in June 2019 under the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA 2018). It should be emphasised that the Data Protection Act 1998 (DPA 1998), which transposed the European Data Protection Directive 1995 (the 1995 Directive) into UK law, remains relevant if a (potential) claim concerns the processing of data prior to 25 May 2018. In some cases, it may be necessary to rely on both regimes.17 There is not yet any post-May 2018 case law or guidance (at the UK or at the European level) on the aspects of the GDPR with which this chapter is concerned.18 A number of important decisions from the European Court of Justice (CJEU) in data protection cases under the 1995 Directive are currently awaited,19 and should be taken into account by anyone seeking to bring a data protection claim. The CJEU’s interpretations of terms and provisions under the 1995 Directive will provide importance guidance on the operation of the similar provisions of the GDPR. 13 Gulati v MGN [2015] EWHC 1482 (Ch), at [132], [136], [143]–[144]; upheld by the Court of Appeal in Representative Claimants v MGN [2015] EWCA Civ 1291. 14 This primarily because the vast majority of privacy claims settle before quantum is determined by a court, but also because many privacy and data protection claims are litigated in the County Court. 15 Mann J’s judgment in Richard v BBC contains some guidance as to the relevant factors (see para [350]); see also TLT v Secretary of State for the Home Department [2016] EWHC 2217 (QB); Ali & Aslam v Channel 5 [2018] EWHC 298 (Ch). 16 A claim under the HRA 1998 must be brought within a year: HRA 1998, s 7(5). 17 The DPA 2018, Sch 20 deals with transitional provisions and should be consulted in relation to any claim concerning data processing prior to 25 May 2018. 18 The public law claim of R (on the application of El-Gizouli) v Secretary of State for the Home Department [2019] EWHC 60 (Admin) touches on the DPA 2018, Pt 3. 19 These cases are identified in Chapter 14.

182

Data protection law 12.19

12.17 Personal data20 is defined in very broad terms to include ‘any information relating to an identified or identifiable natural person’.21 Subject to what is said below in relation to domestic and household purposes (see para  12.19), data protection law applies to the use of such information provided that this is done wholly or partly by automated means or where data form part (or are intended to form part) of a ‘relevant filing system’.22 ‘Processing’ is an extremely wide concept, covering ‘any operation or set of operations which is performed on personal data’, including collection, recording, storage, use, disclosure by transmission, dissemination or otherwise making such data available. A  data controller is essentially any person or entity which ‘determines the purposes and means of the processing’ of personal data.23 Two or more bodies may be joint data controllers in respect of the same personal data. 12.18 Most of the personal data with which this book is concerned is likely to constitute ‘personal data relating to criminal convictions and offences’ for the purposes of Article  10 of the GPDR. Such data, which will be referred to throughout this chapter as ‘Offences and Convictions data’, is defined in the DPA 2018 as: ‘data relating to (a) the alleged commission of offences by the data subject, or (b) proceedings for an offence committed or alleged to have been committed by the data subject or the disposal of such proceedings, including sentencing’.24 12.19 The fact that data falls into this category is important because such data can only be processed lawfully under strict conditions.The definition does not, however, apply where the police or other bodies in the criminal justice system process such data for law enforcement purposes – it is treated as standard personal data in that context.25

20 For the purposes of consistency, this chapter uses the singular when referring to ‘personal data’. 21 GDPR, Article 4(1) further defines what is meant by ‘identifiable’. Reference may also be made to the Information Commissioner’s Officer’s guidance on ‘What is Personal Data?’, at https://ico.org.uk/fororganisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/what-ispersonal-data/. 22 GDPR, Article 4(2) and (6); Article 2(1); DPA 2018, s 3. 23 GDPR, Article 4(7). 24 DPA 2018, s 11(2). 25 It is not included within the meaning of ‘sensitive processing’ in the DPA 2018, s 35(8).

183

12.20  General Principles of the Law of Privacy and Data Protection

Determining which data protection rules apply 12.20 The applicable data protection rules depend on who is processing the data and for what purposes. Assuming that the personal data being processed is Offences and Convictions data, there are three possibilities as to the relevant legal framework: (1) in respect of most data processing the applicable legal framework is to be found primarily in the GDPR and in the DPA 2018, Sch 1. This applies to data processed by media organisations and publishers, as well as ‘citizen journalists’, subject to what is said in subparagraph (3) below; (2) where personal data is processed by police, investigatory bodies and other agencies within the criminal justice system26 for law enforcement purposes27 or any other data controller which has statutory functions for any of the law enforcement purposes, processing falls within the DPA  2018, Part 3.28 The GDPR does not apply to such processing;29 instead, the principles with which the police and other such bodies must comply are contained in the DPA 2018, Part 3, Chapter 2; (3) where personal data is processed ‘in the course of a purely personal or household activity’ (which includes social networking and online activity undertaken within the context of such activities) and ‘with no connection to a professional or commercial activity’ the GDPR does not apply.30 Neither does the DPA 2018. Case law under the domestic purposes exemption in the 1995 Directive31 (which is broadly equivalent to Article 2(2) of the GDPR) makes it clear that data processing is unlikely to fall into this category where personal data is processed in such a way as to permit access to an indefinite number of people (ie freely available on the internet)32 – hence citizen journalism is likely to fall within the category in (1) above. Even if data processing does fall into this category, a claim might nevertheless be brought against the person concerned for the tort of misuse of private information.

26 There is a full list of such bodies in the DPA 2018, Sch 7. Note that not all processing by a data controller listed in the DPA 2018, Sch 7 will amount to law enforcement processing (see the Explanatory Notes to the DPA 2018, para 175). 27 This is defined broadly to include processing for ‘the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security’ (DPA 2018, s 31). 28 This transposes the Law Enforcement Directive into UK law. 29 GDPR, Article 2(2). 30 GDPR, Article 2(2) and Recital 18. 31 Article 3(2) of which provided that the Directive did not apply to the processing of personal data by a natural person in the course of a ‘purely personal or household activity’. 32 C-345/17 Buivids (C:2019:122) at [43] (and the authorities cited therein, including C-212/13 Ryneš v Úr˘ad pro ochranu osobních údaju˚ (C:2014:2072  C:2014:2428)). Buivids concerned the filming and publication online by a ‘citizen journalist’ of footage of police officers.

184

Data protection law 12.21

Data protection principles and rights 12.21 In the context of the areas covered by this book, the key data protection principles and grounds of potential challenge which are likely to be of greatest relevance are as follows: •

because most relevant data is likely to be Offences and Convictions data, in order for processing on or after 25 May 2018 to be lawful either it must satisfy one or more of the conditions in the DPA 2018, Sch 1, Part 1, 2 or 333 or the data controller must be able to rely on a relevant exemption in the DPA  2018, Schs 2 or 3. If not, the processing will amount to a breach of the GDPR. The conditions in the DPA 2018, Sch 1 which may be relevant will vary depending on the context but are likely to include: (i) processing which is necessary for the purposes of the prevention or detection of unlawful acts and for reasons of substantial public interest, and which must be carried out without the consent of the data subject;34 and (ii) processing which relates to personal data which is manifestly made public by the data subject (see the discussion at paras 13.12–13.13).35 So far as the processing of Offences and Convictions data is concerned, the only relevant exemption is the journalistic, artistic and literary purposes exemption (as to which see paras 12.24–12.27). It is notable that the crime and taxation exemption does not apply so as to exempt data controllers from complying with Article 10 of the GDPR for Offences and Convictions data.36 If the processing is for law enforcement purposes, and thus falls under the DPA 2018, Pt 3 (and not the GDPR), such processing must satisfy the conditions set out in the DPA 2018, s 35;

•

data controllers must ensure that the personal data that they process is accurate and, where necessary, kept up to date.37 Inaccurate personal data is defined in the DPA 2018 as being data which is ‘incorrect or misleading as to any matter of fact’.38 When assessing (in)accuracy, the words in question fall to be considered in context, having regard to the text of a publication taken as a whole, and with a natural and ordinary meaning being attributed to the words in question – the principles applicable to the ascertainment of meaning in libel law have on several occasions been held to be relevant in data protection cases;39 and

33 DPA 2018, s 10(5). 34 DPA 2018, Sch 1, para 10. 35 DPA  2018, Sch  1, para  32. In addition to satisfying a condition in Parts 1, 2 or 3 of Sch  1, the data controller must also have in place an ‘appropriate policy document’, as to which see Sch 1, para 39. 36 GDPR, Article 10 is not listed as one of the relevant GDPR provisions in the DPA 2018, Sch 2, Pt 1, para 1, which part contains the crime and taxation exemption. 37 GDPR, Article 5(1)(d); see also the DPA 2018, s 38. 38 DPA 2018, s 205(1). 39 NT1 & NT2 v Google LLC [2018] EWHC 799 (QB), at [82]–[83]; and Rudd v Bridle [2019] EWHC 893 (QB), at [68]: these cases were decided under the DPA 1998 but the same approach is likely to apply.

185

12.22  General Principles of the Law of Privacy and Data Protection

•

personal data should not be kept in a form which permits identification for longer than is necessary for the purposes for which the personal data is processed.40

12.22 The GDPR provides a wide range of data subject rights, including: •

the right to make subject access requests (Article 15);

•

the right to have rectified inaccurate personal data (Article 16);

•

the right to erasure, which is considered in detail in Chapter 14 (Article 17);

•

the right to object to processing undertaken on certain grounds on the basis of interests, rights, freedoms of the data subject (Article 21); and

•

the right to a restriction on the processing of particular personal data where, among other matters, the accuracy of the data is contested or the data subject has exercised their right to object to processing and pending  an assessment of where the balance of legitimate interests lie (Article 18).

The DPA 2018, Part 3, Chapter 3 contains similar, albeit more limited, rights which apply to data that is processed for law enforcement purposes.

Defendants 12.23 Except for cases where data processing is for a purely personal or household activity, data protection rights can be asserted against any data controller. 12.24 Social media platforms such as Facebook, Instagram and Twitter are, in principle, data controllers in respect of data posted by their users (notwithstanding the fact that users may also be data controllers in respect of that data). They may, however, be able to rely on the Hosting Defence (see paras 12.11–12.12) in respect of damages claims until such as time as they have knowledge of the personal data said to be being processed unlawfully and fail to take steps to block or remove it.41 They may also be ordered by an injunction to remove the offending material.

40 GDPR, Article 5(1)(e); if the data is being processed for law enforcement purposes, the DPA 2018, s 39 applies. 41 See GDPR, Article 2(4).

186

Data protection law 12.27

The journalistic purposes exemption 12.25 The DPA  2018, Sch  2, para  26 contains an exemption for data which is processed for ‘journalistic, academic, artistic and literary purposes’ (‘the journalistic purposes exemption’). This exemption is based on Article 85 of the GDPR which requires that member states reconcile the right to protection of personal data under the GDPR with the right to the freedom of expression and information. It exempts data controllers from compliance with a range of GDPR requirements and rights (including the requirement when processing Offences and Convictions data to comply with a condition in the DPA 2018, Sch  1, as well as the rights to object and erasure: see paras 14.03–14.05)42 provided that certain conditions are satisfied: •

the processing must be carried out with a view to the publication (which includes the ongoing publication of data online) of journalistic, academic, or literary material;

•

the data controller must reasonably believe that the publication of the material would be in the public interest (the subjective belief must be objectively reasonable); and

•

the data controller must reasonably believe that the application of the relevant GDPR provision, eg the right to erasure, would be incompatible with the abovementioned purposes.

12.26 The application of this exemption requires evidence and assessment of the data controller’s state of mind at the relevant time. A  data controller is likely to need to demonstrate that they had regard to these matters at the time of the publication, as such consideration underpins the ‘beliefs’ whose reasonableness has to be assessed.43 12.27 Such is the breadth of the definition of journalistic activities, this exemption may be relied on by almost anybody. Journalistic activities are those ‘which have as their purpose the disclosure to the public of information, opinions or ideas, irrespective of the medium which is used to transmit them’,44 whether or not the person is a professional journalist. It is not, however, the case that ‘all information published on the internet, involving personal data’ constitutes journalistic activity. The critical question for the purposes of the exemption 42 The full list is included in the DPA 2018, Sch 2, para 26(9). 43 See the discussion in Rudd v Bridle, at [77]–[81]. 44 C-345/17 Buivids (C:2019:122), at [53]–[55]. Although this case was in the context of the 1995 Directive, the same interpretation of the exemption is likely to apply under the GDPR.

187

12.28  General Principles of the Law of Privacy and Data Protection

is whether personal data is processed solely for that purpose.45 Although the CJEU’s case law (and that of the English courts) on this point concerns the journalistic purposes exemption in Article  9 of the 1995 Directive (and the DPA 1998, s 32), this reasoning is likely to apply to the journalistic purposes exemption under the GDPR.46 12.28 The journalistic purposes exemption represents a limit on the right to the protection of personal data and the right to privacy. Under EU law, such limits may only be as broad as is ‘strictly necessary’.47 It is yet to be tested whether the generous ‘reasonable belief ’ test in the DPA 2018 is consistent with the narrow ‘strictly necessary’ test under EU law.

Data protection remedies 12.29 If an individual’s rights under the GDPR have been breached, they have a right to an effective judicial remedy and compensation if they have suffered material or non-material damage (which includes distress) as a result of the infringement.48 In UK law these remedies include compliance orders requiring a data controller to comply with a particular provision (DPA 2018, s 167) and compensation (under the DPA 2018, s 168). If it is alleged that a data subject whose personal data is being/has been processed under Part 3 of the DPA 2018 (that is, for law enforcement purposes), has suffered damage by reason of a breach of principles/rights contained in that Part, compensation can be awarded under the DPA 2018, s 169. 12.30 There is very little case law concerning the amount of data protection damages. General damages for distress are likely to mirror those for misuse of private information. Unlike the position in privacy, however, it is not possible to obtain damages in the absence of distress (or material damage); in other words, damages cannot be obtained for the commission of the wrong itself.49

45 Buivids, at [58]–[59] and [62]; Rudd v Bridle, at [77]. 46 Unlike its predecessor in the DPA 1998, s 32, which made reference to data being processed ‘only’ for the special purposes, the journalistic purposes exemption under the DPA 2018 contains no requirement that the data be processed ‘solely’ or ‘only’ for such purposes. However, Recital 153 of the GDPR (which is entitled ‘[p]rocessing of personal data solely for journalistic purposes or for the purposes of academic, artistic or literary expression’) states that processing solely for these purposes should be subject to derogations and exemptions. 47 Buivids, at [64]. 48 See GDPR, Articles 79 and 82. 49 Lloyd v Google LLC [2018] EWHC 2599 (QB), at [55]–[74].

188

Data protection law 12.31

12.31 As an alternative to legal proceedings a data subject may raise a complaint with the Information Commissioner’s Office (ICO), which has a page on its website expressly for this purpose.50 The ICO has the power to require data controllers to take steps to comply with their data protection obligations and it may issue fines. It cannot, however, award compensation to data subjects. Making a complaint to the ICO is free of charge and may offer the advantage that, unlike legal proceedings, complaints are generally addressed and resolved outside the public eye. There is no obligation to make a complaint to the ICO before bringing legal proceedings in respect of a breach of data protection legislation, although in some cases a failure to bring a complaint with the ICO before engaging in litigation may be relied on by a defendant for the purposes of costs.

50 See https://ico.org.uk/make-a-complaint/.

189

13 Privacy and Data Protection in Police Investigations, Court Proceedings and Spent Convictions Introduction 13.01 This chapter considers the application of the private law principles discussed in Chapter 12 to the disclosure of information concerning: (i) arrests and law enforcement investigations; (ii) court proceedings (including convictions and acquittals); and (iii) spent convictions within the meaning of the Rehabilitation of Offenders Act 1974 (ROA 1974). The terminology used in data protection law is explained in Chapter 12 and definitions are not repeated in this chapter. It is recommended that this chapter is read in combination with Chapter 12.

Arrests and law enforcement investigations 13.02 In recent years there have been an increasing number of privacy claims and data protection claims arising from the publication or threatened publication of information about people who are being investigated by the police or other law enforcement agencies and/or who have been arrested but not charged.The first trial of a privacy and data protection claim arising from reporting on a police investigation took place in 2018 (see Cliff Richard v BBC) and the High Court recently gave judgment in a second such claim, concerning an investigation by a different law enforcement agency (see ZXC v Bloomberg LP).1

1 Richard v BBC [2018] EWHC 1837 (Ch); ZXC v Bloomberg LP [2019] EWHC 790 (QB) – Bloomberg has applied for permission to appeal from the Court of Appeal.

191

13.03  Privacy and Data Protection in Police Investigations etc

13.03 Following these cases, it is now established that, prior to being charged, a person will generally have a reasonable expectation of privacy in the fact that they are or have been the subject of a law enforcement investigation and in the facts associated with such investigations. In Richard v BBC, the court observed that ‘whether or not there is a reasonable expectation of privacy in a police investigation is a fact-sensitive question and is not capable of a universal answer one way or the other’,2 but it went on to state that the law is now as follows: ‘It seems to me that on the authorities, and as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation, and I so rule. As a general rule it is understandable and justifiable (and reasonable) that a suspect would not wish others to know of the investigation because of the stigma attached. It is, as a general rule, not necessary for anyone outside the investigating force to know, and the consequences of wider knowledge have been made apparent in many cases. […] That is not to say … that there is an invariable right to privacy. There may be all sorts of reasons why, in a given case, there is no reasonable expectation of privacy, or why an original reasonable expectation is displaced. … in my view the legitimate expectation is the starting point. I consider that the reasonable person would objectively consider that to be the case’.3 This position was endorsed by Nicklin J  in ZXC, in which he held that ‘in general, a person does have a reasonable expectation of privacy in a police investigation up to the point of charge’ but this not ‘invariable’.4 13.04 Both Richard and ZXC concerned law enforcement investigations in the context of which the claimant had not been arrested. However, the reasoning in these cases, and the principle that the person in question will generally have a reasonable expectation of privacy in respect of their being under investigation, also applies to investigations where the person has been arrested.5 In the Northern Irish case of Jackson & Olding v BBC6 (which concerned an application to restrain the identification of two Ireland rugby players who had been arrested on suspicion of rape7) it was accepted for the purposes of an interim injunction application that the claimants had a reasonable expectation 2 Richard v BBC [2018] EWHC 1837 (Ch), at [237]. 3 Richard v BBC at [248] and [251]. 4 [2019] EWHC 790 (QB), at [119] and [124]. 5 See the comments of Nicklin J in ZXC in references cited at fn 4. 6 [2017] NIQB 51. 7 The application was unsuccessful. Both men were acquitted on all charges following a criminal trial.

192

Arrests and law enforcement investigations 13.06

of privacy in information including the fact of and reasons for their arrest. But the court said that ‘[t]he facts surrounding the arrest are particularly important’.8 13.05 There have been a number of extra-judicial reports and guidelines which have been highly influential in the development of the law in this area. In the report of the Inquiry into the Culture, Practices and Ethics of the Press (2012) Sir Brian Leveson recommended that: ‘… it should be made abundantly clear that save in exceptional and clearly identified circumstances (for example, where there may be an immediate risk to the public), the names or identifying details of those who are arrested or suspected of a crime should not be released to the press nor the public’.9 Perhaps more significant is College of Policing’s Authorised Professional Practice on Media Relations (2017), which includes the following guidance: ‘Suspects should not be identified to the media (by disclosing names or other identifying information) prior to the point of charge except where justified by clear circumstances eg a threat to life, the prevention or detection of crime or a matter of public interest and confidence’. ‘Police will not name those arrested, or suspected of a crime, save in exceptional circumstances where there is a legitimate policing purpose to do so’.10 13.06 Factors relevant to whether a person has a reasonable expectation of privacy in the fact of being under investigation and/or their arrest include the general considerations that apply in all privacy cases, referred to at para 12.7, and provide an overarching framework for assessment. Additionally, a number of arrest and investigation-specific factors can be derived from the case law. These factors are likely to be relevant not only to whether the general position (that a person has a reasonable expectation of privacy in relation to their being arrested/ the subject of a law enforcement investigation) should be departed from, but also to the strength of a claimant’s privacy rights in the balancing exercise (see paras 12.7–12.8): •

where an arrest or other relevant law enforcement action took place is likely to be relevant.11 In Jackson & Olding the judge held that the fact that an arrest takes place in private ‘should attract a considerable

8 Jackson & Olding v BBC [2017] NIQB 51, at [60]. 9 Volume II, Chapter 3, para 2.39. 10 See https://www.app.college.police.uk/app-content/engagement-and-communication/media-relations/. 11 Axel Springer v Germany (2012) 55 EHRR 6, at [100].

193

13.06  Privacy and Data Protection in Police Investigations etc

degree of protection’.12 In some cases, the fact that an arrest takes place in public may mean that the person has no reasonable expectation of privacy in respect of that information. In Richard it was accepted that the execution of a search warrant attracted a reasonable expectation of privacy notwithstanding the fact that neighbours may have been aware of the police search.13 On some facts the location of law enforcement action will be inherently linked to the question of whether or not the alleged offending took place in public or private. A person is unlikely to have a reasonable expectation of privacy in information relating to their misconduct in a public place in circumstances in which it was visible to a significant number of people;14 •

the nature of the alleged offending and, in particular, conduct committed in the context of performing a public office is unlikely to attract a reasonable expectation of privacy,15 but information concerning a law enforcement investigation into that conduct may do;

•

whether or not the police have released the identity of an arrested individual and/or information about an inquiry or persons under investigation.16 In ZXC v Bloomberg the judge stated that: ‘if the suspect’s name were to be released by the police – for legitimate policing reasons – then s/he may well find it difficult to establish that s/he had a reasonable expectation of privacy in that information’17.

•

the way in which the information in question was obtained and the underlying source of the information;18

•

the extent to which the information in question has already entered the public domain and whether the claimant took any steps in respect of any earlier publication of the information. Unlike in the law of breach of confidence, the fact that information is in the public domain is not, however, fatal to a privacy claim because the further publication of such information may amount to an intrusion interfering with a person’s privacy rights.19 Yet where information is already in the public domain, it is likely that a claimant will need to show a stronger case in relation to intrusion;

12 Jackson & Olding v BBC, at [66], [72]; Hannon & Dufour v News Group Newspapers Ltd [2014] EWHC 1580 (Ch), at [101]. 13 Richard v BBC, at [255]. 14 See for example: ZXC v Bloomberg [2019] EWHC 970 (QB), at [124]. 15 Jackson & Olding v BBC, at [72]; Hannon & Dufour v News Group Newspapers Ltd [2014] EWHC 1580 (Ch), at [101]; Axon v Ministry of Defence [2016]  EWHC  787 (QB), at [64]; Kinloch v HM  Advocate [2012]  UKSC  62, at [21]; In the matter of an application by JR38 for Judicial Review (Northern Ireland) [2015] UKSC 42, at [100]. 16 ZXC v Bloomberg, at [34]; Axel Springer v Germany, at [107]. 17 [2019] EWHC 970 (QB) at [124]. 18 ZXC v Bloomberg, at [34]. 19 Jackson & Olding v BBC, at [56].

194

Arrests and law enforcement investigations 13.07

•

the effect on or consequences for the claimant of publishing the fact that they are the subject of an investigation and/or have been arrested;20 and

•

the public policy – reflected in the College of Policing Guidance – that suspects in criminal investigations should not be identified prior to charge save in exceptional circumstances.21

13.07 There are a number of examples in the case law of the courts’ treatment of privacy and law enforcement investigations and arrests: • in Hannon & Dufour v News Group Newspapers22 it was held that it was arguable that an airline pilot had a reasonable expectation of privacy in the fact of his having been arrested following a breathalyser test, and that a passenger had a reasonable expectation of privacy in relation to the fact of having been arrested following a disturbance on a flight; • in Jackson & Olding v BBC23 Keegan J  accepted that (for the purposes of an interim injunction application) two professional rugby players had a reasonable expectation of privacy in relation to their arrest and an investigation into alleged sexual offences. However, the judge concluded that the Article  10 rights of the BBC outweighed the Article  8 rights of the claimants, owing primarily to the fact that the information initially entered the public domain in connection with their professional functions, and the fact that some of the information was already in the public domain; •

ZXC v Bloomberg24 concerned an online article about a law enforcement investigation, of which the claimant was a subject (he had been questioned but not arrested). The article, which had already been published, was based on a formal letter of request (described in the judgment as being ‘highly confidential’) sent by the UK law enforcement agency to a foreign enforcement agency under a mutual legal assistance programme. The claimant failed to secure an interim injunction but succeeded following trial. Of particular significance in this case was the fact that the information had been obtained in breach of confidence, provoking a ‘serious adverse reaction’ from the law enforcement agency. The judged emphasised the strong public interest in maintaining the confidentiality of law enforcement investigations;25 and

20 Richard v BBC, at [246] and [316]. 21 [2019] EWHC 970 (QB), at [123] and [125(ii)(c)]. 22 [2014] EWHC 1580 (Ch). 23 [2017] NIQB 51. 24 [2017] EWHC 328 (QB). 25 [2019] EWHC 970 (QB), at [125(ii)], [129].

195

13.08  Privacy and Data Protection in Police Investigations etc

•

Richard v BBC26 concerned the BBC’s live coverage (which included the use of a helicopter) of a search warrant being executed at Cliff Richard’s home in respect of an allegation of an historic sexual offence. Following a trial, Mann J  accepted that Richard had a reasonable expectation of privacy in this information and that his Article 8 rights clearly outweighed the Article 10 rights of the BBC. This was primarily on the basis of the highly intrusive and sensationalist nature of the coverage, the serious impact on the claimant, the methods adopted to obtain the information and because there was insufficient public interest in identifying him as the subject of an investigation.

13.08 It is important to keep in mind that in these cases the claimants asserted privacy rights in relation to the fact of the law enforcement investigations and actions, rather than in relation to the (alleged) conduct giving rise to the investigations (in respect of which a person may well not have a reasonable expectation of privacy). The balance of privacy and freedom of expression interests may be different in circumstances in which a publisher has conducted its own investigations and published information exposing misconduct, rather than reporting on a law enforcement investigation.27 To date, the cases have concerned investigations by the police or other law enforcement agencies. In principle, however, the same reasoning applies to any kind of regulatory investigation, for example by the General Medical Council or the Solicitors Regulation Authority. 13.09 Where the publication of information concerning arrests and police investigations is challenged on data protection grounds, the analysis (and weight of relevant factors on both sides of the balancing exercise), as well as the outcome, is likely to be the same as it would be for a privacy claim on the same facts. Given that such data is Offences and Convictions Data (as defined in para  12.17) a publisher would generally need to rely on the journalistic purposes exemption (see Chapter 12) but may in some circumstances be able to rely on a condition contained in the Data Protection Act 2018 (DPA 2018), Sch  1. Where a law enforcement agency has published such information for law enforcement purposes, to comply with data protection law it need only establish that the disclosure has some legal basis and that it is necessary for the performance of a task carried out for law enforcement purposes (this analysis is also likely to be identical to the exercise undertaken were a claimant to rely on privacy rights).28 26 Richard v BBC [2018] EWHC 1837 (Ch). 27 See the remarks of Nicklin J in ZXC [2019] EWHC 970 (QB), at [126], [132(ii)]. 28 DPA 2018, s 35.

196

Criminal trials and other court proceedings 13.12

Criminal trials and other court proceedings 13.10 Once charged with a criminal offence, a person will not ordinarily have a reasonable expectation of privacy in respect of the information that they have been charged and the factual allegations on which the charge is based.29 Furthermore, there is a strong presumption that there can be no reasonable expectation of privacy in respect of matters stated or information revealed in open court, in the course of civil or criminal proceedings, unless, for example, reporting restrictions are in place, as to which see Chapter 11.30 This includes decisions of the court, such as judgments, acquittals and convictions. 13.11 The practical consequence of this is that a privacy claim cannot (save in exceptional circumstances) be brought in respect of the publication of information about, for example, evidence given in court, things said in or to the court by legal representatives, acquittals and convictions. Subject to spent convictions (which are considered below), this applies not only to contemporaneous reporting on trials and verdicts but also to the continuing publication of such reports online after the proceedings have concluded (in many cases reports will remain online indefinitely).31 13.12 In the law of data protection many data controllers publishing/disclosing information about court proceedings and convictions handed down therein are likely to be able to rely on the journalistic purposes exemption when faced with a data protection claim arising from such publications. Additionally, a data controller is likely to be able to argue successfully that the publication of such information is justifiable on the basis that it meets the condition that the personal data has been ‘manifestly made public by the data subject’.32 In a case brought under the Data Protection Act 1998 (DPA  1998),33 the High Court in Northern Ireland held that ‘legally as a consequence of the open justice principle by committing an offence [a data subject] is deliberately taking steps to make the information public’.34 29 [2019] EWHC 970 (QB), at [132(iii)]. 30 Khuja v Times Newspapers [2017]  UKSC  49, at [34(1)] and [34(3)]; Higinbotham v Teekhungam [2018] EWHC 1880 (QB), at [55(ii)]. 31 CG v Facebook Ireland [2016] NICA 54 is an example of a case in which the fact that the convictions in question were not spent was determinative of the privacy so far as the publication of that particular information was concerned (see [43]). 32 DPA 2018, Sch 1, para 32. 33 In respect of which the relevant condition for lawful processing was as follows: ‘[t]he information contained in the personal data has been made public as a result of steps deliberately taken by the data subject’ (Sch 3, para 5). 34 Townsend v Google Inc [2017] NIQB 81 at [63]; this reasoning was endorsed in NT1 & NT2 v Google LLC [2018] EWHC 799 (QB), at [110].

197

13.13  Privacy and Data Protection in Police Investigations etc

Building on this reasoning, the High Court in England has stated that the data ‘made public as a result of steps deliberately taken by the data subject’ condition under the DPA 1998: ‘does not require a deliberate decision or “step” by the data subject “to make” the information public, but rather (a) the taking by him of a deliberate step or steps, as a result of which (b) the information is ‘made public’. A  person who deliberately conducts himself in a criminal fashion runs the risk of apprehension, prosecution, trial, conviction, and sentence. Publicity for what happens at a trial is the ordinary consequence of the open justice principle’.35 13.13 It remains to be seen whether the requirement that the data in question must be ‘manifestly made public’ by the data subject for this DPA 2018 condition to be satisfied (which wording was included under the 1995 Directive, and was not transposed into UK law) makes any difference to the position. In NT1 and NT2 v Google the Court stated that there was considerable force in the submission that ‘if this condition were not available in respect of processing of this nature it is hard to see how ordinary members of the public could lawfully discuss online the convictions (whether recent or historic) of those appearing before the courts’.36 This observation appears to remain relevant because neither the General Data Protection Regulation (GDPR) nor the DPA 2018, Sch 1 introduces further conditions that are likely to provide an alternative basis for most data controllers to process Offences and Convictions data. The cases that have considered the application of this condition have concerned persons who were convicted of criminal offences. It is difficult to see how it could apply in circumstances in which a person has been acquitted. 13.14 While this means that it is very unlikely (subject to the different rules applying to spent convictions) that a viable private law claim can be brought if information revealed in open court is published, it is nevertheless the case that some of the public law remedies covered in this book might be able to help a person trying to limit disclosure of matters stated in court. For example, a challenge to the content of an Enhanced Criminal Records Certificate (ECRC) might be brought, to try to prevent the ECRC from revealing the fact of a trial and acquittal, even though they took place in open court. In public law cases it has generally been accepted that the European Convention on Human Rights (ECHR), Article  8(1) is engaged in respect of the disclosure of such

35 NT1 & NT2 v Google LLC, at [111]. 36 At [113].

198

Spent convictions 13.16

information, even though it is derived from open court proceedings.37 The seemingly different approach taken in private and public law contexts may be explained by the particular nature of a disclosure by the state directly impacting on a person’s rehabilitation prospects.38 13.15 Notwithstanding the fact that there can be no reasonable expectation of privacy in relation to matters stated in open court, there may be rare cases in which a claimant can demonstrate that the publication of such information would have a particularly serious adverse impact upon, or constitute a significant intrusion into their private or family life (even though the information cannot be considered to be ‘private’).39 Such cases are likely to be exceptional due to the strength of the open justice principle (see para 10.03). In CG v Facebook Ireland the Court of Appeal in Northern Ireland held (in a case concerning the publication on Facebook of information concerning – among other things – unspent convictions) that the open justice principle is: ‘a factor of very significant weight which can only be outweighed by the interest of the individual in freedom from intrusion in the most compelling circumstances’.40

Spent convictions Introduction 13.16 Spent convictions are defined and governed by the ROA  1974, one of the purposes of which is to ‘rehabilitate offenders who have not been reconvicted of any serious offence for periods of years’. A person with a criminal conviction becomes a ‘rehabilitated person’ once their conviction becomes ‘spent’ at the end of a statutorily defined ‘rehabilitation period’,41 provided that they were not convicted of an offence which is not capable of being spent and that they have not committed a further offence during the rehabilitation period. The process for calculating rehabilitation periods depends on the type and length of sentence imposed and the person’s age at the time of conviction.42 In broad 37 See for example R (on the application of R) v Chief Constable of Greater Manchester Police [2018] UKSC 47, at [44]; LG v Independent Monitor [2017] EWHC 3327 (Admin), at [46]; R (on the application of A) v Chief Constable of Kent [2013] EWCA Civ 1706. The decision of the ECtHR in ML & WW v Germany (2018) ECtHR  App Nos 60798/10 and 65599/10 also held that Article  8(1) was engaged in respect of the publication of information relating to unspent convictions. 38 See the discussion in R (on the application of L) v Commissioner of Police of the Metropolis [2009] UKSC 3, at [70]–[71]. 39 Khuja, at [34](2). 40 CG v Facebook Ireland Ltd [2016] NICA 54, at [44]; see also NT1 & NT2 v Google LLC, at [140]. 41 ROA 1974, s 5. 42 ROA 1974, ss 5–6.

199

13.17  Privacy and Data Protection in Police Investigations etc

terms, it runs for a period of 12 months to seven years, which starts at the end of a sentence (including any period served on licence). Convictions giving rise to sentences of imprisonment of more than 48 months’ (four years), as well as sentences for particular types of offence, can never be spent. The relevant provisions of the ROA 1974 are covered in more detail in Chapters 1 and 5. 13.17 Once a conviction is spent, the rehabilitated person is to ‘be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction’.43 In judicial proceedings no evidence is admissible as to that conviction44 and the rehabilitated person cannot be asked or required to answer questions which cannot be answered without acknowledging or referring to a spent conviction or any ‘circumstances ancillary to that conviction’.45 In other contexts, and subject to certain exceptions,46 a rehabilitated person is not required to mention spent convictions or ancillary circumstances (and cannot be liable or otherwise prejudiced in law for any failure to do so) when asked about previous convictions.47 13.18 The ROA 1974, s 4 does not, however, prevent the disclosure/publication by third parties of information relating to spent convictions. To the contrary, the ROA 1974 provides a qualified privilege defence or immunity for publishers sued for defamation in relation to publishing information about spent convictions. The ROA 1974, s 8 provides that ‘a defendant who is sued for defamation in respect of a publication imputing the commission by the claimant of a criminal offence which is the subject of a spent conviction can rely on any reporting privilege that may exist and/or on a defence of truth or honest opinion, unless the publication is proved to have been made with malice’.48 13.19 The ROA  1974 is silent as to the status of spent convictions in the law of privacy and data protection, which is unsurprising given that it pre-dates these causes of action.

43 ROA 1974, s 4(1). 44 This is subject to particular exceptions in the ROA 1974, s 7. 45 Meaning: (a) the offence or offences which were the subject of that conviction; (b) the conduct constituting that offence or those offences; and (c) any process or proceedings preliminary to that conviction, any sentence imposed in respect of that conviction. 46 These are primarily contained in Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, SI 1975/1023 (as amended). 47 ROA 1974, s 4(2). 48 NT1 & NT2 v Google LLC, at [21].

200

Spent convictions 13.22

Privacy 13.20 Until 2018 no privacy case arising from the publication of information about spent convictions had gone to trial in England and Wales. The courts had nevertheless dealt with the position of information relating to convictions under the ECHR, Article 8 in a number of public law cases concerning disclosure by the state through CRCs and ECRCs (these cases are considered in more detail in Chapter 5). Most importantly, in 2014 the Supreme Court stated that ‘the point at which a conviction … recedes into the past and becomes part of a person’s private life will usually be the point at which it becomes spent under the 1974 Act’.49 13.21 In NT1 & NT2 v Google LLC,50 the first English privacy (and data protection) case concerning spent convictions to go to trial, the court accepted that a person may have a reasonable expectation of privacy in respect of any use or disclosure of information about the ‘crime, conviction or sentence’ provided that the conviction is spent (although on the facts of one of these joined cases the claimant was held to have no such reasonable expectation).51 The judge in this case stated that the ‘right to rehabilitation’ is part of the law of privacy and that upholding it ‘tends to support a public societal interest in the rehabilitation of offenders’.52 Similarly, in EC  v Sunday Newspapers the High Court in Northern Ireland has held that a person convicted of manslaughter had a reasonable expectation of privacy in relation to the publication of information about his spent conviction.53 This case was brought after a newspaper published a sensationalist and inaccurate article concerning an individual convicted of manslaughter later setting up a paintballing facility close to the site at which the deceased had been shot. The claimant succeeded with privacy and data protection claims, as well as in libel. 13.22 Establishing a reasonable expectation of privacy in relation to information concerning spent convictions is only the first stage in establishing the tort (see paras 12.7–12.09). The balancing exercise then has to be undertaken. The starting point for that is that the rehabilitated person’s Article 8 rights cannot be regarded as having ‘preponderant weight’.54 While the balancing exercise is 49 R (on the application of T) v Chief Constable of Greater Manchester Police [2014] UKSC 35, [2015] AC 49, at [18]. The development of the case law on this point is summarised by Warby J in NT1 & NT2 v Google, at [48]. 50 [2018] EWHC 799 (QB). 51 NT1 & NT2 v Google, at [166(2)], [171] and [224]. 52 NT1 & NT2 v Google, at [166(1)]. 53 EC v Sunday Newspapers [2017] NIQB 117, at [102], [117]–[118]. 54 NT1 & NT2 v Google, at [166(1)] and [166(2)].

201

13.23  Privacy and Data Protection in Police Investigations etc

invariably highly fact-sensitive, the only two privacy cases concerning spent convictions suggest that the following points/considerations are likely to be material: •

the fact that a conviction is spent will ‘normally be a weighty factor against the further use or disclosure of information’ about spent convictions because there is a ‘general policy or principle in favour of that information being forgotten’;55

•

whether the disclosure causes, or is likely to cause, serious or substantial interference with the private or family life of the person concerned;56

•

‘the nature and quality of the societal benefits to be gained … by the use or disclosure in question’57 – this goes to the question of whether the making available of the information (outside the statutory channels for the disclosure of information about spent convictions, eg CRCs and ECRCs) may be said to be necessary to protect the public;

•

whether the publication in question provides a fair and accurate presentation of the spent conviction and the facts underpinning it;58

•

the passage of time/period for which a conviction has been spent,59 and whether there has been public comment or debate on matters relating to the conviction in the intervening years;60

•

the context in which the conviction arose and whether there is any connection between the offending and any activities (especially of a professional nature) in which the rehabilitated person continues to be involved.

Data protection 13.23 Information concerning spent convictions falls within the ambit of Article 10 of the GDPR (taken with the DPA 2018, ss 10–11), save where it is processed for law enforcement purposes (see paras 12.18 and 12.20). In order to process such data lawfully a data controller must: •

satisfy one or more of the conditions in the DPA 2018, Sch 1 (in the case of NT1 & NT2 v Google data concerning spent convictions was held to

55 NT1 & NT2 v Google, at [166(2)]. 56 NT1 & NT2 v Google, at [166(3)]. 57 NT1 & NT2 v Google, at [166(4)]. 58 EC v Sunday Newspapers, at [131]. In EC the publisher had ‘conveyed the impression’ that the killing was intentional when this was not the finding reached by the criminal court. 59 NT1 & NT2 v Google, at [166(2)]. 60 EC v Sunday Newspapers, at [137].

202

Spent convictions 13.23

have been made public as a result of steps deliberately taken by the data subject: see paras 13.12–13.13); or •

be able to rely on an exemption, the most relevant of which is likely to be the journalistic purposes exemption (see paras 12.25–12.27). In most cases, the result in the law of data protection is likely to be the same as in relation to any privacy claim.

203

14 The Right to Erasure Introduction 14.01 This chapter considers how to get material removed from the internet using the right to erasure (also known as ‘the right to be forgotten’). The focus is on the ‘delisting’ of search engine results providing links to material that is available on the websites of publishers (ranging from blogs to established media outlets). The underlying principles of, and key terms used in, the law of data protection are set out in Chapter 12. This chapter looks at the content of the right to erasure, its application to primary publishers and search engines, the procedure and process for making an application for erasure in respect of search engine operators and, finally, the application of the right to social media platforms. 14.02 While the right to erasure arises from the law of data protection, it is important to keep in mind that the tort of misuse of private information (see Chapter 12) may also be relied on to require the removal of information published online.

The right to erasure 14.03 The EU  General Data Protection Regulation (GDPR) introduces a ‘right to erasure’, which can be relied on against any data controller. Article  17(1) provides for ‘the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay’ on a number of grounds.1 The most relevant grounds for present purposes are where the personal data is ‘no longer necessary in relation to the purposes for which they were collected or otherwise processed’, has ‘been unlawfully processed’2 or ‘the data subject objects to the processing pursuant to Article 21(1) [the right to object] and there are no overriding legitimate grounds for the processing’. In respect of the final 1 If the right to erasure is being relied on against the police or other law enforcement bodies for law enforcement purposes, eg  in relation to tweets or posts on Facebook which are said to be for law enforcement purposes, the right to erasure falls to be exercised under the Data Protection Act 2018, s 47. A full discussion of this is beyond the scope of this chapter. 2 In this context ‘unlawfully’ refers primarily to the GDPR, Article 5.

205

14.04  The Right to Erasure

case, the right to erasure will generally be exercised in combination with the ‘right to object’ under GDPR, Article 21(1). The right to object provides that: ‘The data subject shall have the right to object, on grounds relating to his or her particular situation, at any time to processing of personal data concerning him or her which is based on point (e) or (f) of Article 6(1)3… The controller shall no longer process the personal data unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims’. 14.04 It is clear from the wording of this provision and the recitals that the data controller bears the burden of demonstrating that such interests override the rights and freedoms of a data subject who objects to the processing of their personal data.4 While the operation of Article 21 has not been the subject of any litigation, this right is potentially very powerful when used in combination with the right to erasure. 14.05 The right to erasure is not absolute. Article 17(3) of the GDPR sets out the broad bases on which a data controller may refuse to comply with an erasure request. These include where processing is necessary for: ‘exercising the right of freedom of expression and information’ (even where that right is being exercised by someone other than the data controller), or ‘compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller’. Where the right to freedom of expression and information is relied on by a data controller, the wording of Article 17 suggests that the assessment of whether or not the data must be erased will depend on an objective assessment balancing the competing interests. It is likely that the Axel Springer criteria (see para 12.9) – which are general considerations relevant to the balancing of privacy and freedom of expression/information rights – would be relevant in this context.5 14.06 There are also a range of exemptions which may be relied on by a data controller. These are contained primarily in the Data Protection Act 2018 (DPA 2018), 3 That is processing on the following grounds: ‘(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data…’. 4 See GDPR, Recital 69. 5 See the opinion of Advocate General Szpunar in C-136/17 GC v CNIL (C:2019:14).

206

The right to erasure 14.09

Schs 2 and 3 and are addressed further below. The particular grounds or exemptions which may be relied on depend on the nature of the data controller, the type of personal data concerned (including whether it includes Offences and Convictions data – see the definition in para 12.17) and the purposes of the processing.The most relevant exemption is likely to be the journalistic purposes exemption (see paras 12.24–12.27). 14.07 The right to erasure may be relied on against primary publishers of information (eg a newspaper, a blogger or the police), search engine operators and social media platforms. The assessment of whether data protection law requires particular data to be erased is likely to differ depending on whether an erasure request is directed towards a search engine or a primary publisher.6

Primary publishers 14.08 As already mentioned, the right to erasure can in principle on against primary publishers such as media organisations, bloggers and even individuals using Twitter (subject to the question of whether it can be said that they are processing personal data in the course of a purely personal or household activity: see para  12.19There is at present no case law on the operation of the right to erasure. When resisting erasure requests, primary publishers are likely to have a choice between: •

relying on the GDPR, Article 17(3) and contending that the processing is necessary for the exercise of the rights of freedom of expression and information; and

•

relying on the journalistic purposes exemption.

The test under Article  17(3) appears to be an objective one; the journalistic purposes exemption contains subjective elements which may assist data controllers in some cases, but may be difficult for others to evidence (see paras 12.24–12.27). 14.09 If the primary publisher is the police (or some other body within the criminal justice system7), which is processing personal data for law enforcement purposes, the right to erasure may in principle be exercised by a data subject but on narrower grounds than those available where the processing takes place under 6 As was contemplated in C-131/12 Google Spain v Costeja Gonzalez (C:2014:317) at [85]–[86]. See also ML & WW v Germany (2018) ECtHR App Nos 60798/10 and 65599/10 at [97]. 7 See para 12.19.

207

14.10  The Right to Erasure

the GDPR and Article 17 of that Regulation is relied on. A data controller must erase the data where the processing would infringe one or more of the data protection principles in the DPA 2018, Part 3, Chapter 2.8

Search engines 14.10 Where criminal proceedings and the resulting convictions or acquittals have been reported online by the media and/or discussed in open online forums, it is likely that the webpages in question will have been indexed by search engines. These pages will appear in search results when searches are conducted using the person’s name or some other unique identifier. Search engine results are normally the focus of individuals’ concerns because they are the primary way in which information is accessed and made widely available. As the CJEU stated in Google Spain v Costeja Gonzalez, the generation of search results: ‘is liable to affect significantly the fundamental rights to privacy and to the protection of personal data when the search by means of that engine is carried out on the basis of an individual’s name, since that processing enables any internet user to obtain through the list of results a structured overview of the information relating to that individual that can be found on the internet – information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty – and thereby to establish a more or less detailed profile of him. Furthermore, the effect of the interference with those rights of the data subject is heightened on account of the important role played by the internet and search engines in modern society, which render the information contained in such a list of results ubiquitous’.9 14.11 For most people with convictions or even those who have been acquitted, the appearance of such material in search results (and particularly those of Google Search, which is used for over 90% of searches in the UK) is potentially more damaging than the appearance of information concerning criminal charges and convictions in Criminal Records Certificates (CRCs) and Enhanced Criminal Records Certificates (ECRCs). CRCs and ECRCs are only obtainable by certain bodies and under strict conditions. By contrast, an individual has no control over when a search engine search is done on their name, and anyone

8 DPA 2018, s 47. 9 Google Spain, at [80].

208

The procedure and process of applying for erasure 14.14

– ranging from potential partners to prospective employers – can carry out such searches. 14.12 The CJEU’s decision in Google Spain established that the generation of search results on a person’s name (ie finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference) amounts to the processing of personal data.10 Search engine operators, such as Google Search and Bing, are data controllers in respect of personal data processed in this context.11 Accordingly, they are required to comply with the requirements of data protection law.12 14.13 The Google Spain case established that the subjects of such searches can ask for particular results to be ‘delisted’ or ‘de-indexed’ (meaning that they will no longer appear when a search is conducted on the person’s name or some other unique identifier) on a variety of grounds.13 What has to be examined is ‘whether the data subject has a right that the information relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name’.14 Under the GDPR the grounds for erasure, which apply equally to search engines, are set out under Article 17(1) of the Regulation (see para 14.03).

The procedure and process of applying for erasure Procedure 14.14 Erasure/delisting requests should in the first instance be submitted through the online form provided by each search engine operator.15 If they refuse to delist the search results in question, there are two options: 10 See in particular [28] and [41]. 11 Google Spain, at [33] and [40]. 12 Google Spain, at [83]. 13 The right to do this was founded on the Data Protection Directive, Article 12(b) and Article 14(a), which respectively provided that: ‘Member States shall guarantee every data subject the right to obtain from the controller … as appropriate the rectification, erasure or blocking of data the processing of which does not comply with the provisions of this Directive, in particular because of the incomplete or inaccurate nature of the data’ and ‘Member States shall grant the data subject the right … to object at any time on compelling legitimate grounds relating to his particular situation to the processing of data relating to him, save where otherwise provided by national legislation’. 14 Google Spain, at [96]. 15 For information on search engine operators’ policies and procedures for making delisting requests see H Tomlinson and G Vassall-Adams (eds), Online Publication Claims (Matrix, 2017) pp 31–34.

209

14.15  The Right to Erasure

•

make a complaint to the Information Commissioner’s Office (ICO) although it can take some time to receive a response; or

•

engage in pre-action correspondence and, if necessary, issue proceedings against the search engine operator.

In most cases, it is likely to be worth raising a complaint with the ICO before engaging in litigation (or pre-action correspondence) but there is no formal requirement to do so (see further para 12.30).

Scope of search engine delisting 14.15 Search engine delisting does not affect the presence online of the webpage about which a person is concerned. Indeed, if a data subject wishes to ensure that the data concerned is removed from the internet entirely they would need to make erasure requests against the primary publishers who are making that data available. Nor does the delisting of particular search results prevent other pages (potentially including the same material) from re-appearing in search results – this is likely to occur if a publisher re-publishes a page under a different URL, or material is republished by third parties. Search engine operators are not required to undertake monitoring to ensure that particular content does not re-emerge. 14.16 Where data protection law requires the delisting of search results, they have to be removed from all EU (and UK) search domains of the search engine operator in question and rendered inaccessible from any search domain access from EU/UK territory. This means that search results may remain accessible if a user conducts a search of a non-European search engine domain outside of these geographical spaces or uses a VPN (or similar mechanisms the effect of which is to provide an IP address outside Europe). There has been debate as to whether delisting should be global, on all domains of the search engine in question. However, an Advocate General of the CJEU recently gave an Opinion stating that search engine operators are not required to deindex on its search domains worldwide; they need only ensure ‘full and effective’ deindexing in the EU.16 It remains to be seen whether the Court will follow this approach.

16 Opinion of Advocate General Szpunar in C-507/17 Google v CNIL. Judgment is awaited and at the time of writing, the Advocate General’s Opinion is available only in French.

210

The procedure and process of applying for erasure 14.18

Assessment of whether search engine results should be delisted 14.17 As concerns the nature of the assessment to be undertaken when determining whether particular search engine results should be delisted, in Google Spain the CJEU stated that, as a ‘general rule’, a data subject’s privacy and data protection rights (as engaged by the making available of the impugned search result(s)) would override the interests of internet users in having access to the information in question, as well as the economic interests of the search engine operator.17 However, in NT1 & NT2 v Google Warby J rejected the argument that Google Spain established a presumption in favour of delisting the search results in question.18 He held that there is a need for a balancing exercise which must be entered into ‘with the scales in equal balance as between delisting … and continued processing’ – this was said on the basis that ordinarily delisting cases will engage both privacy rights and conflicting rights to freedom of expression and to receive information.19 As the law currently stands, a balancing exercise is to be undertaken in which the starting point is that privacy and data protection rights, on the one hand, and freedom of expression and information rights, on the other, carry equal weight.

Delisting criteria 14.18 Following the CJEU’s decision in Google Spain, the Article 29 Working Party (which has now been replaced by the European Data Protection Board (EDPB)) produced guidelines designed to assist with search engine delisting decisions.20 These are not specific to information relating to offences and convictions, but apply to delisting/deindexing assessments generally. Although they were formulated prior to the entry into force of the GDPR and do not apply directly to the right to erasure under the GDPR, in the absence of new guidance they are likely to remain relevant to any assessment concerning the right to erasure.

17 Google Spain, at [81] and [97]. 18 NT1 & NT2 v Google LLC [2018] EWHC 799 (QB), at [133]–[134]. 19 NT1 and NT2, at [132]. 20 Guidelines on the implementation of the Court of Justice of the European Union judgment on ‘Google Spain and Inc v Agencia Espanola de Proteccion de datos (AEPD) and Maria Costeja Gonzalez’ C-131/12 (14/EN WP  224) (26  November 2014). At the time of writing neither the EDPB nor the ICO had produced guidance on the right to erasure.

211

14.19  The Right to Erasure

14.19 The non-exhaustive list of general criteria (which reflect many of the Axel Springer criteria)21 includes the following points: •

Does the data subject play a role in public life?

•

Is the data subject a minor?

•

Is the data accurate?

•

Does the data relate to the working life of the data subject?

•

Is it clear that the data reflects an individual’s personal opinion or does it appear to be verified fact?

•

Is the information sensitive personal data?

•

Is the data being made available for longer than is necessary for the purpose of the processing?

•

Is the data processing causing prejudice to the data subject?

•

Does the data have a disproportionately negative privacy impact on the data subject?

•

Was the original content published in the context of journalistic purposes?

14.20 One of the Article 29 Working Party criteria is ‘does the data relate to a criminal offence?’ In erasure cases concerning convictions data this is likely to be the most relevant consideration.22 Recognising that Member States take different approaches to convictions data, the Working Party stated that: ‘[a]s a rule, [data protection authorities] are more likely to consider the de-listing of search results relating to relatively minor offences that happened a long time ago, whilst being less likely to consider the de-listing of results relating to more serious ones that happened more recently’. 14.21 While all delisting matters are fact sensitive, the decision in NT1 & NT2 v Google (in which the Court applied the Article  29 Working Party criteria) suggests that the following considerations are also likely to be relevant in erasure cases concerning search engines:23 21 In an Article 8 case in which the applicants were seeking the anonymisation of particular articles the ECtHR held that the Axel Springer criteria apply to the assessment of whether primary publishers should be required to remove/modify articles published online concerning (unspent) convictions: ML & WW v Germany (2018) ECtHR App Nos 60798/10 and 65599/10, at [96]. 22 NT1 & NT2 v Google, at [161]. 23 NT1 & NT2 v Google, at [166], [168]–[169], [203].

212

The procedure and process of applying for erasure 14.22

•

whether or not a conviction is spent within the meaning of the Rehabilitation of Offenders Act 1974 (ROA  1974) (see Chapters 5 and 13);

•

the period of time for which a conviction has been spent;

•

whether the focus of any claim is on reputational harm, in which case regard must be had to the ROA 1974, s 8 which, as noted at para 13.18, provides publishers with a defence in respect of libel claims arising from the publication of information about spent convictions;

•

the public interest/societal benefit in the information concerned being available through search results;

•

whether the information is of ongoing relevance having regard to the data subject’s current employment/professional functions;

•

the seriousness of the underlying offence (notwithstanding the fact that it is spent);

•

the nature of the offence (the courts appear likely to consider there to be a stronger public interest in the ongoing availability of information concerning dishonesty offences);

•

whether or not the data subject pleaded guilty to the offence giving rise to the conviction (it is debatable whether this should be relevant if a conviction is spent and taking this into account may raise serious concerns in cases in which a person has correctly maintained their innocence);

•

the data subject’s attitude to their offending and, in particular, whether they have accepted guilt and/or shown remorse.

Search engine operators and the journalistic purposes exemption 14.22 It is not yet clear whether a search engine operator can rely on the journalistic purposes exemption (see paras 12.24–12.27). In Google Spain the CJEU was not called on to decide this issue but indicated that a search engine operator could not rely directly on the exemption.24 In the only domestic case dealing with this issue (decided in relation to the equivalent exemption in the Data Protection Act 1998), the Court rejected Google’s submission that it could do so. This was primarily on the basis that Google’s own activity could not be equated with journalism, which ‘is not so elastic that it can be stretched to embrace every activity that has to do with conveying information or opinions’.25 Further, the judge held that data processing through Google Search cannot be said to be done 24 Google Spain, at [85]. 25 NT1 & NT2 v Google, at [98].

213

14.23  The Right to Erasure

with a view to the publication of journalistic material in circumstances in which the indexing process is automatic.While Google Search may ‘accidentally’ make available journalistic material, such processing could not, the Court concluded, be said to be undertaken solely or only for journalistic purposes – it is primarily for Google’s own commercial purposes.26 14.23 Notwithstanding what has been said by the High Court in England and Wales, in an opinion in a case which is currently before the CJEU, an Advocate General has stated that search engine operators can in principle rely on the journalistic purposes exemption under Article 9 of the 1995 Directive in the context of delisting/erasure requests.27 Yet he made it clear that this nevertheless requires the undertaking of a balancing exercise. The judgment of the CJEU is awaited. 14.24 Ultimately, it may matter little whether search engine operators can rely on the journalistic purposes exemption, because the GDPR, Article 17(3) permits any data controller to refuse to comply with the right to erasure where it is necessary for exercising the right of freedom of expression and information. A balancing exercise will then need to be conducted. 14.25 Finally, it is worth noting that there are unresolved questions as to the precise legal basis for the processing of Offences and Convictions data (and other forms of special categories data) by search engine operators. This issue is also currently before the CJEU28 and an assessment of the complex issues involved is beyond the scope of this chapter. It suffices to say neither the 1995 Directive nor the GDPR provide an obvious and consistent legal basis pursuant to which search engine operators can process special categories/ sensitive personal data (including Offences and Convictions data). In the case currently before the CJEU, an Advocate General has expressed the view that the starting point is that search engine results concerning sensitive personal data must be delisted once a request is made. But he stated that this is subject to the search engine operator being able to rely on a relevant exemption – and, as mentioned above, he considered that the journalistic purposes exemption could be relied on.29

26 NT1 & NT2 v Google, at [100]–[101]. 27 Opinion of Advocate General Szpunar in C-136/17 GC v CNIL (C:2019:14) at [82]–[92]. 28 C-136/17 GC v CNIL (C:2019:14). 29 Advocate General Szpunar in C-136/17 GC v CNIL.

214

The right to erasure and social media platforms 14.26

The right to erasure and social media platforms 14.26 The exercise of the right to erasure against social media platforms remains untested. Subject to the specific uses made of users’ and visitors’ personal data, the operators of social media platforms are likely to be regarded as data controllers in respect of material posted by their users and, where relevant, pages created by users. Depending on the nature and purposes of material published by users and/or users’ operation of particular pages, users may also be data controllers.30 Accordingly, the right to erasure can, in principle, be exercised against both social media platforms and the users who post material on them. In some cases, the providers of social media platforms are likely to resist erasure requests on the basis of the GDPR, Article 17(3)(a) – processing necessary for exercising the right of freedom of expression and information. It may be easier for social media platforms to rely on this ground for resisting erasure than it would be for search engine operators, because social media companies are directly involved in providing a platform for their users to exercise these rights.

30 See the discussion in relation to Facebook in C-210/16 Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein v Wirtschaftsakademie Schleswig-Holstein GmbH (C:2018:388) at [30]–[40].

215

Appendix A Police Act 1997, Part V Police Act 1997 (1997 CHAPTER 50)

Part V  Certificates of criminal records, &c 112 Criminal conviction certificates. (1) [DBS]1 shall issue a criminal conviction certificate to any individual who— (a) makes an application …2, [(aa) is aged 16 or over at the time of making the application,]3 and (b) pays any fee that is payable in relation to the application under regulations made by the Secretary of State. (2) A criminal conviction certificate is a certificate which— (a) gives the prescribed details of every conviction [or conditional caution]4 of the applicant which is recorded in central records, or (b) states that there [are no such convictions and conditional cautions]5. (3) In this section— ‘central records’ means such records of convictions [and conditional cautions]6 held for the use of police forces generally as may be prescribed; [‘conditional caution’ means a caution given under section 22 of the Criminal Justice Act 2003 (c. 44) or section 66A of the Crime and Disorder Act 1998, other than one that is spent for the purposes of Schedule 2 to the Rehabilitation of Offenders Act 1974;]6 ‘conviction’ means a conviction within the meaning of the Rehabilitation of Offenders Act 1974, other than a spent conviction. (4) Where an applicant has received a criminal conviction certificate, [DBS]1 may refuse to issue another certificate to that applicant during such period as may be prescribed.

217

Police Act 1997, Part V Amendments 1 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(a). 2 Repealed by the Policing and Crime Act 2009, s 112(2), Sch 8, Pt 8. 3 Inserted by the Protection of Freedoms Act 2012, s 80(1). 4 Inserted by the Protection of Freedoms Act 2012, s 84(a). 5 Substituted by the Protection of Freedoms Act 2012, s 84(b). 6 Inserted by the Criminal Justice and Immigration Act 2008, s 50(1), (2).

113 …1 …1 Amendment 1 Repealed by the Serious Organised Crime and Police Act 2005, s 174(2), Sch 17, Pt 2.

[113A  Criminal record certificates (1) [DBS]1 must issue a criminal record certificate to any individual who— (a) makes an application …2, [(aa) is aged 16 or over at the time of making the application,]3 and (b) pays in the prescribed manner any prescribed fee. (2) The application must— (a) be countersigned by a registered person, and (b) be accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question. [(2A) But an application for a criminal record certificate need not be countersigned by a registered person if— (a) the application is transmitted to [DBS]1 electronically by a registered person who satisfies conditions determined by [DBS]1, and (b) it is transmitted in accordance with requirements determined by [DBS]1.]4 (3) A criminal record certificate is a certificate which— (a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records, or (b) states that there is no such matter. (4) …5 (5) [DBS]1 may treat an application under this section as an application under section 113B if— (a) in [its]6 opinion the certificate is required for a purpose prescribed under subsection (2) of that section, 218

Part V  Certificates of criminal records, &c

(b) the registered person provides [it]6 with the statement required by that subsection, and (c) the applicant consents and pays to [DBS]1 the amount (if any) by which the fee payable in relation to an application under that section exceeds the fee paid in relation to the application under this section. (6) In this section— ‘central records’ means such records of convictions and cautions held for the use of police forces generally as may be prescribed; ‘exempted question’ means a question [which— (a) so far as it applies to convictions, is a question]7 in relation to which section 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) has been excluded by an order of the Secretary of State under section 4(4) of that Act[; and (b) so far as it applies to cautions, is a question to which paragraph 3(3) or (4) of Schedule 2 to that Act has been excluded by an order of the Secretary of State under paragraph 4 of that Schedule;]7 [‘relevant matter’, in this section as it has effect in England and Wales, means— (a) in relation to a person who has one conviction only— (i)

a conviction of an offence within subsection (6D);

(ii) a conviction in respect of which a custodial sentence or a sentence of service detention was imposed; or (iii) a current conviction; (b) in relation to any other person, any conviction; (c) a caution given in respect of an offence within subsection (6D); (d) a current caution.]8 [(6D) The offences referred to in paragraphs (a)(i) and (c) of the definition of ‘relevant matter’ in subsection (6), as it has effect in England and Wales, are as follows— (a) murder; (b) an offence under section 67(1A) of the MedicinesAct 1968 (prescribing, etc. a medicinal product in contravention of certain conditions); (c) an offence under any of sections 126 to 129 of the Mental Health Act 1983; 219

Police Act 1997, Part V

(d) an offence specified in the Schedule to the Disqualification from Caring for Children (England) Regulations 2002; (e) an offence specified in Schedule 15 to the Criminal Justice Act 2003 (specified offences for the purposes of Chapter 5 of Part 12 of that Act (dangerous offenders)); (f) an offence under the following provisions of the Mental Capacity Act 2005— (i)

section 44 (ill-treatment or neglect);

(ii) paragraph 4 of Schedule 1 (applications and procedure for registration); (iii) paragraph 4 of Schedule 4 (duties of attorney in event of incapacity of donor); (g) an offence under section 7, 9 or 19 of the Safeguarding Vulnerable Groups Act 2006 (offences in respect of regulated activity); (h) an offence specified in section 17(3)(a), (b) or (c) of the Health and Social Care Act 2008 (cancellation of registration), apart from an offence under section 76 of that Act (disclosure of confidential personal information); (i)

an offence specified in the Schedule to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009;

(j) an offence specified in Schedule 2 or 3 to the Childcare (Disqualification) Regulations 2009; (k) an offence which has been superseded (directly or indirectly) by an offence within paragraphs (a) to (j); (l)

an offence of— (i)

attempting or conspiring to commit any offence falling within paragraphs (a) to (k), or

(ii) inciting or aiding, abetting, counselling or procuring the commission of any such offence, or an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) committed in relation to any such offence; (m) an offence under the law of Scotland or Northern Ireland or any territory outside the United Kingdom which corresponds to an offence under the law of England and Wales within any of paragraphs (a) to (l); (n) any offence under section 42 of the Armed Forces Act 2006 in relation to which the corresponding offence under the law of 220

Part V  Certificates of criminal records, &c

England and Wales (within the meaning of that section) is an offence within any of paragraphs (a) to (l); (o) an offence under section 70 of the Army Act 1955, section 70 of the Air Force Act 1955 or section 42 of the Naval Discipline Act 1957 of which the corresponding civil offence (within the meaning of that Act) is an offence within any of paragraphs (a) to (l). (6E) For the purposes of the definition of ‘relevant matter’ as it has effect in England and Wales— (a) ‘conviction’ has the same meaning as in the Rehabilitation of Offenders Act 1974, and includes a spent conviction within the meaning of that Act; (b) ‘caution’ includes a caution which is spent for the purposes of Schedule 2 to that Act but excludes a disregarded caution within the meaning of Chapter 4 of Part 5 of the Protection of Freedoms Act 2012; (c) a person’s conviction is a current conviction if— (i)

the person was aged 18 or over on the date of the conviction and that date fell within the 11 year period ending with the day on which the certificate is issued, or

(ii) the person was aged under 18 on the date of conviction and that date fell within the period of 5 years and 6 months ending with the day on which the certificate is issued; (d) a caution given to a person is a current caution if— (i) the person was aged 18 or over on the date it was given and that date fell within the 6 year period ending with the day on which the certificate is issued, or (ii) the person was aged under 18 on the date it was given and that date fell within the 2 year period ending with the day on which the certificate is issued; (e) ‘custodial sentence’ and ‘sentence of service detention’ have the same meaning as in section 5(8) of the Rehabilitation of Offenders Act 1974. (6F) Section 139(1) and (4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (which amends section 5(8) of the Rehabilitation of Offenders Act 1974) is to be treated for the purposes of subsection (6E)(e) as being in force when subsection (6E)(e) comes into force.]9 [(7) The Secretary of State may by order amend the definitions of ‘central records’ and ‘relevant matter’ in subsection (6). 221

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(8) The power to make an order under subsection (7) is exercisable by statutory instrument, but no such order may be made unless a draft of the instrument containing the order is laid before and approved by resolution of each House of Parliament.]10 [(9) For the purposes of this Part a person acts as the registered person in relation to an application for a criminal record certificate if the person— (a) countersigns the application, or (b) transmits the application to [DBS]1 under subsection (2A).]4 [(10) …11]12]13 Amendments 1 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(b). 2 Repealed by the Policing and Crime Act 2009, s 112(2), Sch 8, Pt 8. 3 Inserted by the Protection of Freedoms Act 2012, s 80(1). 4 Inserted by the Police Act 1997 (Criminal Records) (Electronic Communications) Order 2009, SI 2009/203, arts 2, 3(1), (2), (4). 5 Repealed by the Protection of Freedoms Act 2012, s 115(2), Sch 10, Pt 6. 6 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 38. 7 Inserted by the Criminal Justice and Immigration Act 2008, s 50(1), (3). 8 Substituted by the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013, SI 2013/1200, arts 2, 3. 9 Inserted by the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013, SI 2013/1200, arts 2, 4. 10 Inserted by the Safeguarding Vulnerable Groups Act 2006, s 63(1), Sch 9, para 14(1), (2). 11 Repealed by the Protection of Freedoms Act 2012, s 115(2), Sch 10, Pt 5. 12 Inserted by the Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Miscellaneous Provisions) Regulations 2010, SI 2010/1146, reg 4(2). 13 Inserted by the Serious Organised Crime and Police Act 2005, s 163(2).

[113B  Enhanced criminal record certificates (1) [DBS]1 must issue an enhanced criminal record certificate to any individual who— (a) makes an application …2, [(aa) is aged 16 or over at the time of making the application,]3 and (b) pays in the prescribed manner any prescribed fee. (2) The application must— (a) be countersigned by a registered person, and (b) be accompanied by a statement by the registered person that the certificate is required [for the purposes of an exempted question asked]4 for a prescribed purpose. [(2A) But an application for an enhanced criminal record certificate need not be countersigned by a registered person if— 222

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(a) the application is transmitted to [DBS]1 electronically by a registered person who satisfies conditions determined by [DBS]1, and (b) it is transmitted in accordance with requirements determined by [DBS]1.]5 (3) An enhanced criminal record certificate is a certificate which— (a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with subsection (4), or (b) states that there is no such matter or information. (4) Before issuing an enhanced criminal record certificate [DBS]1 must request [any relevant chief officer]6 force to provide any information which …7— (a) [the chief officer reasonably believes to]6 be relevant for the purpose described in the statement under subsection (2), and (b) [in the chief officer’s opinion,]8 ought to be included in the certificate. [(4A) In exercising functions under subsection (4) a relevant chief officer must have regard to any guidance for the time being published by the Secretary of State.]8 (5) …9 (6) …9 (7) [DBS]1 may treat an application under this section as an application under section 113A if in [its]10 opinion the certificate is not required for a purpose prescribed under subsection (2). (8) If by virtue of subsection (7) [DBS]1 treats an application under this section as an application under section 113A, [it]10 must refund to the applicant the amount (if any) by which the fee paid in relation to the application under this section exceeds the fee payable in relation to an application under section 113A. (9) In this section— ‘central records’, ‘exempted question’, and ‘relevant matter’ have the same meaning as in section 113A; [‘relevant chief officer’ means any chief officer of a police force who is identified by [DBS]1 for the purposes of making a request under subsection (4).]8 …7 223

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(10) For the purposes of this section references to a police force include any of the following— [(a) the Royal Navy Police;]11 (c) the Royal Military Police; (d) the Royal Air Force Police; (e) the Ministry of Defence Police; (f) …12 (g) …12 (h) the British Transport Police; (i)

the Civil Nuclear Constabulary;

(j)

the States of Jersey Police Force;

(k) the salaried police force of the Island of Guernsey; (l)

the Isle of Man Constabulary;

(m) a body with functions in any country or territory outside the British Islands which correspond to those of a police force in any part of the United Kingdom, and any reference to the chief officer of a police force includes the person responsible for the direction of a body mentioned in this subsection. (11) For the purposes of this section each of the following must be treated as if it were a police force— (a) the Commissioners for Her Majesty’s Revenue and Customs (and for this purpose a reference to the chief officer of a police force must be taken to be a reference to any one of the Commissioners); (b) the [National Crime Agency]13 (and for this purpose a reference to the chief officer of a police force must be taken to be a reference to the Director General of the Agency); (c) such other department or body as is prescribed (and regulations may prescribe in relation to the department or body the person to whom a reference to the chief officer is to be taken to be). [(12) For the purposes of this Part a person acts as the registered person in relation to an application for an enhanced criminal record certificate if the person— (a) countersigns the application, or (b) transmits the application to [DBS]1 under subsection (2A).]5 [(13) …14]15]16 224

Part V  Certificates of criminal records, &c Amendments 1 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(c). 2 Repealed by the Policing and Crime Act 2009, s 112(2), Sch 8, Pt 8. 3 Inserted by the Protection of Freedoms Act 2012, s 80(1). 4 Inserted by the Safeguarding Vulnerable Groups Act 2006, s 63(1), Sch 9, para 14(1), (3). 5 Inserted by the Police Act 1997 (Criminal Records) (Electronic Communications) Order 2009, SI 2009/203, arts 2, 4(1), (2), (4). 6 Substituted by the Protection of Freedoms Act 2012, s 82(1)(a), (c). 7 Repealed by the Protection of Freedoms Act 2012, ss 82(1)(b), (3)(b), 115(2), Sch 10, Pt 6. 8 Inserted by the Protection of Freedoms Act 2012, s 82(1)(d), (2), (3)(a). 9 Repealed by the Protection of Freedoms Act 2012, s 115(2), Sch 10, Pt 6. 10 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 39. 11 Substituted by the Armed Forces Act 2006, s 378(1), Sch 16, para 149. 12 Repealed by the Crime and Courts Act 2013, s 15(3), Sch 8, paras 55, 60(a). 13 Substituted by the Crime and Courts Act 2013, s 15(3), Sch 8, paras 55, 60(b). 14 Repealed by the Protection of Freedoms Act 2012, s 115(2), Sch 10, Pt 5. 15 Inserted by the Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Miscellaneous Provisions) Regulations 2010, SI 2010/1146, reg 8. 16 Inserted by the Serious Organised Crime and Police Act 2005, s 163(2).

[113BA  Suitability information relating to children (1) In such cases as are prescribed, an enhanced criminal record certificate must also include suitability information relating to children. (2) Suitability information relating to children is— (a) whether the applicant is barred from regulated activity relating to children; (b) …1 (c) …1 (d) …1 [(e) whether the applicant is subject to a direction under [section 128 of the Education and Skills Act 2008 (prohibition on participation in management of independent educational institution in England) or]2 section 167A of the Education Act 2002 (prohibition on participation in management of independent school [in Wales]2).]3 (3) Expressions used in this section and in the 2006 Act have the same meaning in this section as in that Act, except that ‘prescribed’ must be construed in accordance with section 125 of this Act. (4) ‘The 2006 Act’ means the Safeguarding Vulnerable Groups Act 2006.]4 Amendments 1 2 3 4

Repealed by the Protection of Freedoms Act 2012, s 115(2), Sch 10, Pt 5. Inserted by the Education and Skills Act 2008, s 169(1), Sch 1, para 12. Inserted by the Education and Inspections Act 2006, s 170(2). Inserted by the Safeguarding Vulnerable Groups Act 2006, s 63(1), Sch 9, para 14(1), (4).

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[113BB  Suitability information relating to vulnerable adults (1) In such cases as are prescribed, an enhanced criminal record certificate must also include suitability information relating to vulnerable adults. (2) Suitability information relating to vulnerable adults is— (a) whether the applicant is barred from regulated activity relating to vulnerable adults; (b) …1 (c) …1 (d) …1 (3) Expressions used in this section and in the 2006 Act have the same meaning in this section as in that Act, except that ‘prescribed’ must be construed in accordance with section 125 of this Act. (4) ‘The 2006 Act’ means the Safeguarding Vulnerable Groups Act 2006.]2 Amendments 1 Repealed by the Protection of Freedoms Act 2012, s 115(2), Sch 10, Pt 5. 2 Inserted by the Safeguarding Vulnerable Groups Act 2006, s 63(1), Sch 9, para 14(1), (4).

[113BC  Suitability information: power to amend (1) The Secretary of State may by order made by statutory instrument— (a) amend section 113BA for the purpose of altering the meaning of suitability information relating to children; (b) amend section 113BB for the purpose of altering the meaning of suitability information relating to vulnerable adults; [(c) amend section 120AC(4)(b) in consequence of an order made under paragraph (a) or (b).]1 (2) Such an order is subject to annulment in pursuance of a resolution of either House of Parliament.]2 Amendments 1 Inserted by the Protection of Freedoms Act 2012, s 115(1), Sch 9, paras 104, 105. 2 Inserted by the Safeguarding Vulnerable Groups Act 2006, s 63(1), Sch 9, para 14(1), (4).

[113C …1 …1]2 Amendments 1 Repealed by the Safeguarding Vulnerable Groups Act 2006, s 63(2), Sch 10. 2 Inserted by the Serious Organised Crime and Police Act 2005, s 163(2).

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[113D …1 …1]2 Amendments 1 Repealed by the Safeguarding Vulnerable Groups Act 2006, s 63(2), Sch 10. 2 Inserted by the Serious Organised Crime and Police Act 2005, s 163(2).

[113E  Criminal record certificates: specified children’s and adults’ lists: urgent cases (1) Subsection (2) applies to an application under section 113A or 113B if— (a) it is accompanied by a children’s suitability statement, (b) the registered person requests an urgent preliminary response, and (c) the applicant pays in the prescribed manner such additional fee as is prescribed in respect of the application. (2) [DBS]1 must notify the registered person— (a) if the applicant is not included in a specified children’s list, of that fact; (b) if the applicant is included in such a list, of the details prescribed for the purposes of section 113C(1)(b) above; (c) if the applicant is not subject to a specified children’s direction, of that fact; (d) if the applicant is subject to such a direction, of the grounds on which the direction was given and the details prescribed for the purposes of section 113C(1)(d) above. (3) Subsection (4) applies to an application under section 113A or 113B if— (a) it is accompanied by an adults’ suitability statement, (b) the registered person requests an urgent preliminary response, and (c) the applicant pays in the prescribed manner such additional fee as is prescribed in respect of the application. (4) [DBS]1 must notify the registered person either— (a) that the applicant is not included in a specified adults’ list, or (b) that a criminal record certificate or enhanced criminal record certificate will be issued in due course. (5) In this section— ‘criminal record certificate’ has the same meaning as in section 113A; 227

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‘enhanced criminal record certificate’ has the same meaning as in section 113B; ‘children’s suitability statement’, ‘specified children’s direction’ and ‘specified children’s list’ have the same meaning as in section 113C; ‘adults’ suitability statement’ and ‘specified adults’ list’ have the same meaning as in section 113D.]2 Amendments 1 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(d). 2 Inserted by the Serious Organised Crime and Police Act 2005, s 163(2).

[113F …1 …1]2 Amendments 1 Repealed by the Safeguarding Vulnerable Groups Act 2006, s 63(2), Sch 10. 2 Inserted by the Serious Organised Crime and Police Act 2005, s 163(2).

114  Criminal record certificates: Crown employment. (1) [DBS]1 shall issue a criminal record certificate to any individual who— (a) makes an application under this section …2, [(aa) is aged 16 or over at the time of making the application,]3 and (b) pays any fee that is payable in relation to the application under regulations made by the Secretary of State. (2) An application under this section must be accompanied by a statement by a Minister of the Crown that the certificate is required for the purposes of an exempted question asked in the course of considering the applicant’s suitability for an appointment by or under the Crown. (3) [Section 113A(3) to (6), 120AC and 120AD]4 shall apply in relation to this section with any necessary modifications. Amendments 1 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(e). 2 Repealed by the Policing and Crime Act 2009, s 112(2), Sch 8, Pt 8. 3 Inserted by the Protection of Freedoms Act 2012, s 80(1). 4 Substituted by the Protection of Freedoms Act 2012, s 115(1), Sch 9, paras 104, 106.

115 …1 …1 228

Part V  Certificates of criminal records, &c Amendment 1 Repealed by the Serious Organised Crime and Police Act 2005, s 174(2), Sch 17, Pt 2.

[116  Enhanced criminal record certificates: judicial appointments and Crown employment. (1) [DBS]1 shall issue an enhanced criminal record certificate to any individual who— (a) makes an application under this section …2, [(aa) is aged 16 or over at the time of making the application,]3 and (b) pays any fee that is payable in relation to the application under regulations made by the Secretary of State. (2) An application under this section must be accompanied by a statement by a Minister of the Crown, or a person nominated by a Minister of the Crown, that the certificate is required for the purposes of an exempted question asked in the course of considering the applicant’s suitability for— (a) a judicial appointment, or (b) an appointment by or under the Crown to a position [of such description as may be prescribed]4. (3) [Section 113B(3) to (11)[, 113BA to 113BC, 120AC and 120AD]5]6 shall apply in relation to this section with any necessary modifications. Amendments 1 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(f). 2 Repealed by the Policing and Crime Act 2009, s 112(2), Sch 8, Pt 8. 3 Inserted by the Protection of Freedoms Act 2012, s 80(1). 4 Substituted by the Criminal Justice Act 2003, s 328, Sch 35, paras 1, 5. 5 Substituted by the Protection of Freedoms Act 2012, s 115(1), Sch 9, paras 104, 107. 6 Substituted by the Serious Organised Crime and Police Act 2005, s 163(3), Sch 14, paras 1, 3.

[116A  Up-dating certificates (1) [DBS]1 must, on the request of a relevant person and subject to subsection (2), give up-date information to that person about— (a) a criminal conviction certificate, (b) a criminal record certificate, or (c) an enhanced criminal record certificate, which is subject to up-date arrangements. (2) [DBS]2 may impose conditions about— 229

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(a) the information to be supplied in connection with such a request for the purpose of enabling [DBS]2 to decide whether the person is a relevant person, (b) any other information to be supplied in connection with such a request. (3) For the purposes of subsection (1) a certificate is subject to up-date arrangements if condition A, B or C is met and the arrangements have not ceased to have effect in accordance with a notice given under section 118(3B). (4) Condition A is that— (a) the individual who applied for the certificate made an application at the same time to [DBS]2 for the certificate to be subject to up-date arrangements, (b) the individual has paid in the prescribed manner any prescribed fee, (c) [DBS]2 has granted the application for the certificate to be subject to up-date arrangements, and (d) the period of 12 months beginning with the date on which the grant comes into force has not expired. (5) Condition B is that— (a) the individual whose certificate it is has made an application to [DBS]2 to renew or (as the case may be) further renew unexpired up-date arrangements in relation to the certificate, (b) the individual has paid in the prescribed manner any prescribed fee, (c) [DBS]2 has granted the application, (d) the grant has come into force on the expiry of the previous up-date arrangements, and (e) the period of 12 months beginning with the date on which the grant has come into force has not expired. (6) Condition C is that— (a) the certificate was issued under section 117(2) or 117A(5)(b), and (b) the certificate which it superseded— (i)

was subject to up-date arrangements immediately before it was superseded, and

(ii) would still be subject to those arrangements had it not been superseded. (7) [DBS]2 must not grant an application as mentioned in subsection (4)(c) or (5)(c) unless any fee prescribed under subsection (4)(b) or (as the case may be) (5)(b) has been paid in the manner so prescribed. 230

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(8) In this section ‘up-date information’ means— (a) in relation to a criminal conviction certificate or a criminal record certificate— (i) information that there is no information recorded in central records which would be included in a new certificate but is not included in the current certificate, or (ii) advice to apply for a new certificate or (as the case may be) request another person to apply for such a certificate, (b) in relation to an enhanced criminal record certificate which includes suitability information relating to children or vulnerable adults— (i) information that there is no information recorded in central records, no information of the kind mentioned in section 113B(4), and no information of the kind mentioned in section 113BA(2) or (as the case may be) 113BB(2), which would be included in a new certificate but is not included in the current certificate, or (ii) advice to apply for a new certificate or (as the case may be) request another person to apply for such a certificate, and (c) in relation to any other enhanced criminal record certificate— (i) information that there is no information recorded in central records, nor any information of the kind mentioned in section 113B(4), which would be included in a new certificate but is not included in the current certificate, or (ii) advice to apply for a new certificate or (as the case may be) request another person to apply for such a certificate. (9) If up-date information is given under subsection (8)(a)(i), (8)(b)(i) or (8) (c)(i) and the certificate to which that information relates is one to which subsection (10) applies, the up-date information must include that fact. (10) This subsection applies to a certificate which— (a) in the case of a criminal conviction certificate, states that there are no convictions or conditional cautions of the applicant recorded in central records, (b) in the case of a criminal record certificate, is as described in section 120AC(3), and (c) in the case of an enhanced criminal record certificate, is as described in section 120AC(4). (11) In this section— ‘central records’ has the same meaning as in section 113A, 231

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‘criminal record certificate’ includes a certificate under section 114, ‘enhanced criminal record certificate’ includes a certificate under section 116, ‘exempted question’ has the same meaning as in section 113A, ‘relevant person’ means— (a) in relation to a criminal conviction certificate— (i)

the individual whose certificate it is, or

(ii) any person authorised by the individual, (b) in relation to a criminal record certificate— (i)

the individual whose certificate it is, or

(ii) any person who is authorised by the individual and is seeking the information for the purposes of an exempted question, and (c) in relation to an enhanced criminal record certificate— (i)

the individual whose certificate it is, or

(ii) any person who is authorised by the individual and is seeking the information for the purposes of an exempted question asked for a purpose prescribed under section 113B(2)(b).]2 Amendments 1 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(g). 2 Inserted by the Protection of Freedoms Act 2012, s 83.

117  Disputes about [certificates and up-date information]1. (1) Where an applicant for a certificate under any of sections 112 to 116 believes that the information contained in the certificate is inaccurate he may make an application in writing to [DBS]2 for a new certificate. [(1A) Where any person other than the applicant believes that the information contained in a certificate under any of sections 112 to 116 is inaccurate, that person may make an application in writing to [DBS]2 for a decision as to whether or not the information is inaccurate.]3 [(1B) Where a person believes that the wrong up-date information has been given under section 116A in relation to the person’s certificate, the person may make an application in writing to the [DBS]2 for corrected up-date information.]4 232

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(2) [DBS]2 shall consider any application under this section; and where [it]5 is of the opinion that the information in the certificate is inaccurate[, or that the wrong up-date information has been given,]4 [it]5 shall issue a new certificate [or (as the case may be) corrected up-date information]4. [(2A) In this section— ‘corrected up-date information’, in relation to a certificate, means information which includes— (a) information that the wrong up-date information was given in relation to the certificate on a particular date, and (b) new up-date information in relation to the certificate, ‘up-date information’ has the same meaning as in section 116A.]4 Amendments 1 Substituted by the Protection of Freedoms Act 2012, s 115(1), Sch 9, paras 104, 108(1), (2). 2 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(h). 3 Inserted by the Protection of Freedoms Act 2012, s 82(4). 4 Inserted by the Protection of Freedoms Act 2012, s 115(1), Sch 9, paras 104, 108(1), (3)-(5). 5 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 40.

[117A  Other disputes about section 113B(4) information (1) Subsection (2) applies if a person believes that information provided in accordance with section 113B(4) and included in a certificate under section 113B or 116 — (a) is not relevant for the purpose described in the statement under section 113B(2) or (as the case may be) 116(2), or (b) ought not to be included in the certificate. (2) The person may apply in writing to the independent monitor appointed under section 119B for a decision as to whether the information is information which falls within subsection (1)(a) or (b) above. (3) The independent monitor, on receiving such an application, must ask such chief officer of a police force as the independent monitor considers appropriate to review whether the information concerned is information which— (a) the chief officer reasonably believes to be relevant for the purpose described in the statement under section 113B(2) or (as the case may be) 116(2), and (b) in the chief officer’s opinion, ought to be included in the certificate. 233

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(4) In exercising functions under subsection (3), the chief officer concerned must have regard to any guidance for the time being published under section 113B(4A). (5) If, following a review under subsection (3), the independent monitor considers that any of the information concerned is information which falls within subsection (1)(a) or (b)— (a) the independent monitor must inform [DBS]1 of that fact, and (b) on being so informed, [DBS]1 must issue a new certificate. (6) In issuing such a certificate, [DBS]1 must proceed as if the information which falls within subsection (1)(a) or (b) had not been provided under section 113B(4). (7) In deciding for the purposes of this section whether information is information which falls within subsection (1)(a) or (b), the independent monitor must have regard to any guidance for the time being published under section 113B(4A). (8) Subsections (10) and (11) of section 113B apply for the purposes of this section as they apply for the purposes of that section.]2 Amendments 1 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(i). 2 Inserted by the Protection of Freedoms Act 2012, s 82(5).

118  Evidence of identity. (1) [DBS]1 may refuse to issue a certificate under this Part, or to consider [an application as mentioned in section 116A(4)(a) or (5)(a) or]2 an application under section 117[, 117A]2 [or 120]3, unless the application is supported by such evidence of identity as [it]4 may require. (2) In particular, [DBS]1 may refuse to issue a certificate or consider an application unless the applicant— (a) has his fingerprints taken at such place and in such manner as may be prescribed, and (b) pays the prescribed fee to such person as may be prescribed. [(2A) For the purpose of verifying evidence of identity supplied in pursuance of subsection (1) [DBS]1 may obtain such information as [it]4 thinks is appropriate from data held— (a) by the United Kingdom Passport Agency; (b) by the Driver and Vehicle Licensing Agency; (c) by Driver and Vehicle Licensing Northern Ireland; 234

Part V  Certificates of criminal records, &c

(d) by the Secretary of State in connection with keeping records of national insurance numbers; (e) by such other persons or for such purposes as is prescribed.]3 (3) Regulations dealing with the taking of fingerprints may make provision requiring their destruction in specified circumstances and by specified persons. [(3A) [DBS]1 by notice given in writing may require a person who has a certificate which is subject to up-date arrangements under section 116A to attend at a place and time specified in the notice to provide fingerprints for the sole purpose of enabling the Secretary of State to verify whether information in the possession of [DBS]1 that [DBS]1 considers may be relevant to the person’s certificate does relate to that person. (3B) If a person fails to comply with a requirement imposed under subsection (3A), [DBS]1 by notice given in writing may inform that person that, from a date specified in the notice, the person’s certificate is to cease to be subject to up-date arrangements.]2 (4) Regulations prescribing a fee for the purposes of subsection (2)(b) shall make provision for a refund in cases of an application under section 117 [or 117A]2 where a new certificate is issued. Amendments 1 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(j). 2 Inserted by the Protection of Freedoms Act 2012, s 115(1), Sch 9, paras 104, 109. 3 Amended by the Serious Organised Crime and Police Act 2005, s 164. 4 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 41.

119  Sources of information. (1) Any person who holds records of convictions or cautions for the use of police forces generally shall make those records available to [DBS]1 [for the purpose of enabling [it]2 to carry out [a relevant function]3]4 [[(1A) …5]6]7 [(1B) [DBS]1 may require the chief officer of a police force to make available such information as [it]2 may specify for the purpose of [deciding whether to make a request to that chief officer under section 113B(4)]8.]9 (2) Where the chief officer of a police force receives a request under section [113B]10 or 116 […11]9 he shall comply with it as soon as practicable. [(2A) Where, in connection with the provision of up-date information under section 116A, the chief officer of a police force receives a request for information of the kind mentioned in section 113B(4), the chief officer of police must comply with it as soon as practicable.]12 235

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(3) [DBS]1 shall pay to the appropriate [local policing body or]13 police authority, …14 [such fee as [the Secretary of State]2 thinks appropriate]15 for information provided in accordance with [section 120A(4) or subsection (2) of this section]4. (4) Any person who holds records of fingerprints for the use of police forces generally shall make those records available to [DBS]1 for the purpose of enabling [it]2 to carry out [its]2 functions under this Part in relation to— (a) any application for a certificate or for registration; [(aa) any application as mentioned in section 116A(4)(a) or (5)(a);]12 or (b) the determination of whether a person should continue to be a registered person. [(4A) DBS may require the Secretary of State to provide it with the information and advice specified in section 113CD(2) to (6) for the purpose of enabling DBS to carry out its functions under section 113CD.]16 (5) No proceedings shall lie against [DBS]1 by reason of an inaccuracy in the information made available or provided to [it]2 in accordance with this section. [(6) For the purposes of this section references to a police force include any body mentioned in subsections (10)(a) to (i) and (11) of section 113B and references to a chief officer must be construed accordingly. (7) In the case of such a body the reference in subsection (3) to the appropriate [local policing body or]13 police authority must be construed as a reference to such body as is prescribed.]17 [(8) In this section a relevant function is a function of [DBS]1— (a) under this Part in relation to any application for a certificate or for registration; [(aa) under this Part in relation to any request under section 116A(1);]12 (b) under this Part in relation to the determination of whether a person should continue to be a registered person; (c) …11 (d) under paragraph 1, 2, 7 or 8 of Schedule 3 to [the Safeguarding Vulnerable Groups Act 2006]18 (considering whether criteria prescribed for the purpose of that paragraph apply to an individual).]9 Amendments 1 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(k). 2 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 42. 3 Substituted by the Safeguarding Vulnerable Groups Act 2006, s 63(1), Sch 9, para 14(1), (7)(a). 4 Substituted by the Criminal Justice and Police Act 2001, s 134(2)(a), (c).

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Part V  Certificates of criminal records, &c 5 Repealed by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, art 50(1), (2). 6 Substituted by the Policing and Crime Act 2009, s 112(1), Sch 7, para 118. 7 Inserted by the Criminal Justice and Police Act 2001, s 134(2)(b). 8 Substituted by the Protection of Freedoms Act 2012, s 115(1), Sch 9, paras 104, 110(1), (3). 9 Inserted by the Safeguarding Vulnerable Groups Act 2006, s 63(1), Sch 9, para 14(1), (7)(b)-(d). 10 Substituted by the Serious Organised Crime and Police Act 2005, s 163(3), Sch 14, paras 1, 4(b). 11 Repealed by the Protection of Freedoms Act 2012, s 115(1), Sch 9, paras 35, 40(1), (2), (3)(a). 12 Inserted by the Protection of Freedoms Act 2012, s 115(1), Sch 9, paras 104, 110(1), (4)-(6). 13 Inserted by the Police Reform and Social Responsibility Act 2011, s 99, Sch 16, paras 221, 223 (January 16, 2012) 14 Repealed by the Greater London Authority Act 1999, s 423, Sch 34, Pt VII. 15 Substituted by the Serious Organised Crime and Police Act 2005, s 165(1)(a). 16 Inserted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, art 50(1), (3). 17 Inserted by the Serious Organised Crime and Police Act 2005, s 165(1)(b). 18 Substituted by the Protection of Freedoms Act 2012, s 115(1), Sch 9, paras 35, 40(1), (3)(b).

[119B  Independent monitor (1) There is to be an independent monitor for the purposes of this Part. (2) The independent monitor is a person appointed by the Secretary of State— (a) for such period, not exceeding three years, as the Secretary of State decides; (b) on such terms as the Secretary of State decides. (3) A person may be appointed for a further period or periods. (4) The Secretary of State may terminate the appointment of the independent monitor before the end of the period mentioned in subsection (2)(a) by giving the monitor notice of the termination not less than three months before it is to take effect. [(4A) Before appointing a person to be the independent monitor, or terminating the appointment of the independent monitor, the Secretary of State must consult the Department of Justice in Northern Ireland.]1 (5) The independent monitor must review— (a) …2 (b) a sample of cases in which a certificate issued under section 113B has included information in pursuance of subsection (4)(b) of that section; (c) a sample of cases in which the chief officer of a police force has decided that information must not be included in a certificate or report in pursuance of section 113B(4)(b) …2; [(ca) a sample of cases in which the chief officer of a police force has decided that information should be disclosed or not disclosed to the 237

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Secretary of State for the purpose of the provision by the [DBS]3 of up-date information under section 116A.]4 (d) …5 (e) …5 (6) The purpose of a review under subsection (5) is to ensure compliance with Article 8 of the European Convention of Human Rights. (7) The independent monitor must in relation to each year make a report to the Secretary of State about the performance of police forces in exercising their functions under this Part. (8) The independent monitor may make recommendations to the Secretary of State as to— (a) any guidance issued by the Secretary of State or which the monitor thinks it would be appropriate for the Secretary of State to issue; (b) any changes to any enactment which the monitor thinks may be appropriate. [(8A) The independent monitor has the functions conferred on the monitor by section 117A.]4 (9) The chief officer of a police force must provide to the independent monitor such information as the monitor reasonably requires in connection with the exercise of his functions under this section [or section 117A]4.]6 Amendments 1 Inserted by the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010, SI 2010/976, art 12, Sch 14, para 36, 37. 2 Repealed by the Protection of Freedoms Act 2012, s 115(1), Sch 9, paras 104, 111(1)-(3). 3 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(l). 4 Inserted by the Protection of Freedoms Act 2012, s 115(1), Sch 9, paras 104, 111(1), (4)-(6). 5 Repealed by the Protection of Freedoms Act 2012, s 115(2), Sch 10, Pt 5. 6 Inserted by the Safeguarding Vulnerable Groups Act 2006, s 28.

[120  Registered persons. (1) For the purposes of this Part a registered person is a person who is listed in a register to be maintained by [DBS]1 for the purposes of this Part. [(2) [DBS]1 shall include in the register any person who— (a) applies to [it]2 in writing to be registered, [and]3 (b) satisfies the conditions in subsections (4) to (6); (c) …4]5 [(2A) Subsection (2) is subject to— 238

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(a) regulations under section 120ZA, (b) section 120A, and (c) section 120AA and regulations made under that section.]3 (3) …6 (4) A person applying for registration under this section must be— (a) a body corporate or unincorporate, (b) a person [who is]7 appointed to an office by virtue of any enactment [and who, in the case of an individual, is aged 18 or over]7, or (c) an individual [aged 18 or over]7 who employs others in the course of a business. (5) A body applying for registration under this section must satisfy [DBS]1 that it— (a) is likely to ask exempted questions, or (b) is likely to [act as the registered person in relation to]8 applications under section [113A or 113B]9 at the request of bodies or individuals asking exempted questions. (6) A person, other than a body, applying for registration under this section must satisfy [DBS]1 that he is likely to ask exempted questions. (7) In this section ‘exempted question’ has the same meaning as in section [113A]9. Amendments 1 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(m). 2 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 43. 3 Inserted by the Protection of Freedoms Act 2012, s 115(1), Sch 9, paras 104, 112(1), (2)(b), (3). 4 Repealed by the Protection of Freedoms Act 2012, s 115(1), (2), Sch 9, paras 104, 112(1), (2)(c), Sch 10, Pt 6. 5 Substituted by the Criminal Justice Act 2003, s 328, Sch 35, paras 1, 6(1), (2). 6 Repealed by the Criminal Justice Act 2003, ss 328, 332, Sch 35, paras 1, 6(1), (3), Sch 37, Pt 11. 7 Inserted by the Protection of Freedoms Act 2012, s 80(2). 8 Substituted by the Police Act 1997 (Criminal Records) (Electronic Communications) Order 2009, SI 2009/203, arts 2, 5. 9 Amended by the Serious Organised Crime and Police Act 2005, s 163(3), Sch 14, paras 1, 6.

[120ZA  Regulations about registration (1) The Secretary of State may by regulations make further provision about registration. (2) Regulations under this section may in particular make provision for— (a) the payment of fees, 239

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(b) the information to be included in the register, (c) the registration of any person to be subject to conditions, (d) the nomination by— (i)

a body corporate or unincorporate, or

(ii) a person appointed to an office by virtue of any enactment, of the individuals authorised to act for it or, as the case may be, him in relation to the countersigning of applications under this Part [or the transmitting of applications under section 113A(2A) or 113B(2A)]1, and (e) the refusal by [DBS]2, on such grounds as may be specified in or determined under the regulations, to accept or to continue to accept the nomination of a person as so authorised. (3) The provision which may be made by virtue of subsection (2)(c) includes provision— (a) for the registration or continued registration of any person to be subject to prescribed conditions or, if the regulations so provide, such conditions as [DBS]2 thinks fit, and (b) for [DBS]2 to vary or revoke those conditions. (4) The conditions imposed by virtue of subsection (2)(c) may in particular include conditions— (a) requiring a registered person, before [acting as the registered person in relation to]3 an application at an individual’s request, to verify the identity of that individual in the prescribed manner, (b) requiring an application under section [113A or 113B]4 to be transmitted by electronic means to [DBS]2 by the [person who acts as the registered person in relation to the application]3, and (c) requiring a registered person to comply with any code of practice for the time being in force under section 122.]5 Amendments 1 Inserted by the Police Act 1997 (Criminal Records) (Electronic Communications) Order 2009, SI 2009/203, arts 2, 6(2). 2 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(n). 3 Substituted by the Police Act 1997 (Criminal Records) (Electronic Communications) Order 2009, SI 2009/203, arts 2, 6(3)(a), (b). 4 Substituted by the Serious Organised Crime and Police Act 2005, s 163(3), Sch 14, paras 1, 7. 5 Inserted by the Criminal Justice Act 2003, s 328, Sch 35, paras 1, 7.

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[120A  Refusal and cancellation of registration [on grounds related to disclosure]1 (1) [DBS]2 may refuse to include a person in the register maintained for the purposes of this Part if it appears to [it]3 that the registration of that person is likely to make it possible for information to become available to an individual who, in [DBS]2 opinion, is not a suitable person to have access to that information. (2) [DBS]2 may remove a person from the register if it appears to [DBS]2— (a) that the registration of that person is likely to make it possible for information to become available to an individual who, in [DBS]2 opinion, is not a suitable person to have access to that information; or (b) that the registration of that person has resulted in information becoming known to such an individual. (3) In determining for the purposes of this section whether an individual is a suitable person to have access to any information, [DBS]2 may have regard, in particular, to— (a) any information relating to that person which concerns a relevant matter; [(b) any information relating to the person of a kind specified in subsection (3A);]4 (c) any information provided to [DBS]2 under subsection (4). [(3A) The information is— (a) whether the person is barred from regulated activity; (b) …5 (c) …5 (d) whether the person is subject to a direction under section 167A of the Education Act 2002 (prohibition on participation in management of independent school). (3B) …5 (3C) …5 (3D) Expressions used in [subsection (3A)]6 and in the Safeguarding Vulnerable Groups Act 2006 have the same meaning in [that subsection]6 as in that Act …5.]7 (4) It shall be the duty of the chief officer of any police force to comply, as soon as practicable after receiving it, with any request by [DBS]2 to provide [DBS]2 with information which— (a) is available to the chief officer; 241

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(b) relates to— (i)

an applicant for registration;

(ii) a registered person; or (iii) an individual who is likely to have access to information in consequence of [a particular applicant for registration, or a particular registered person, acting as the registered person in relation to applications under this Part]8; and (c) concerns a matter which [DBS]2 has notified to the chief officer to be a matter which, in the opinion of [DBS]2, is relevant to the determination of the suitability of individuals for having access to the information that may be provided in consequence of [a person acting as the registered person in relation to]8 applications under this Part. (5) In this section ‘relevant matter’ has the same meaning as in section [113A]9. [(6) For the purposes of this section references to a police force include any body mentioned in subsections (10)(a) to (i) and (11) of section 113B and references to a chief officer must be construed accordingly.]10 [(7) The Secretary of State may by order made by statutory instrument amend subsection (3A) for the purpose of altering the information specified in that subsection. (8) Such an order is subject to annulment in pursuance of a resolution of either House of Parliament.]6]11 Amendments 1 Inserted by the Criminal Justice Act 2003, s 328, Sch 35, paras 1, 8. 2 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(o). 3 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 44. 4 Substituted by the Policing and Crime Act 2009, s 96(1), (2). 5 Repealed by the Protection of Freedoms Act 2012, s 115(1), (2), Sch 9, paras 35, 42(1)-(3), (4)(c), Sch 10, Pt 5. 6 Substituted by the Protection of Freedoms Act 2012, s 115(1), Sch 9, paras 35, 42(1), (4)(a), (b). 7 Inserted by the Policing and Crime Act 2009, s 96(1), (3), (4). 8 Substituted by the Police Act 1997 (Criminal Records) (Electronic Communications) Order 2009, SI 2009/203, arts 2, 7. 9 Substituted by the Serious Organised Crime and Police Act 2005, s 163(3), Sch 14, paras 1, 8(b). 10 Inserted by the Serious Organised Crime and Police Act 2005, s 165(2). 11 Inserted by the Criminal Justice and Police Act 2001, s 134(1).

[120AA  Refusal, cancellation or suspension of registration on other grounds (1) Regulations may make provision enabling [DBS]1 in prescribed cases to refuse to register a person who, in the opinion of [DBS]1, is likely to [act as 242

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the registered person in relation to]2 fewer applications under this Part in any period of twelve months than a prescribed minimum number. (2) Subsection (3) applies where a registered person— (a) is, in the opinion of [DBS]1, no longer likely to wish to [act as the registered person in relation to]2 applications under this Part, (b) has, in any period of twelve months during which he was registered, [acted as the registered person in relation to]2 fewer applications under this Part than the minimum number specified in respect of him by regulations under subsection (1), or (c) has failed to comply with any condition of his registration. (3) Subject to section 120AB, [DBS]1 may— (a) suspend that person’s registration for such period not exceeding 6 months as [DBS]1 thinks fit, or (b) remove that person from the register. [(4) Subsection (6) applies if an application is made under section 120 by an individual who— (a) has previously been a registered person; and (b) has been removed from the register (otherwise than at that individual’s own request). (5) Subsection (6) also applies if an application is made under section 120 by a body corporate or unincorporate which— (a) has previously been a registered person; and (b) has been removed from the register (otherwise than at its own request). (6) [DBS]1 may refuse the application.]3]4 Amendments 1 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(p). 2 Substituted by the Police Act 1997 (Criminal Records) (Electronic Communications) Order 2009, SI 2009/203, arts 2, 8. 3 Inserted by the Protection of Freedoms Act 2012, s 81. 4 Inserted by the Criminal Justice Act 2003, s 328, Sch 35, paras 1, 9.

[120AB  Procedure for cancellation or suspension under section 120AA (1) Before cancelling or suspending a person’s registration by virtue of section 120AA, [DBS]1 must send him written notice of [its]2 intention to do so. (2) Every such notice must— 243

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(a) give [DBS]1 reasons for proposing to cancel or suspend the registration, and (b) inform the person concerned of his right under subsection (3) to make representations. (3) A person who receives such a notice may, within 21 days of service, make representations in writing to [DBS]1 as to why the registration should not be cancelled or suspended. (4) After considering such representations, [DBS]1 must give the registered person written notice— (a) that at the end of a further period of six weeks beginning with the date of service, the person’s registration will be cancelled or suspended, or (b) that [it]2 does not propose to take any further action. (5) If no representations are received within the period mentioned in subsection (3) [DBS]1 may cancel or suspend the person’s registration at the end of the period mentioned in that subsection. (6) Subsection (1) does not prevent [DBS]1 from imposing on the registered person a lesser sanction than that specified in the notice under that subsection. (7) Any notice under this section that is required to be given in writing may be given by being transmitted electronically. (8) This section does not apply where— (a) [DBS]1 is satisfied, in the case of a registered person other than a body, that the person has died or is incapable, by reason of physical or mental impairment, of [acting as the registered person in relation to]3 applications under this Part, or (b) the registered person has requested to be removed from the register. (9) The Secretary of State may by regulations amend subsection (4)(a) by substituting for the period there specified, such other period as may be specified in the regulations.]4 Amendments 1 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(q). 2 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 45. 3 Substituted by the Police Act 1997 (Criminal Records) (Electronic Communications) Order 2009, SI 2009/203, arts 2, 9. 4 Inserted by the Criminal Justice Act 2003, s 328, Sch 35, paras 1, 9.

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[120AC  Registered persons: information on progress of an application (1) [DBS]1 must, in response to a request from a person who is acting as the registered person in relation to an application under section 113A or 113B, inform that person whether or not a certificate has been issued in response to the application. (2) Subsections (3) and (4) apply if, at the time a request is made under subsection (1), a certificate has been issued. (3) In the case of a certificate under section 113A, if it was a certificate stating that there is no relevant matter recorded in central records, [DBS]1 may inform the person who made the request that the certificate was such a certificate. (4) In the case of a certificate under section 113B, if it was a certificate— (a) stating that there is no relevant matter recorded in central records and no information provided in accordance with subsection (4) of that section, and (b) if section 113BA(1) or 113BB(1) applies to the certificate, containing no suitability information indicating that the person to whom the certificate is issued— (i) is barred from regulated activity relating to children or to vulnerable adults, or (ii) is subject to a direction under 128 of theEducation and Skills Act 2008 or section 167A of the Education Act 2002, [DBS]1 may inform the person who made the request that the certificate was such a certificate. (5) If no certificate has been issued, [DBS]1 must inform the person who made the request of such other matters relating to the processing of the application as [DBS]1 considers appropriate. (6) Subject to subsections (2) to (4), nothing in this section permits [DBS]1 to inform a person who is acting as the registered person in relation to an application under section 113A or 113B of the content of any certificate issued in response to the application. (7) [DBS]1 may refuse a request under subsection (1) if it is made after the end of a prescribed period beginning with the day on which the certificate was issued. (8) In this section— ‘central records’ and ‘relevant matter’ have the same meaning as in section 113A, 245

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‘suitability information’ means information required to be included in a certificate under section 113B by virtue of section 113BA or 113BB. (9) Expressions in subsection (4)(b) and in the Safeguarding Vulnerable Groups Act 2006 have the same meaning in that paragraph as in that Act.]2 Amendments 1 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(r). 2 Inserted by the Protection of Freedoms Act 2012, s 79(3).

[120AD  Registered persons: copies of certificates in certain circumstances (1) Subsection (2) applies if— (a) [DBS]1 gives up-date information in relation to a criminal record certificate or enhanced criminal record certificate, (b) the up-date information is advice to apply for a new certificate or (as the case may be) request another person to apply for such a certificate, and (c) the person whose certificate it is in respect of which the up-date information is given applies for a new criminal record certificate or (as the case may be) enhanced criminal record certificate. (2) [DBS]1 must, in response to a request made within the prescribed period by the person who is acting as the registered person in relation to the application, send to that person a copy of any certificate issued in response to the application if the registered person— (a) has counter-signed the application or transmitted it to [DBS]1 under section 113A(2A) or 113B(2A), (b) has informed [DBS]1 that the applicant for the new certificate has not, within such period as may be prescribed, sent a copy of it to a person of such description as may be prescribed, and (c) no prescribed circumstances apply. (3) The power under subsection (2)(b) to prescribe a description of person may be exercised to describe the registered person or any other person. (4) In this section ‘up-date information’ has the same meaning as in section 116A.]2 Amendments 1 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(s). 2 Inserted by the Protection of Freedoms Act 2012, s 79(3).

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122  Code of practice. (1) The Secretary of State shall publish, and may from time to time revise, a code of practice in connection with the use of information provided to[, or the discharge of any function by,]1 registered persons under this Part. [(1A) The reference in subsection (1) to the use of information provided to registered persons under this Part includes a reference to the use of information provided in accordance with section 116A(1) to relevant persons (within the meaning of that section) who are not registered persons under this Part.]2 (2) The Secretary of State shall lay before Parliament the code of practice under this section as soon as practicable after publication and after revision. (3) [Subsection (3A) applies if [DBS]3 thinks that the [person who acted as the registered person in relation to]4 an application for a certificate under section 113A or 113B]5— (a) has failed to comply with the code of practice under this section, or (b) [acted as the registered person]4 at the request of a body which, or individual who, has failed to comply with the code of practice. [(3A) [DBS]3 may— (a) …6 (b) suspend the registration of the person; (c) cancel the registration of the person. (3B) Section 120AB applies if [DBS]3 proposes to suspend or cancel a person’s registration under subsection (3A) above as it applies if [it]7 proposes to suspend or cancel a person’s registration by virtue of section 120AA.]1 Amendments 1 Inserted by the Safeguarding Vulnerable Groups Act 2006, s 29(1), (2), (4). 2 Inserted by the Protection of Freedoms Act 2012, s 115(1), Sch 9, paras 104, 113. 3 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(t). 4 Amended by the Police Act 1997 (Criminal Records) (Electronic Communications) Order 2009, SI 2009/203, arts 2, 10. 5 Substituted by the Safeguarding Vulnerable Groups Act 2006, s 29(1), (3). 6 Repealed by the Protection of Freedoms Act 2012, s 115(2), Sch 10, Pt 6. 7 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 46.

[122A …1 …1]2 Amendments 1 Repealed by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, art 51. 2 Inserted by the Criminal Justice Act 2003, s 328, Sch 35, paras 1, 10.

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123  Offences: falsification, &c. (1) A person commits an offence if, with intent to deceive, he— (a) makes a false certificate under this Part, (b) alters a certificate under this Part, (c) uses a certificate under this Part which relates to another person in a way which suggests that it relates to himself, or (d) allows a certificate under this Part which relates to him to be used by another person in a way which suggests that it relates to that other person. (2) A person commits an offence if he knowingly makes a false statement for the purpose of obtaining, or enabling another person to obtain, a certificate under this Part. (3) A person who is guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both. 124  Offences: disclosure. (1) A  member, officer or employee of a body registered under section 120 commits an offence if he discloses information provided following an application under section [113A or 113B]1 unless he discloses it, in the course of his duties,— (a) to another member, officer or employee of the registered body, (b) to a member, officer or employee of a body at the request of which the registered body [acted as the registered person in relation to]2 the application, or (c) to an individual at whose request the registered body [acted as the registered person in relation to]2 the relevant application. (2) Where information is provided under section [113A or 113B]1 following an application [in relation to which the person who acted as the registered person did so]2 at the request of a body which is not registered under section 120, a member, officer or employee of the body commits an offence if he discloses the information unless he discloses it, in the course of his duties, to another member, officer or employee of that body. (3) Where information is provided under section [113A or 113B]1 following an application [in relation to which an individual acted as the registered person, or in relation to which the person who acted as the registered person did so at the request of an individual]2— 248

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(a) the individual commits an offence if he discloses the information unless he discloses it to an employee of his for the purpose of the employee’s duties, and (b) an employee of the individual commits an offence if he discloses the information unless he discloses it, in the course of his duties, to another employee of the individual. (4) Where information provided under section [113A or 113B]1 is disclosed to a person and the disclosure— (a) is an offence under this section, or (b) would be an offence under this section but for subsection …3 (6)(a), (d), (e) or (f), the person to whom the information is disclosed commits an offence (subject to [subsection (6)]4) if he discloses it to any other person. (5) …3 (6) Subsections (1) to (4) do not apply to a disclosure of information contained in a certificate under section [113A or 113B]1 which is made— (a) with the written consent of the applicant for the certificate, or (b) to a government department, or (c) to a person appointed to an office by virtue of any enactment, or (d) in accordance with an obligation to provide information under or by virtue of any enactment, or (e) for the purposes of answering an exempted question (within the meaning of section [113A]1) of a kind specified in regulations made by the Secretary of State, or (f) for some other purpose specified in regulations made by the Secretary of State. (7) A person who is guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 3 on the standard scale, or to both. Amendments 1 Substituted by the Serious Organised Crime and Police Act 2005, s 163(3), Sch 14, paras 1, 12. 2 Substituted by the Police Act 1997 (Criminal Records) (Electronic Communications) Order 2009, SI 2009/203, arts 2, 11. 3 Repealed by the Protection of Freedoms Act 2012, s 115(1), (2), Sch 9, paras 104, 115(2)(a), (3), Sch 10, Pt 6. 4 Substituted by the Protection of Freedoms Act 2012, s 115(1), Sch 9, paras 104, 115(2)(b).

249

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[124A  Further offences: disclosure of information obtained in connection with delegated function (1) Any person who is engaged in the discharge of functions conferred by this Part on [DBS]1 commits an offence if he discloses information which has been obtained by him in connection with those functions and which relates to a particular person unless he discloses the information, in the course of his duties,— (a) to another person engaged in the discharge of those functions, (b) to the chief officer of a police force in connection with a request under this Part to provide information to [DBS]1, or (c) to an applicant …2 who is entitled under this Part to the information disclosed to him. (2) Where information is disclosed to a person and the disclosure— (a) is an offence under subsection (1), or (b) would be an offence under subsection (1) but for subsection (3)(a), (d) or (e), the person to whom the information is disclosed commits an offence if he discloses it to any other person. (3) Subsection (1) does not apply to a disclosure of information which is made— (a) with the written consent of the person to whom the information relates, (b) to a government department, (c) to a person appointed to an office by virtue of any enactment, (d) in accordance with an obligation to provide information under or by virtue of any enactment, or (e) for some other purpose specified in regulations made by the Secretary of State. (4) A person who is guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding 51 weeks or to a fine not exceeding level 3 on the standard scale, or to both. (5) In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003, the reference in subsection (4) to 51 weeks is to be read as a reference to 6 months. [(6) For the purposes of this section the reference to a police force includes any body mentioned in subsections (10)(a) to (i) and (11) of section 113B and the reference to a chief officer must be construed accordingly.]3 250

Part V  Certificates of criminal records, &c

[(6A) For the purposes of this section the reference to an applicant includes a person who makes a request under section 116A(1), 120AC(1) or 120AD(2).]4]5 Amendments 1 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(u). 2 Repealed by the Protection of Freedoms Act 2012, s 115(1), (2), Sch 9, paras 104, 116(1), (2), Sch 10, Pt 6. 3 Inserted by the Serious Organised Crime and Police Act 2005, s 165(3). 4 Inserted by the Protection of Freedoms Act 2012, s 115(1), Sch 9, paras 104, 116(1), (3). 5 Inserted by the Criminal Justice Act 2003, s 328, Sch 35, paras 1, 11.

125 Regulations. (1) Anything authorised or required by any provision of this Part to be prescribed shall be prescribed by regulations made by the Secretary of State. [(1A) In prescribing the amount of a fee that— (a) is payable in relation to applications under a particular provision of this Part, but (b) is not payable in relation to applications made by volunteers, the Secretary of State may take into account not only the costs associated with applications in relation to which the fee is payable but also the costs associated with applications under that provision made by volunteers.]1 (2) Regulations under this Part shall be made by statutory instrument. (3) …2 (4) A statutory instrument …2 shall be subject to annulment pursuant to a resolution of either House of Parliament. (5) Regulations under this Part may make different provision for different cases. [(6) If the power mentioned in subsection (1) is exercised by the Scottish Ministers, the reference in [subsection (4)]3 to each House of Parliament must be construed as a reference to the Scottish Parliament.]4 Amendments 1 Inserted by the Anti-social Behaviour, Crime and Policing Act 2014, s 151 2 Repealed by the Criminal Justice Act 2003, s 332, Sch 37, Pt 11. 3 Substituted by the Serious Organised Crime and Police Act 2005 (Amendment) Order 2005, SI 2005/3496, art 6(2). 4 Inserted by the Serious Organised Crime and Police Act 2005, s 163(3), Sch 14, paras 1, 14.

[125B  Form of applications (1) [DBS]1 may determine the form, manner and contents of an application for the purposes of any provision of this Part. 251

Police Act 1997, Part V

(2) A determination may, in particular, impose requirements about the form or manner in which an electronic application is to be signed or countersigned. [(3) In this section ‘application’ includes a request under section 116A(1), 120AC(1) or 120AD(2).]2]3 Amendments 1 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 37(v). 2 Inserted by the Protection of Freedoms Act 2012, s 115(1), Sch 9, paras 104, 117. 3 Inserted by the Policing and Crime Act 2009, s 97(1).

[126  Interpretation of Part V. (1) In this Part— ‘caution’ means a caution given to a person in England and Wales or Northern Ireland in respect of an offence which, at the time when the caution is given, he has admitted; ‘certificate’ means any one or more documents issued in response to a particular application [but does not include any documents issued in response to— (a) a request under section 116A(1), (b) an application as mentioned in section 116A(4)(a) or (5)(a), or (c) a request under section 120AC or 120AD;]1 ‘chief officer’ means— (i)

a chief officer of police of a police force in England and Wales,

[(ii) the chief constable of the Police Service of Scotland, and]2 (iii) the Chief Constable of the Police Service of Northern Ireland; [‘DBS’ means the Disclosure and Barring Service established by section 87(1) of the Protection of Freedoms Act 2012;]3 ‘government department’ includes a Northern Ireland department; ‘Minister of the Crown’ includes a Northern Ireland department; ‘office-holder in the Scottish Administration’ has the same meaning as in the Scotland Act 1998 (c.46); ‘police authority’ means— [(i) the Scottish Police Authority, and]2 (ii) the Northern Ireland Policing Board; ‘police force’ means— 252

Part V  Certificates of criminal records, &c

(i)

a police force in Great Britain, and

(ii) the Police Service of Northern Ireland and the Police Service of Northern Ireland Reserve; ‘prescribed’ shall be construed in accordance with section 125(1). (2) In the application of this Part to Northern Ireland, a reference to the Rehabilitation of Offenders Act 1974, or to a provision of that Act, shall be construed as a reference to the Rehabilitation of Offenders (Northern Ireland) Order 1978 or, as the case may be, to the corresponding provision of that order. [(3) In the application of this Part to Scotland references to the Secretary of State must be construed as references to the Scottish Ministers. (4) Subsection (3) does not apply to section 118(2A)(d) or 124A(1) and (2).]4 Amendments 1 Inserted by the Protection of Freedoms Act 2012, s 115(1), Sch 9, paras 104, 118. 2 Substituted by the Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013, SI 2013/602, art 25, Sch 1, para 6(1), (7) (April 1, 2013) 3 Inserted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 36, 47. 4 Inserted by the Serious Organised Crime and Police Act 2005, s  166(2) (December 3, 2007 as SI 2007/3341)

127  Saving: disclosure of information and records. Nothing in sections 112 to 119 shall be taken to prejudice any power which exists apart from this Act to disclose information or to make records available.

253

Appendix B Data Protection Act 2018, Schedule 7 Data Protection Act 2018 (2018 CHAPTER 12)

Schedule 7 Competent authorities Section 30 1 Any United Kingdom government department other than a non-ministerial government department. 2 The Scottish Ministers. 3 Any Northern Ireland department. 4 The Welsh Ministers. Chief officers of police and other policing bodies 5 The chief constable of a police force maintained under section 2 of the Police Act 1996. 6 The Commissioner of Police of the Metropolis.

255

Data Protection Act 2018, Schedule 7

7 The Commissioner of Police for the City of London. 8 The Chief Constable of the Police Service of Northern Ireland. 9 The chief constable of the Police Service of Scotland. 10 The chief constable of the British Transport Police. 11 The chief constable of the Civil Nuclear Constabulary. 12 The chief constable of the Ministry of Defence Police. 13 The Provost Marshal of the Royal Navy Police. 14 The Provost Marshal of the Royal Military Police. 15 The Provost Marshal of the Royal Air Force Police. 16 The chief officer of— (a) a body of constables appointed under provision incorporating section 79 of the Harbours, Docks, and Piers Clauses Act 1847; (b) a body of constables appointed under an order made under section 14 of the Harbours Act 1964; (c) the body of constables appointed under section 154 of the Port of London Act 1968 (c.xxxii). 17 A body established in accordance with a collaboration agreement under section 22A of the Police Act 1996. 256

Schedule 7 Competent authorities

18 The Director General of the Independent Office for Police Conduct. 19 The Police Investigations and Review Commissioner. 20 The Police Ombudsman for Northern Ireland.

Other authorities with investigatory functions 21 The Commissioners for Her Majesty’s Revenue and Customs. 22 The Welsh Revenue Authority. 23 Revenue Scotland. 24 The Director General of the National Crime Agency. 25 The Director of the Serious Fraud Office. 26 The Director of Border Revenue. 27 The Financial Conduct Authority. 28 The Health and Safety Executive. 29 The Competition and Markets Authority. 257

Data Protection Act 2018, Schedule 7

30 The Gas and Electricity Markets Authority. 31 The Food Standards Agency. 32 Food Standards Scotland. 33 Her Majesty’s Land Registry. 34 The Criminal Cases Review Commission. 35 The Scottish Criminal Cases Review Commission. Authorities with functions relating to offender management 36 A  provider of probation services (other than the Secretary of State), acting in pursuance of arrangements made under section 3(2) of the Offender Management Act 2007. 37 The Youth Justice Board for England and Wales. 38 The Parole Board for England and Wales. 39 The Parole Board for Scotland. 40 The Parole Commissioners for Northern Ireland. 41 The Probation Board for Northern Ireland. 258

Schedule 7 Competent authorities

42 The Prisoner Ombudsman for Northern Ireland. 43 A person who has entered into a contract for the running of, or part of— (a) a prison or young offender institution under section 84 of the Criminal Justice Act 1991, or (b) a secure training centre under section 7 of the Criminal Justice and Public Order Act 1994. 44 A person who has entered into a contract with the Secretary of State— (a) under section 80 of the Criminal Justice Act 1991 for the purposes of prisoner escort arrangements, or (b) under paragraph 1 of Schedule 1 to the Criminal Justice and Public Order Act 1994 for the purposes of escort arrangements. 45 A person who is, under or by virtue of any enactment, responsible for securing the electronic monitoring of an individual. 46 A youth offending team established under section 39 of the Crime and Disorder Act 1998.

Other authorities 47 The Director of Public Prosecutions. 48 The Director of Public Prosecutions for Northern Ireland. 49 The Lord Advocate. 50 A Procurator Fiscal. 259

Data Protection Act 2018, Schedule 7

51 The Director of Service Prosecutions. 52 The Information Commissioner. 53 The Scottish Information Commissioner. 54 The Scottish Courts and Tribunal Service. 55 The Crown agent. 56 A court or tribunal.

260

Appendix C Data Protection Act 2018, Schedule 8 Data Protection Act 2018 (2018 CHAPTER 12)

Schedule 8 Conditions for sensitive processing under Part 3 Section 35(5)

Statutory etc purposes 1 This condition is met if the processing— (a) is necessary for the exercise of a function conferred on a person by an enactment or rule of law, and (b) is necessary for reasons of substantial public interest. Administration of justice 2 This condition is met if the processing is necessary for the administration of justice. Protecting individual’s vital interests 3 This condition is met if the processing is necessary to protect the vital interests of the data subject or of another individual.

261

Data Protection Act 2018, Schedule 8

Safeguarding of children and of individuals at risk 4 (1) This condition is met if— (a) the processing is necessary for the purposes of— (i) protecting an individual from neglect or physical, mental or emotional harm, or (ii) protecting the physical, mental or emotional well-being of an individual, (b) the individual is— (i)

aged under 18, or

(ii) aged 18 or over and at risk, (c) the processing is carried out without the consent of the data subject for one of the reasons listed in sub-paragraph (2), and (d) the processing is necessary for reasons of substantial public interest. (2) The reasons mentioned in sub-paragraph (1)(c) are— (a) in the circumstances, consent to the processing cannot be given by the data subject; (b) in the circumstances, the controller cannot reasonably be expected to obtain the consent of the data subject to the processing; (c) the processing must be carried out without the consent of the data subject because obtaining the consent of the data subject would prejudice the provision of the protection mentioned in subparagraph (1)(a). (3) For the purposes of this paragraph, an individual aged 18 or over is ‘at risk’ if the controller has reasonable cause to suspect that the individual— (a) has needs for care and support, (b) is experiencing, or at risk of, neglect or physical, mental or emotional harm, and (c) as a result of those needs is unable to protect himself or herself against the neglect or harm or the risk of it. (4) In sub-paragraph (1)(a), the reference to the protection of an individual or of the well-being of an individual includes both protection relating to a particular individual and protection relating to a type of individual. 262

Schedule 8 Conditions for sensitive processing under Part 3

Personal data already in the public domain 5 This condition is met if the processing relates to personal data which is manifestly made public by the data subject. Legal claims 6 This condition is met if the processing— (a) is necessary for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), (b) is necessary for the purpose of obtaining legal advice, or (c) is otherwise necessary for the purposes of establishing, exercising or defending legal rights. Judicial acts 7 This condition is met if the processing is necessary when a court or other judicial authority is acting in its judicial capacity. Preventing fraud 8 (1) This condition is met if the processing— (a) is necessary for the purposes of preventing fraud or a particular kind of fraud, and (b) consists of— (i) the disclosure of personal data by a competent authority as a member of an anti-fraud organisation, (ii) the disclosure of personal data by a competent authority in accordance with arrangements made by an anti-fraud organisation, or (iii) the processing of personal data disclosed as described in subparagraph (i) or (ii). (2) In this paragraph, ‘anti-fraud organisation’ has the same meaning as in section 68 of the Serious Crime Act 2007. 263

Data Protection Act 2018, Schedule 8

Archiving etc 9 This condition is met if the processing is necessary— (a) for archiving purposes in the public interest, (b) for scientific or historical research purposes, or (c) for statistical purposes.

264

Appendix D Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 SI 1975/1023 1 This Order may be cited as the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and shall come into operation on 1st July 1975. [2 (1) In this Order, except where the context otherwise requires— [‘the 2000 Act’ means the Financial Services and Markets Act 2000;]1 [‘the 2006 Act’ means the Safeguarding Vulnerable Groups Act 2006;]2 [‘the 2016 Act’ means the Regulation and Inspection of Social Care (Wales) Act 2016;]3 ‘the Act’ means the Rehabilitation of Offenders Act 1974; [‘administration of justice offence’ means— (a) the offence of perverting the course of justice, (b) any offence under section 51 of the Criminal Justice and Public Order Act 1994 (intimidation etc. of witnesses, jurors and others), (c) an offence under section 1, 2, 6 or 7 of the Perjury Act 1911 (perjury), or any offence committed under the law of any part of the United Kingdom (other than England or Wales) or of any other country where the conduct which constitutes the offence would, if it all took place in England or Wales, constitute one or more of the offences specified by paragraph (a) to (c);]1 [[‘adoption agency’ has the meaning given by section 2(1) of the Adoption and Children Act 2002; 265

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975

[‘adoption service’– (a) in relation to England, means the discharge by a local authority in England of relevant adoption functions within the meaning of section 43(3)(a) of the Care Standards Act 2000, and (b) in relation to Wales, means the discharge by a local authority in Wales of functions under the Adoption and Children Act 2002 of making or participating in arrangements for the adoption of children or the provision of adoption support services as defined in section 2(6) of that Act;]4 ‘adoption support agency’ has the meaning given by section 8 of the Adoption and Children Act 2002;]5]6 [‘associate’, in relation to a person (‘A’), means someone who is a controller, director or manager of A or, where A is a partnership, any partner of A;]1 [‘authorised payment institution’ has the meaning given by regulation 2(1) of the [Payment Services Regulations 2017]7;]8 …9 [‘childminder agency’ has the meaning given in section 98(1) of the Childcare Act 2006;]10 [‘child minding’ means— [(a) child minding within the meaning of section 79A of the Children Act 1989; and (b) early years childminding within the meaning of section 96(4) of the Childcare Act 2006, or later years childminding within the meaning of section 96(8) of that Act;]11]6 [[‘children’s home’– (a) in relation to England, has the meaning given by section 1 of the Care Standards Act 2000; and [(b) in relation to Wales, means premises at which– (i) a care home service is provided wholly or mainly to persons under the age of 18, or (ii) a secure accommodation service is provided, and in this paragraph ‘care home service’ and ‘secure accommodation service’ have the meaning given in Part 1 of the 2016 Act;]4]12]10 [‘collective investment scheme’ has the meaning given by section 235 of the 2000 Act; …13 266

SI 1975/1023

[[‘contracting authority’ has the meaning given by regulation 2(1) of the Public Contracts Regulations 2015, regulation 4(1) of the Utilities Contracts Regulations 2016 or regulation 4 of the Concession Contracts Regulations 2016, as appropriate;]14 …15]16 ‘controller’ has the meaning given by section 422 of the 2000 Act; […17]18 ‘Council of Lloyd’s’ means the council constituted by section 3 of Lloyd’s Act 1982;]1 [‘day care’ means— [(a) day care for which registration is required by section 79D(5) of the Children Act 1989; and (b) early years provision within the meaning of section 96(2) of the Childcare Act 2006 (other than early years childminding), or later years provision within the meaning of section 96(6) of that Act (other than later years childminding), for which registration is required, or permitted, under Part 3 of that Act;]11 ‘day care premises’ means any premises on which day care is provided, but does not include any part of the premises where children are not looked after;]6 [‘depositary’, in relation to an authorised contractual scheme, has the meaning given in section 237(2) of the 2000 Act;]19 […15 …15]16 [‘director’ has the meaning given by section 417 of the 2000 Act; [‘electronic money institution’ has the meaning given by regulation 2(1) of the Electronic Money Regulations 2011;]20 [‘the FCA’ means the Financial Conduct Authority;]21 [[‘fostering agency’– (a) in relation to England, has the meaning given by section 43(4) of the Care Standards Act 2000, and (b) in relation to Wales, means a provider of a fostering service within the meaning of paragraph 5 of Schedule 1 to the 2016 Act;]4 [‘fostering service’ means– 267

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975

(a) in relation to England, the discharge by a local authority in England of relevant fostering functions within the meaning of section 43(3)(b)(i) of the Care Standards Act 2000, and (b) in relation to Wales, means the discharge by a local authority in Wales of functions under section 81 of the Social Services and Well-being (Wales) Act 2014 (in connection with placements with local authority foster parents) or regulations made under or by virtue of any of sections 87, 92(1)(a), (b), (d) or 93 of that Act;]4]10 [‘key worker’ means– (a) any individual who is likely, in the course of exercising the duties of that individual’s office or employment, to play a significant role in the decision making process of the FCA, PRA or the Bank of England in relation to the exercise of its public functions (within the meaning of section 349(5) of the 2000 Act) under any provision of the 2000 Act other than Part VI, or to support directly such a person; (b) (i) any individual who is likely, in the course of exercising the duties of that individual’s office or employment, to support directly an individual mentioned in paragraph (a);]22 ‘manager’ has the meaning given by section 423 of the 2000 Act; ‘open-ended investment company’ has the meaning given by section 236 of the 2000 Act; [‘operator’, in relation to an authorised contractual scheme, has the meaning given in section 237(2) of the 2000 Act;]19 [‘Part 4A permission’ has the meaning given by section 55A(5) of the 2000 Act;]22 [‘payment services’  has the meaning given by regulation 2(1) of the [Payment Services Regulations 2017]7;]8 [‘the PRA’ means the Prudential Regulation Authority;]21 [‘protected caution’ means a caution of the kind described in article 2A(1); ‘protected conviction’ means a conviction of the kind described in article 2A(2);]23 [‘recognised clearing house’ means a recognised clearing house as defined in section 285 of the 2000 Act;]24 268

SI 1975/1023

[‘recognised CSD’ has the meaning given by section 285(1)(e) of the 2000 Act;]25 [‘registered account information service provider’ has the meaning given by regulation 2(1) of the Payment Services Regulations 2017;]26 ‘relevant collective investment scheme’ means a collective investment scheme which is recognised under section 264 (schemes constituted in other EEA States) …27 or 272 (individually recognised overseas schemes) of the 2000 Act;]1 …28 [[‘residential family centre’– (a) in relation to England, has the meaning given by section 4(2) of the Care Standards Act 2000; and (b) in relation to Wales, means a place at which a residential family centre service, withinin the meaning of Part 1 of the Regulation and Inpsection of Social Care (Wales) Act 2016, is provided;]12]10 [‘small payment institution’ has the meaning given by regulation 2(1) of the [Payment Services Regulations 2017]7;]8 [‘taxi driver licence’ means a licence granted under— [(i) section 46 of the Town Police Clauses Act 1847;]29 (ii) section 8 of the Metropolitan Public Carriage Act 1869; (iii) section 9 of the Plymouth City Council Act 1975; (iv) section 51 of the Local Government (Miscellaneous Provisions) Act 1976; or (v) section 13 of the Private Hire Vehicles (London) Act 1998;]18 [‘trustee’, in relation to a unit trust scheme, has the meaning given by section 237 of the 2000 Act; [‘utility’ has the meaning given by regulation 5(1) of the Utilities Contracts Regulations 2016 or regulation 5 of the Concession Contracts Regulations 2016, as appropriate;]30 …31 ‘UK recognised investment exchange’ means an investment exchange in relation to which a recognition order under section 290 of the 2000 Act, otherwise than by virtue of section 292(2) of that Act (overseas investment exchanges), is in force;]1 [[‘voluntary adoption agency’– 269

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975

(a) in relation to England, has the meaning given by section 4(7) of the Care Standards Act 2000, and (b) in relation to Wales, means a provider of an adoption service within the meaning of pargraph 4(a) of Schedule 1 to the 2016 Act;]4]10 [‘work’ includes— (a) work of any kind, whether paid or unpaid, and whether under a contract of service or apprenticeship, under a contract for services, or otherwise than under a contract; and (b) an office established by or by virtue of an enactment; ‘work with children’ means work of the kind described in paragraph 14[[, 14A, 14B or 14C]5]32 of [Part 2 of]33 Schedule 1 to this Order;]6 …9. (2) …34 [(2ZA) In this Order references to the Bank of England do not include the Bank acting in its capacity as the Prudential Regulation Authority.]35 [(2A) Nothing in this Order applies in relation to a conviction for a service offence which is not a recordable service offence; and for this purpose— (a) ‘service offence’ means an offence which is a service offence within the meaning of the Armed Forces Act 2006 or an SDA offence within the meaning of the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009; (b) ‘recordable service offence’ means an offence which is a recordable service offence within the meaning of the Police and Criminal Evidence Act 1984 (Armed Forces) Order 2009.]23 (3) Part IV of Schedule 1 to this Order shall have effect for the interpretation of expressions used in that Schedule. (4) In this Order a reference to any enactment shall be construed as a reference to that enactment as amended, extended or applied by or under any other enactment. [(4A) In this Order any reference to a conviction shall where relevant include a reference to a caution, and any reference to spent convictions shall be construed accordingly.]33]36 (5) The Interpretation Act 1889 shall apply to the interpretation of this Order as it applies to the interpretation of an Act of Parliament. Amendments 1 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (No. 2) Order 2001, SI 2001/3816, arts 2, 3(1), (2)(b), (c).

270

SI 1975/1023 2 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2009, SI 2009/1818, arts 2, 3. 3 Inserted by the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments to Secondary Legislation) Regulations 2019, SI 2019/237, reg , Sch 1, para 1(1), (2)(a). 4 Substituted by the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments to Secondary Legislation) Regulations 2019, SI 2019/237, reg , Sch 1, para 1(1), (2)(b)-(f). 5 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2014, SI 2014/1707, arts 2, 3(a), (g). 6 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2001, SI 2001/1192, arts 2, 3. 7 Substituted by the Payment Services Regulations 2017, SI 2017/752, reg 156, Sch 8, para 6(a)(i). 8 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2011/1800, art 2(1), (2). 9 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (No. 2) Order 2001, SI 2001/3816, arts 2, 3(2)(a), (3). 10 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2014, SI 2014/1707, arts 2, 3(b)-(f). 11 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2008, SI 2008/3259, arts 2, 3(1)(a), (b). 12 Substituted by the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments to Secondary Legislation) Regulations 2018, SI 2018/48, reg 2, Sch 1, para 1(1), (2). 13 Repealed by the Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013, SI 2013/472, art 3, Sch 2, para 1(1), (2)(a). 14 Substituted by the Public Procurement (Amendments, Repeals and Revocations) Regulations 2016, SI 2016/275, reg 3, Sch 2, paras 25, 26(1), (2). 15 Repealed by the Public Procurement (Amendments, Repeals and Revocations) Regulations 2016, SI 2016/275, reg 3, Sch 2, paras 25, 26(1), (3). 16 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2006, SI 2006/2143, arts 2, 3(b). 17 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012, SI 2012/1957, arts 2, 4. 18 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2003, SI 2003/965, arts 2, 3. 19 Inserted by the Collective Investment in Transferable Securities (Contractual Scheme) Regulations 2013, SI 2013/1388, reg 7(1), (2). 20 Inserted by the Electronic Money Regulations 2011, SI 2011/99, reg 79, Sch 4, para 7(a). 21 Inserted by the Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013, SI 2013/472, art 3, Sch 2, para 1(1), (2)(b). 22 Substituted by the Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013, SI 2013/472, art 3, Sch 2, para 1(1), (2)(c), (d). 23 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 3(1), (2), (4). 24 Inserted by the Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013, SI 2013/504, reg 28(1), (2)(b). 25 Inserted by the Central Securities Depositories Regulations 2017, SI  2017/1064, reg  10, Schedule, para 18(1), (2). 26 Inserted by the Payment Services Regulations 2017, SI 2017/752, reg 156, Sch 8, para 6(a)(ii). 27 Repealed by the Alternative Investment Fund Managers Regulations 2013, SI  2013/1773, reg  81(1), Sch 2, para 2(1), (2). 28 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2007, SI 2007/2149, arts 2, 3. 29 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2006, SI 2006/2143, arts 2, 3(a). 30 Substituted by the Public Procurement (Amendments, Repeals and Revocations) Regulations 2016, SI 2016/275, reg 3, Sch 2, paras 25, 26(1), (4). 31 Repealed by the Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013, SI 2013/504, reg 28(1), (2)(a). 32 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012, SI 2012/1957, arts 2, 7. 33 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2008, SI 2008/3259, arts 2, 3(1)(c), (2).

271

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 34 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 3(1), (3). 35 Inserted by the Bank of England and Financial Services (Consequential Amendments) Regulations 2017, SI 2017/80, reg 2, Schedule, para 21. 36 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment No. 2) Order 1986, SI 1986/2268, art 2(1), Schedule, para 1.

[2A (1) For the purposes of this Order, a caution is a protected caution if it was given to a person for an offence other than a listed offence and— (a) where the person was under 18 years at the time the caution was given, two years or more have passed since the date on which the caution was given; or (b) where the person was 18 years or over at the time the caution was given, six years or more have passed since the date on which the caution was given. (2) For the purposes of this Order, a person’s conviction is a protected conviction if the conditions in paragraph (3) are satisfied and— (a) where the person was under 18 years at the time of the conviction, five years and six months or more have passed since the date of the conviction; or (b) where the person was 18 years or over at the time of the conviction, 11 years or more have passed since the date of the conviction. (3) The conditions referred to in paragraph (2) are that— (a) the offence of which the person was convicted was not a listed offence; (b) no sentence mentioned in paragraph (4) was imposed in respect of the conviction; and (c) the person has not been convicted of any other offence at any time. (4) The sentences referred to in paragraph (3)(b) are— (a) a custodial sentence, and (b) a sentence of service detention, within the meaning of section 5(8) of the Act, as to be substituted by section 139(1) and (4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. (5) In paragraphs (1) and (3)(a) ‘listed offence’ means— (a) an offence under section 67(1A) of the Medicines Act 1968; 272

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(b) an offence under any of sections 126 to 129 of the Mental Health Act 1983; (c) an offence specified in the Schedule to the Disqualification from Caring for Children (England) Regulations 2002; (d) an offence specified in Schedule 15 to the Criminal Justice Act 2003; (e) an offence under section 44 of, or under paragraph 4 of Schedule 1 or paragraph 4 of Schedule 4 to, the Mental Capacity Act 2005; (f) an offence under section 7, 9 or 19 of the Safeguarding Vulnerable Groups Act 2006; (g) an offence specified in section 17(3)(a), (b) or (c) of the Health and Social Care Act 2008, apart from an offence under section 76 of that Act; (h) an offence specified in the Schedule to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009; (i) an offence specified in Schedule  2 or 3 of the Childcare (Disqualification) Regulations 2009; (j)

an offence superseded (whether directly or indirectly) by any offence falling within paragraphs (a) to (i);

(k) an offence of— (i)

attempting or conspiring to commit any offence falling within paragraphs (a) to (j), or

(ii) inciting or aiding, abetting, counselling or procuring the commission of any such offence, or an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) committed in relation to any such offence; (l) an offence under the law of Scotland or Northern Ireland, or any country or territory outside the United Kingdom, which corresponds to any offence under the law of England and Wales falling within paragraphs (a) to (k); (m) an offence under section 42 of the Armed Forces Act 2006 in relation to which the corresponding offence under the law of England and Wales (within the meaning of that section) is an offence falling within paragraphs (a) to (k); or (n) an offence under section 70 of the Army Act 1955, section 70 of the Air Force Act 1955 or section 42 of the Naval Discipline Act 1957 of which the corresponding civil offence (within the meaning of that Act) is an offence falling within paragraphs (a) to (k).]1 273

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 Amendment 1 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 4.

3 [(1)]1 [[Subject to paragraph (2), neither]2 section 4(2) of, nor paragraph 3(3) of Schedule 2 to]3 the Act shall apply in relation to— (a) any question asked by or on behalf of any person, in the course of the duties of his office or employment, in order to assess the suitability— (i) of the person to whom the question relates for admission to any of the professions specified in Part I of Schedule 1 to this Order; or [(ii) of the person to whom the question relates for any office or employment specified in Part II of the said Schedule 1 [apart from one specified in paragraph [1,]4 6, 16, 17, 18, 18A, 31, 32, 35 or 36]1 or for any other work specified in paragraph [12A, 13, [13A,]5 14, 14A, [14AA,]4 [14B, 14C,]6 [14D,]6 [14E,]4 20, 21, …7 …8 [38, 40 or 43]9]10 of Part II of the said Schedule 1; or]11 (iii) of the person to whom the question relates or of any other person to pursue any occupation specified in Part III of the said Schedule 1 [apart from one specified in paragraph 1 or 8]1 or to pursue it subject to a particular condition or restriction; or (iv) of the person to whom the question relates or of any other person to hold a licence, certificate or permit of a kind specified in Schedule 2 to this Order [apart from one specified in [paragraph 1, 3 or 6]12]1 or to hold it subject to a particular condition or restriction, where the person questioned is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed; [[(aa) any question asked by or on behalf of any person, in the course of the duties of his work, in order to assess the suitability of a person to work with children, where— (i) the question relates to the person whose suitability is being assessed; (ii) the person whose suitability is being assessed lives on the premises where his work with children would normally take place and the question relates to a person living in the same household as him; 274

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(iii) the person whose suitability is being assessed lives on the premises where his work with children would normally take place and the question relates to a person who regularly works on those premises at a time when the work with children usually takes place; or (iv) the work for which the person’s suitability is being assessed is child minding which would normally take place on premises other than premises where that person lives and the question relates to a person who lives on those other premises or to a person who regularly works on them at a time when the child minding takes place, and where the person to whom the question relates is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed;]11]13 [(ab) …14]15 (b) …7 [(bb) any question asked by or on behalf of (i)

the Civil Aviation Authority,

(ii) any other person authorised to provide air traffic services under section 4 or section 5 of the Transport Act 2000 (in any case where such person is a company, an ‘authorised company’), (iii) any company which is a subsidiary (within the meaning given by section 736(1) of the Companies Act 1985) of an authorised company, or (iv) any company of which an authorised company is a subsidiary, where, in the case of sub-paragraphs (iii) and (iv) of this paragraph the question is put in relation to the provision of air traffic services, and in all cases, where the question is put in order to assess, for the purpose of safeguarding national security, the suitability of the person to whom the question relates or of any other person for any office or employment where the person questioned is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed for the purpose of safeguarding national security;]16 [(e) any question asked by or on behalf of any person in the course of his duties as a person employed by an adoption agency for the purpose of assessing the suitability of any person to adopt children in general or a child in particular where— (i) the question relates to the person whose suitability is being assessed; or 275

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(ii) the question relates to a person over the age of 18 living in the same household as the person whose suitability is being assessed, and where the person to whom the question relates is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed; [(ea) any question asked by or on behalf of any person in the course of his duties as a person employed by a local authority in England or Wales for the purpose of preparing a report for the court under section 14A(8) of the Children Act 1989 regarding the suitability of any person to be a special guardian, where— (i) the question relates to the person whose suitability is being assessed; or (ii) the question relates to a person over the age of 18 living in the same household as the person whose suitability is being assessed; and where the person to whom the question relates is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed;]6 (f) any question asked by or on behalf of any person, in the course of the duties of his work, in order to assess the suitability of a person to provide day care where— (i) the question relates to the person whose suitability is being assessed; or (ii) the question relates to a person who lives on the premises which are or are proposed to be day care premises, and where the person to whom the question relates is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed;]17 [(fa) any question asked by or on behalf of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills in assessing a person’s suitability for registration as a childminder agency under Part 3 of the Childcare Act 2006, where the person to whom the question relates is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed;]6 [(g) any question asked by, or on behalf of, the person listed in the second column of any entry in the table below to the extent that it relates to a conviction …18 (or any circumstances ancillary to …18 a conviction) of any individual, but only if— (i)

the person questioned is informed at the time the question is asked that, by virtue of this Order, spent convictions …18 are to be disclosed; and 276

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(ii) the question is asked in order to assess the suitability of the individual to whom the question relates to have the status specified in the first column of that entry. [Status 1. A person with Part 4A permission. 2. (a) A person in relation to whom an approval is given under section 59 of the 2000 Act (approval for particular arrangements). (b) An associate of the person (whether or not an individual) mentioned in sub-paragraph (a). 3. (a) The manager or trustee of an authorised unit trust scheme (within the meaning of section 237 of the 2000 Act). (b) An associate of the person (whether or not an individual) mentioned in sub-paragraph (a). [3A (a) The operator or depositary of an authorised contractual scheme (within the meaning of section 237(3) of the 2000 Act). (b) An associate of the person (whether or not an individual) mentioned in sub-paragraph (a). 4. (a) A director of an open-ended investment company. (b) An associate of the person (whether or not an individual) mentioned in sub-paragraph (a). 5. An associate of the operator or trustee of a relevant collective investment scheme. [6. An associate of a UK recognised investment exchange[, recognised clearing house or recognised CSD]20.

Questioner The FCA, the PRA or the Bank of England. The FCA, the PRA or the authorised person (within the meaning of section 31(2) of the 2000 Act) or the applicant for Part 4A permission who made the application for the approval of the appropriate regulator (within the meaning of section 59(4) of the 2000 Act) under section 59 of the 2000 Act in relation to the person mentioned in sub-paragraph (a) of the first column. The FCA or the unit trust scheme mentioned in the first column.

The FCA.]19

The FCA, the PRA or the open-ended investment company mentioned in the first column.

The FCA, the PRA or the collective investment scheme mentioned in the first column. The FCA, the PRA, the Bank of England or the investment exchange[, clearing house or CSD]20 mentioned in the first column.]21

277

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 [Status Questioner 7. A controller of a person with Part 4A The FCA, the PRA or the person with permission Part 4A permission mentioned in the first column. 8. (a) A person who carries on a The FCA or the PRA. regulated activity (within the meaning of section 22 of the 2000 Act) but to whom the general prohibition does not apply by virtue of section 327 of the 2000 Act (exemption from the general prohibition for members of a designated professional body). (b) An associate of the person In the case of a person mentioned in (whether or not an individual) sub-paragraph (b) of the first column, mentioned in sub-paragraph the person mentioned in sub-paragraph (a). (a) of that column. 9. A key worker of the FCA, the PRA The FCA, the PRA or the Bank of or the Bank of England. England. 10. An ombudsman (within the The scheme operator (within the meaning of Schedule 17 to the 2000 meaning of section 225 of the 2000 Act) of the Financial Ombudsman Act) of the Financial Ombudsman Service. Service. 11. An associate of the issuer of The FCA. securities which have been admitted to the official list maintained by the FCA for listing under section 74 of the 2000 Act. 12. A sponsor (within the meaning of The FCA. section 88(2) of the 2000 Act). 13. (a) A Primary information The FCA or the PRA. provider (within the meaning of section 89P of the 2000 Act). (b) An associate of the person In the case of a person mentioned (whether or not an individual) in sub-paragraph (2) of the first mentioned in sub-paragraph column, the person mentioned in sub(a). paragraph (1) of that column. 14. An associate of a person who (a) The Council of Lloyd’s. has Part 4A permission and who is (b) The person with Part 4A permission admitted to Lloyd’s as an underwriting specified in the first column (or a agent (within the meaning of section 2 person applying for such permission). of Lloyd’s Act 1982).

278

SI 1975/1023 [Status 15. An associate of the Council of Lloyd’s. [16. (a) A member of a UK recognised investment exchange[, recognised clearing house or recognised CSD]20. (b) Any associate of the person (whether or not an individual) mentioned in sub-paragraph (a). 17. A director or person responsible for the management of the electronic money or payment services business of an electronic money institution. 18. A controller of an electronic money institution. 19. A director or a person responsible for the management of an authorised payment institution[, a registered account information service provider]22 or a small payment institution. 20. A person responsible for the management of payment services provided, or to be provided, by an authorised payment institution[, a registered account information service provider]22 or a small payment institution. 21. A controller of an authorised payment institution[, a registered account information service provider]22 or a small payment institution.

Questioner The Council of Lloyd’s. The UK recognised investment exchange[, recognised clearing house or recognised CSD]20 specified in the first column.]21 In the case of a person mentioned in sub-paragraph (b) of the first column, the person mentioned in sub-paragraph (a) of that column. The FCA.

The FCA. The FCA.

The FCA.

The FCA.]23]24

[(h) any question asked by or on behalf of the [Gambling Commission]25 for the purpose of determining whether to grant or revoke a licence under Part I of the National Lottery etc. Act 1993 where the question relates to an individual— (i) who manages the business or any part of the business carried on under the licence (or who is likely to do so if the licence is granted), or (ii) for whose benefit that business is carried on (or is likely to be carried on if the licence is granted), 279

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and where the person to whom the question relates is informed at the time that the question is asked that, by virtue of this Order, spent convictions are to be disclosed;]16 [(i) any question asked by or on behalf of [Social Care Wales]26 for the purpose of determining whether or not to grant an application for registration under [Part 4 of the Regulation and Inspection of Social Care (Wales) Act 2016]26, where the person questioned is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed;]27 [[[(j) any question asked by or on behalf of a contracting authority or utility in relation to a conviction for an offence listed in regulation 57(1) of the Public Contracts Regulations 2015 or regulation 38(8) of the Concession Contracts Regulations 2016 which is a spent conviction (or any circumstances ancillary to such a conviction) for the purpose of determining whether or not a person is excluded— (i) for the purposes of regulation 57 of the Public Contracts Regulations 2015, (ii) from participation in a design contest for the purposes of regulation 80 of the Public Contracts Regulations 2015, (iii) for the purposes of regulation 80 of the Utilities Contracts Regulations 2016, (iv) from participation in a design contest for the purposes of regulation 96 of the Utilities Contracts Regulations 2016, or (v) for the purposes of regulation 38 of the Concession Contracts Regulations 2016, where the person questioned is informed at the time the question is asked that, by virtue of this Order, spent convictions for such offences are to be disclosed;]28 (ja) …29]30 (k) any question asked, by or on behalf of the Football Association[, Football League]31 or Football Association Premier League in order to assess the suitability of the person to whom the question relates or of any other person to be approved as able to undertake, in the course of acting as a steward at a sports ground at which football matches are played or as a supervisor or manager of such a person, licensable conduct within the meaning of the Private Security Industry Act 2001 without a licence issued under that Act, in accordance with …32 section 4 of that Act;]33 [(l) any question asked by the [Disclosure and Barring Service]9 for the purpose of considering the suitability of an individual to have access 280

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to information released under sections 113A and 113B of the Police Act 1997;]34 [(m) any question asked by or on behalf of the Master Locksmiths Association for the purposes of assessing the suitability of any person who has applied to be granted membership of that Association; (n) any question asked by or on behalf of the Secretary of State for the purpose of assessing the suitability of any person or body to obtain or retain a licence under regulation 5 of the Misuse of Drugs Regulations 2001 or under Article 3(2) of Regulation 2004/273/ EC or under article 6(1) of Regulation 2005/111/EC where— (i)

the question relates to the holder of, or an applicant for, such a licence or any person who as a result of his role in the company or other body concerned is required to be named in the application for such a licence (or would have been so required if that person had had that role at the time the application was made), and

(ii) any person to whom the question relates is informed at the time the question is asked that by virtue of this Order, spent convictions are to be disclosed;]35 [(o) any question asked by or on behalf of any body which is a licensing authority within the meaning of section 73(1) of the Legal Services Act 2007 (licensing authorities and relevant licensing authorities) where— (i) it is asked in order to assess whether, for the purposes of Schedule 13 to that Act (ownership of licensed bodies), the approval requirements are met in relation to a person’s holding of a restricted interest in a licensed body; and (ii) the person to whom the question relates is informed at the time that the question is asked that, by virtue of this Order, spent convictions are to be disclosed.]36 [(2) Paragraph (1) does not apply in relation to a protected caution or a protected conviction.]1 Amendments 1 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 5(a), (c), (e). 2 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 5(b). 3 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2008, SI 2008/3259, arts 2, 4. 4 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2016, SI 2016/824, art 2(1), (2), (3)(a). 5 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2015, SI 2015/317, art 2(1), (2).

281

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 6 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2014, SI 2014/1707, arts 2, 4. 7 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 5(c)(i), (d). 8 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012, SI 2012/1957, arts 2, 8. 9 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 18, 19, 69, 70. 10 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2009, SI 2009/1818, arts 2, 4(1). 11 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2001, SI 2001/1192, arts 2, 4(1), (2). 12 Substituted by the Control of Explosives Precursors Regulations 2014, SI 2014/1942, reg 17(1), (2). 13 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 1986, SI 1986/1249, art 2, Schedule, para 1. 14 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (No. 2) Order 2001, SI 2001/3816, arts 2, 4(1), (2). 15 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment No. 2) Order 1986, SI 1986/2268, art 2(1), Schedule, para 2. 16 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2002, SI 2002/441, arts 2, 3(3), (4). 17 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2001, SI 2001/1192, arts 2, 4(3). 18 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2007, SI 2007/2149, arts 2, 4(2), (3). 19 Inserted by the Collective Investment in Transferable Securities (Contractual Scheme) Regulations 2013, SI 2013/1388, reg 7(1), (3). 20 Substituted by the Central Securities Depositories Regulations 2017, SI 2017/1064, reg 10, Schedule, para 18(1), (3). 21 Substituted by the Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013, SI 2013/504, reg 28(1), (3). 22 Inserted by the Payment Systems and Services and Electronic Money (Miscellaneous Amendments) Regulations 2017, SI 2017/1173, art 3. 23 Substituted by the Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013, SI 2013/472, art 3, Sch 2, para 1(1), (3). 24 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (No. 2) Order 2001, SI 2001/3816, arts 2, 4(1), (4). 25 Substituted by the Public Bodies (Merger of the Gambling Commission and the National Lottery Commission) Order 2013, SI 2013/2329, art 4(2), Schedule, para 30. 26 Substituted by the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments to Secondary Legislation) Regulations 2017, SI 2017/52, reg 2, Sch 1, para 1(1), (2). 27 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2003, SI 2003/965, arts 2, 5. 28 Substituted by the Public Procurement (Amendments, Repeals and Revocations) Regulations 2016, SI 2016/275, reg 3, Sch 2, paras 25, 27. 29 Repealed by the Public Procurement (Amendments, Repeals and Revocations) Regulations 2016, SI 2016/275, reg 3, Sch 2, paras 25, 28. 30 Substituted by the Public Contracts Regulations 2015, SI 2015/102, reg 116(b), Sch 6, para 10. 31 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment No. 2) (England and Wales) Order 2006, SI 2006/3290, art 2(1), (2)(a). 32 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment No. 2) (England and Wales) Order 2006, SI 2006/3290, art 2(1), (2)(b). 33 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2006, SI 2006/2143, arts 2, 4. 34 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2007, SI 2007/2149, arts 2, 4(4). 35 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2009, SI 2009/1818, arts 2, 4(2). 36 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) (No.2) Order 2011, SI 2011/2865, art 2.

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[3ZA Neither section 4(2) of, nor paragraph 3(3) of Schedule 2 to, the Act applies in relation to— (a) any question asked by or on behalf of any person, in the course of the duties of his office or employment, in order to assess the suitability— (i) of the person to whom the question relates for an office or employment specified in paragraph [1,]1 6, 16, 17, 18, 18A, 31, 32, 35 or 36 of Part II of that Schedule or for any other work specified in paragraph 35 or 36 of that Part of that Schedule; or (ii) of the person to whom the question relates or of any other person to pursue an occupation specified in paragraph 1 or 8 of Part III of that Schedule or to pursue it subject to a particular condition or restriction; or (iii) of the person to whom the question relates or of any other person to hold a licence, certificate or permit of a kind specified in [paragraph 1, 3 or 5]2 of Schedule 2 to this Order or to hold it subject to a particular condition or restriction, where the person questioned is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed; or (b) any question asked by or on behalf of any person, in the course of his duties as a person employed in the service of the Crown, the United Kingdom Atomic Energy Authority or the FCA or the PRA in order to assess, for the purpose of safeguarding national security, the suitability of the person to whom the question relates or of any other person for any office or employment where the person questioned is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed for the purpose of safeguarding national security.]3 Amendments 1 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2016, SI 2016/824, art 2(1), (3)(b). 2 Substituted by the Control of Explosives Precursors Regulations 2014, SI 2014/1942, reg 17(1), (3). 3 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 6.

[3A (1) [Subject to paragraph (1A), neither]1 section 4(2) of, nor paragraph 3(3) of Schedule 2 to, the Act applies to a question to which paragraph (2) or (3) applies. 283

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[(1A) Paragraph (1) does not apply in relation to a protection caution or a protected conviction.]2 (2) This paragraph applies to any question asked by or on behalf of any person (‘A’), in the course of the duties of A’s office or employment, in order to assess the suitability of the person to whom the question relates (‘B’) for any work which is a controlled activity relating to children within the meaning of section 21 of the 2006 Act [as it had effect immediately before the coming into force of section 68 of the Protection of Freedoms Act 2012]3, where the person questioned is told at the time the question is asked, that by virtue of this Order, spent convictions are to be disclosed but only if that person knows that B— (a) is a person barred from regulated activity relating to children within the meaning of section 3(2) of the 2006 Act; (b) is included in the list kept under section 1 of the Protection of Children Act 1999; or (c) is subject to a direction made under section 142 of the Education Act 2002. (3) This paragraph applies to any question asked by or on behalf of any person (‘A’), in the course of the duties of A’s office or employment, in order to assess the suitability of the person to whom the question relates (‘B’) for any work which is a controlled activity relating to vulnerable adults within the meaning of section 22 of the 2006 Act [as it had effect immediately before the coming into force of section 68 of the Protection of Freedoms Act 2012]3, where the person questioned is told at the time the question is asked, that by virtue of this Order, spent convictions are to be disclosed but only if that person knows that B— (a) is a person barred from regulated activity relating to vulnerable adults within the meaning of section 3(3) of the 2006 Act; or (b) is included in the list kept under section 81 of the Care Standards Act 2000.]4 Amendments 1 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 7(a). 2 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 7(b). 3 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012, SI 2012/1957, arts 2, 9. 4 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2010, SI 2010/1153, arts 2, 3.

4 [(1)]1 [[Subject to paragraph (2), neither]2 paragraph (b) of section 4(3) of, nor paragraph 3(5) of Schedule 2 to, the Act shall apply]3 in relation to— 284

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(a) the dismissal or exclusion of any person from any profession specified in Part I of Schedule 1 to this Order; [(b) any office, employment or occupation specified in Part II [of that Schedule apart from one specified in paragraph [1,]4 6, 16, 17, 18, 18A, 31, 32, 35 or 36 or in Part III of that Schedule apart from one specified in paragraph 1 or 8]2 or any other work specified in paragraph [12A, 13, [13A,]5 14, 14A, [14AA,]4 [14B, 14C,]6 [14D,]6 [14E,]4 20, 21, …7 …8 40, 43 or 44]9 of Part II of the said Schedule 1;]10 (c) …7 [[(d) [any decision by the FCA, the PRA or the Bank of England]11– (i) to refuse an application for [Part 4A permission]11 under the 2000 Act, (ii) to vary or to cancel such permission (or to refuse to vary or cancel such permission) or to impose a requirement under [section 55L, 55M or 55O]11 of that Act or, (iii) to make, or to refuse to vary or revoke, an order under section 56 of that Act (prohibition orders), (iv) to refuse an application for …12 approval under section 59 of that Act or to withdraw such approval, (v) to refuse to make, or to revoke, an order declaring a unit trust scheme to be an authorised unit trust scheme under section 243 of the 2000 Act or to refuse to give its approval under section 251 of the 2000 Act to a proposal to replace the manager or trustee of such a scheme, (vi) to give a direction under section 257 of the 2000 Act (authorised unit trust schemes), or to vary (or to refuse to vary or revoke) such a direction, [(via) to refuse to make, or to revoke, an order declaring a contractual scheme to be an authorised contractual scheme under section 261D of the 2000 Act or to refuse to give its approval under section 261Q of the 2000 Act to a proposal to replace the operator or depositary of such a scheme, (vib) to give a direction under section 261X of the 2000 Act or to vary (or to refuse to vary or revoke) such a direction,]13 (vii) to refuse to make, or to revoke, an authorisation order under regulation 14 of the Open-Ended Investment Companies Regulations 2001 or to refuse to give its approval under regulation 21 of those Regulations to a proposal to replace a 285

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director or to appoint an additional director of an open-ended investment company, (viii) to give a direction to an open-ended investment company under regulation 25 of those Regulations or to vary (or refuse to vary or revoke) such a direction, (ix) …14 to refuse to make, or to revoke, an order declaring a collective investment scheme to be a recognised scheme under section 272 of [the 2000 Act]15, (x) to refuse to make, or to revoke, a recognition order under section 290 of the 2000 Act, otherwise than by virtue of section 292(2) of that Act, [to refuse to vary a recognition order under section 290ZA(1) of the 2000 Act, to vary a recognition order under section 290ZA(2) of the 2000 Act,]16 [to refuse to grant an authorisation of the sort referred to in section 290ZB(1) (a) of the 2000 Act, to withdraw an authorisation of the sort referred to in section 290ZB(1)(c) of the 2000 Act,]17 or to give a direction to a UK recognised investment exchange[, recognised clearing house or recognised CSD]18 under section 296 [or 296A]19 of the 2000 Act, (xi) to make, or to refuse to vary or to revoke, an order under section 329 (orders in respect of members of a designated professional body in relation to the general prohibition), …20 (xii) to dismiss, fail to promote or exclude a person from being a key worker of [the FCA or the PRA]11, [(xiii) to refuse an application for registration as an authorised electronic money institution or a small electronic money institution under the Electronic Money Regulations 2011, …21 (xiv) to vary or cancel such registration (or to refuse to vary or cancel such registration) or to impose a requirement under regulation 7 of those Regulations,]22 [(xv) to refuse an application for registration as an authorised payment institution[, a registered account information service provider]23 or a small payment institution under the Payment Services Regulations [2017]24, …12 (xvi) to vary or cancel such registration (or to refuse to vary or cancel such registration) or to impose a requirement under regulation 7 of those Regulations,]25 [(xvii) in a case requiring any decision referred to in paragraphs (i) to (xvi), where the FCA, the PRA or the Bank of England has the function of deciding whether to give consent 286

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or conditional consent in relation to the decision which is proposed in that case, to give or refuse to give consent or to give conditional consent, or (xviii) in a case requiring any decision referred to in paragraphs (i) to (xvi), where the FCA, the PRA or the Bank of England has the power under the 2000 Act to direct another regulator as to the decision to be taken in that case, to decide whether to give a direction and, if a direction is to be given, what direction to give,]19 by reason of, or partly by reason of, a spent conviction of an individual …26, or of any circumstances ancillary to such a conviction or of a failure (whether or not by that individual) to disclose such a conviction or any such circumstances; (e) any decision by the scheme operator (within the meaning of section 225 of the 2000 Act) of the Financial Ombudsman Service to dismiss, or not to appoint, an individual as, an ombudsman (within the meaning of Schedule 17 to the 2000 Act) of the Financial Ombudsman Service by reason of, or partly by reason of, his spent conviction …26, or of any circumstances ancillary to such a conviction or of a failure (whether or not by that individual) to disclose such a conviction or any such circumstances; (f)

[any decision of the FCA]11– (i) to refuse an application for listing under Part VI of the 2000 Act or to discontinue or suspend the listing of any securities under section 77 of that Act, (ii) to refuse to grant a person’s application for approval as a sponsor under section 88 of the 2000 Act or to cancel such approval, …12 (iii) to dismiss, fail to promote or exclude a person from being a key worker of [the FCA in relation to the exercise of its functions under Part 6 of the 2000 Act, or]11 [(iv) to refuse to grant a person’s application under information provider rules (within the meaning of section 89P(9) of the 2000 Act) for approval as a Primary information provider, to impose limitations or other restrictions on the giving of information to which such an approval relates or to cancel such an approval,]19

by reason of, or partly by reason of, a spent conviction of an individual …26, or of any circumstances ancillary to such a conviction or of a failure (whether or not by that individual) to disclose such a conviction or any such circumstances; 287

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(g) any decision of anyone who is specified in any of sub-paragraphs 2 to 4 or 5 to 7 of the second column of the table in article 3(g), other than [the FCA or the PRA]11, to dismiss an individual who has, or to fail to promote or exclude an individual who is seeking to obtain, the status specified in the corresponding entry in the first column of that table (but not, where applicable, the status of being an associate of another person), by reason of, or partly by reason of, a spent conviction of that individual or of his associate …26, or of any circumstances ancillary to such a conviction or of a failure (whether or not by that individual) to disclose such a conviction or any such circumstances; (h) any decision of anyone who is specified in sub-paragraph 8(a), 14(a) or 16(a) of the second column of the table in article 3(g) to dismiss an individual who has, or to fail to promote or exclude an individual who is seeking to obtain, the status specified in the corresponding entry in sub-paragraph (b) of the first column of that table (associate), by reason of, or partly by reason of, a spent conviction of that individual …26, or of any circumstances ancillary to such a conviction or of a failure (whether or not by that individual) to disclose such a conviction or any such circumstances; (i)

any decision of the Council of Lloyd’s– (i)

to refuse to admit any person as, or to exclude, an underwriting agent (within the meaning of section 2 of Lloyd’s Act 1982), where that person has, or who has applied for, [Part 4A permission]11, or

(ii) to dismiss, or to exclude a person from being, an associate of the Council of Lloyd’s, by reason of, or partly by reason of, a spent conviction of an individual …26, or of any circumstances ancillary to such a conviction or of a failure (whether or not by that individual) to disclose such a conviction or any such circumstances; (j)

any decision of a UK recognised investment exchange[, recognised clearing house or recognised CSD]18 to refuse to admit any person as, or to exclude, a member by reason of, or partly by reason of, a spent conviction of an individual …26, or of any circumstances ancillary to such a conviction or of a failure (whether or not by that individual) to disclose such a conviction or any such circumstances;]27]28

[(ja) any decision by the relevant registration authority, as defined by section 5 of the Care Standards Act 2000, to refuse to grant an application for registration under Part 2 of that Act or to suspend or remove or refuse to restore a person’s registration under that Part of that Act;]6 288

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[(jb) any decision by the Welsh Ministers— (i)

to refuse an application for registration under section 7 of the 2016 Act,

(ii) to refuse (under section 12 of the 2016 Act) an application made by a person under section 11(1)(a)(i) or (ii) of the 2016 Act to vary their registration, (iii) to cancel a person’s registration under section 15(1)(b) to (f) or 23(1) of the 2016 Act, (iv) to vary a person’s registration under section 13(3)(b) or (4)(b) or 23(1) of the 2016 Act;]29 [(k) any decision by [Social Care Wales]30 to refuse to grant an application for registration under [Part 4 of the Regulation and Inspection of Social Care (Wales) Act 2016]30 or to suspend, remove or refuse to restore a person’s registration under that Part; [(ka) any decision of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills to refuse to grant a person’s application for registration as a childminder agency or to suspend, cancel or impose a condition on a person’s registration as a childminder agency under Part 3 of the Childcare Act 2006;]6 (l) any decision to refuse to grant a taxi driver licence, to grant such a licence subject to conditions or to suspend, revoke or refuse to renew such a licence; (m) any decision by the Security Industry Authority to refuse to grant a licence under section 8 of the Private Security Industry Act 2001, to grant such a licence subject to conditions, to modify such a licence (including any of the conditions of that licence) or to revoke such a licence;]31 [(n) any decision by the Football Association[, Football League]32 or Football Association Premier League to refuse to approve a person as able to undertake, in the course of acting as a steward at a sports ground at which football matches are played or as a supervisor or manager of such a person, licensable conduct within the meaning of the Private Security Industry Act 2001 without a licence issued under that Act, in accordance with …33 section 4 of that Act.]34 [(2) Paragraph (1) does not apply in relation to a protected caution or a protected conviction.]1 Amendments 1 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 8(a), (e).

289

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 2 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 8(b), (c)(i). 3 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2008, SI 2008/3259, arts 2, 5. 4 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2016, SI 2016/824, art 2(1), (2), (3)(c). 5 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2015, SI 2015/317, art 2(1), (3). 6 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2014, SI 2014/1707, arts 2, 5. 7 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 8(c)(ii), (d). 8 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012, SI 2012/1957, arts 2, 8. 9 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2009, SI 2009/1818, arts 2, 5. 10 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2001, SI 2001/1192, arts 2, 5. 11 Substituted by the Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013, SI 2013/472, art 3, Sch 2, para 1(1), (4)(a)(i)-(iii), (vi), (b)(i), (iii), (c), (d). 12 Repealed by the Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013, SI 2013/472, art 3, Sch 2, para 1(1), (4)(a)(iv), (viii), (b)(ii). 13 Inserted by the Collective Investment in Transferable Securities (Contractual Scheme) Regulations 2013, SI 2013/1388, reg 7(1), (4). 14 Repealed by the Alternative Investment Fund Managers Regulations 2013, SI 2013/1773, reg 81(1), Sch 2, para 2(1), (3)(a). 15 Substituted by the Alternative Investment Fund Managers Regulations 2013, SI 2013/1773, reg 81(1), Sch 2, para 2(1), (3)(b). 16 Inserted by the Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013, SI 2013/504, reg 28(1), (4)(a)(ii). 17 Inserted by the Central Securities Depositories Regulations 2017, SI 2017/1064, reg 10, Schedule, para 18(1), (4)(a)(i). 18 Substituted by the Central Securities Depositories Regulations 2017, SI 2017/1064, reg 10, Schedule, para 18(1), (4)(a)(ii), (b). 19 Inserted by the Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013, SI 2013/472, art 3, Sch 2, para 1(1), (4)(a)(v), (vii), (b)(iv). 20 Repealed by the Electronic Money Regulations 2011, SI 2011/99, reg 79, Sch 4, para 7(c). 21 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2011/1800, art 2(1), (4)(a). 22 Inserted by the Electronic Money Regulations 2011, SI 2011/99, reg 79, Sch 4, para 7(c). 23 Inserted by the Payment Services Regulations 2017, SI 2017/752, reg 156, Sch 8, para 6(b)(i). 24 Substituted by the Payment Services Regulations 2017, SI 2017/752, reg 156, Sch 8, para 6(b)(ii). 25 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2011/1800, art 2(1), (4)(b). 26 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2007, SI 2007/2149, arts 2, 5(1). 27 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (No. 2) Order 2001, SI 2001/3816, arts 2, 5. 28 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment No. 2) Order 1986, SI 1986/2268, art 2(1), Schedule, para 3. 29 Inserted by the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments to Secondary Legislation) Regulations 2019, SI 2019/237, reg , Sch 1, para 1(1), (3). 30 Substituted by the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments to Secondary Legislation) Regulations 2017, SI 2017/52, reg 2, Sch 1, para 1(1), (2). 31 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2003, SI 2003/965, arts 2, 7. 32 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment No. 2) (England and Wales) Order 2006, SI 2006/3290, art 2(1), (2)(a).

290

SI 1975/1023 33 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment No. 2) (England and Wales) Order 2006, SI 2006/3290, art 2(1), (2)(b). 34 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2006, SI 2006/2143, arts 2, 5.

[4ZA Neither paragraph (b) of section 4(3) of, nor paragraph 3(5) of Schedule 2 to, the Act applies in relation to— (a) any office, employment or occupation specified in paragraph [1,]1 6, 16, 17, 18, 18A, 31, 32, 35 or 36 of Part II of that Schedule or paragraph 1 or 8 of Part III of that Schedule or any other work specified in paragraph 35 or 36 of Part II of that Schedule; (b) any action taken for the purpose of safeguarding national security.]2 Amendments 1 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2016, SI 2016/824, art 2(1), (3)(d). 2 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 9.

[4A (1) Section 4(2) of the Act shall not apply to a question asked by or on behalf of any person, in the course of the duties of the person’s office or employment, in order to assess whether the person to whom the question relates is disqualified by reason of section 66(3)(c) of the 2011 Act from being elected as, or being, a police and crime commissioner. (2) Section 4(3)(a) of the Act shall not apply in relation to any obligation to disclose any matter if the obligation is imposed in order to assess whether a person is disqualified by reason of section 66(3)(c) of the 2011 Act from being elected as, or being, a police and crime commissioner. (3) Section 4(3)(b) of the Act shall not apply in relation to the disqualification of a person from being elected as, or being, a police and crime commissioner under section 66(3)(c) of the 2011 Act. (4) In this article— ‘the 2011 Act’ means the Police Reform and Social Responsibility Act 2011; and ‘police and crime commissioner’ means a police and crime commissioner established under section 1 of the 2011 Act.]1 Amendment 1 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012, SI 2012/1957, arts 2, 3.

291

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[5 (1) [Neither section 4(1) of, nor paragraph 3(1) of Schedule 2 to, the Act shall]1 (a) apply in relation to any proceedings specified in Schedule 3 to this Order; (b) apply in relation to any proceedings specified in paragraph (2) below to the extent that there falls to be determined therein any issue relating to a person’s spent conviction …2 or to circumstances ancillary thereto; (c) prevent, in any proceedings specified in paragraph (2) below, the admission or requirement of any evidence relating to a person’s spent conviction …2 or to circumstances ancillary thereto. [(2) The proceedings referred to in paragraph (1) above are any proceedings with respect to a decision or proposed decision of the kind specified in article [4(1)(d) to (n)]3.]4]5 Amendments 1 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2008, SI 2008/3259, arts 2, 6. 2 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2007, SI 2007/2149, arts 2, 6. 3 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2015, SI 2015/317, art 2(1), (4). 4 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (No. 2) Order 2001, SI 2001/3816, arts 2, 6. 5 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment No. 2) Order 1986, SI 1986/2268, art 2(1), Schedule, para 4.

[[6 (1) Neither section 4(2) of, nor paragraph 3(3) of Schedule 2 to, the Act applies to a question to which paragraph (2) applies. (2) This paragraph applies to a question asked by or on behalf of any person in the course of that person’s office or employment in the Channel Islands or the Isle of Man in order to assess the suitability of the person to whom the question relates for any purposes referred to in article 3[, 3ZA]1 or 3A, where— (a) the person asking the question states that a corresponding question and purpose are also provided for in— (i) the Rehabilitation of Offenders (Exceptions) (Jersey) Regulations 2002 (‘the Jersey Regulations’); (ii) the Rehabilitation of Offenders (Bailiwick of Guernsey) Law 2002 (Commencement, Exclusions and Exceptions) Ordinance 2006 (‘the Guernsey Ordinance’); or (iii) the Rehabilitation of Offenders Act 2001 (Exceptions) Order 2001 (‘the Isle of Man Exceptions Order’), and 292

SI 1975/1023, Schedule 1

(b) the person questioned is one to whom article 3 or 3A would apply [in relation to the caution or conviction in question, or paragraph 3ZA would apply,]1 and is informed at the time the question is asked that spent convictions are to be disclosed. (3) Neither subsection (1) or (3) of section 4 of, nor paragraph 3(1) or (5) of Schedule 2 to, the Act apply to a question to which paragraph (4) applies. (4) This paragraph applies to a question asked by or on behalf of any person in the course of that person’s office or employment in the Channel Islands or the Isle of Man in respect of a case or class of case and conviction specified in article 4 [or 4ZA]1 or for a purpose mentioned in article 5, where the person asking the question states that the Jersey Regulations or the Guernsey Ordinance or the Isle of Man Exceptions Order provides for a corresponding case or class of case and conviction or a corresponding purpose, and the person questioned is a person to whom [article 4 or 4ZA would apply in relation to the caution or conviction in question, or article 5 would apply]1.]2]3 Amendments 1 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 10. 2 Substiuted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2010, SI 2010/1153, arts 2, 4. 3 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2009, SI 2009/1818, arts 2, 6.

Schedule 1 [Excepted professions, offices, employments, work and occupations]1 Articles 2(3), 3 and 4

Part I Professions [1 Health care professional.]2 2 Barrister (in England and Wales), …3 solicitor. 3 Chartered accountant, certified accountant. 293

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[4 …4]5 5 Veterinary surgeon. 6 …4 7 …4 [8 …4 [8A …4]6 8A …4]7 9 …3 10 …4 [11 …4]8 [12 …4]9 [13 …10 14 Actuary. 294

SI 1975/1023, Schedule 1

15 Registered foreign lawyer. [16 Chartered legal executiveor other CILEx authorised person.]11 17 Receiver appointed by the Court of Protection.]12 [18 Home inspector.]13 Amendments 1 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2001, SI 2001/1192, arts 2, 6(1). 2 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012, SI 2012/1957, arts 2, 6(1), (2)(a). 3 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 11(1), (2). 4 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012, SI 2012/1957, arts 2, 6(1), (2)(b). 5 Substituted by the Health Care and Associated Professions (Miscellaneous Amendments and Practitioner Psychologists) Order 2009, SI 2009/1182, art 4(1), Sch 4, para 37(a). 6 Inserted by the Health Care and Associated Professions (Miscellaneous Amendments and Practitioner Psychologists) Order 2009, SI 2009/1182, art 4(1), Sch 4, para 28(a). 7 Substituted by the Pharmacists and Pharmacy Technicians Order 2007, SI 2007/289, art 67, Sch 1, para 12(a). 8 Inserted by the Osteopaths Act 1993, s 39(2). 9 Inserted by the Chiropractors Act 1994, s 40(2). 10 Repealed by the Health Care and Associated Professions (Miscellaneous Amendments and Practitioner Psychologists) Order 2009, SI 2009/1182, art 4(1), Sch 4, para 1(a). 11 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2014, SI 2014/1707, arts 2, 6(a). 12 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2002, SI 2002/441, arts 2, 5(1). 13 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2006, SI 2006/2143, arts 2, 6.

Part II [Offices, employments and work]1 1 Judicial appointments. [2 The Director of Public Prosecutions and any office or employment in the Crown Prosecution Service.]2 295

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3 …3 [4 [Designated officers for magistrates’ courts, for justices of the peace or for local justice areas]4, justices’ clerks [and assistants to justices’ clerks]5.]1 5 …6 [6 Constables and persons appointed as police cadets to undergo training with a view to becoming constables and naval, military and air force police. 6A Persons employed for the purposes of, or to assist the constables of, a police force established under any enactment.]7 7 Any employment which is concerned with the administration of, or is otherwise normally carried out wholly or partly within the precincts of, a prison, remand centre, [removal centre, short-term holding facility,]8 detention centre, Borstal institution or young offenders institution, and members of boards of visitors appointed under section 6 of the Prison Act 1952 …6. 8 Traffic wardens appointed under section 81 of the Road Traffic Regulation Act 1967 …6. [9 Officers of providers of probation services as defined in section 9 of the Offender Management Act 2007.]9 10 …10 11 …10 296

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[12 Any office or employment which is concerned with: (a) the provision of care services to vulnerable adults; or (b) the representation of, or advocacy services for, vulnerable adults by a service that has been approved by the Secretary of State or created under any enactment; and which is of such a kind as to enable a person, in the course of his normal duties, to have access to vulnerable adults in receipt of such services.]5 [12A Any work which is regulated activity relating to vulnerable adults within the meaning of Part 2 of Schedule 4 to the 2006 Act [including that Part]11 [as it had effect immediately before the coming into force of section 66 of the Protection of Freedoms Act 2012]12.]13 [13 Any employment or other work which is concerned with the provision of health services and which is of such a kind as to enable the holder of that employment or the person engaged in that work to have access to persons in receipt of such services in the course of his normal duties.]1 [13A Any employment or other work in England or Wales concerned with— (a) the investigation of fraud, corruption or other unlawful activity affecting the national health service, or (b) security management in the national health service, where ‘the national health service’ means, in respect of England, the health service continued under section 1(1) of the National Health Service Act 2006 and, in respect of Wales, that continued under section 1(1) of the National Health Service (Wales) Act 2006.]11 [14 Any work which is— (a) work in a regulated position; or (b) work in a further education institution [or 16 to 19 Academy]14 where the normal duties of that work involve regular contact with persons aged under 18.]1 297

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[14AA Any work done infrequently which, if done frequently, would be regulated activity relating to children within the meaning of Part 1 of Schedule 4 to the 2006 Act including that Part as it had effect immediately before the coming into force of section 64 of the Protection of Freedoms Act 2012.]15 [14A Any work which is regulated activity relating to children within the meaning of Part 1 of Schedule 4 to the 2006 Act [including that Part]11 [as it had effect immediately before the coming into force of section 66 of the Protection of Freedoms Act 2012]12.]13 [14B Any employment or other work that is carried out at a children’s home or residential family centre. 14C Any employment or other work which is carried out for the purposes of an adoption service, an adoption support agency, a voluntary adoption agency, a fostering service or a fostering agency and which is of such a kind as to enable a person, in the course of his normal duties, to have contact with children or access to sensitive or personal information about children.]16 [14D Any employment or office which is concerned with the management of a childminder agency or any work for a childminder agency which is of such a kind as to require the person engaged in that work to enter day care premises or premises on which child minding is provided and as to enable the person, in the course of his normal duties, to have contact with children for whom child minding or day care is provided or access to sensitive or personal information about children for whom childminding or day care is provided.]16 [14E [The Director General, or any member or member of staff, of the Independent Office for Police Conduct]17 who in the course of his normal duties— (a) has contact with vulnerable adults; or (b) has access to sensitive or personal information about children or vulnerable adults.]15 298

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[15 Any employment in the Royal Society for the Prevention of Cruelty to Animals where the person employed or working, as part of his duties, may carry out the [humane]8 killing of animals. 16 Any office or employment in the Serious Fraud Office. 17 Any office or employment in the [National Crime Agency]18. [18 The Commissioners for Her Majesty’s Revenue and Customs and any office or employment in their service19. 18A …9]5 19 Any employment which is concerned with the monitoring, for the purposes of child protection, of communications by means of the internet.]20 [20 Any employment or other work which is normally carried out in premises approved under section 9 of the Criminal Justice and Court Services Act 2000. 21 Any employment or other work which is normally carried out in a hospital used only for the provision of high security psychiatric services.]21 [22 An individual designated under section 2 of the Traffic Management Act 2004. 23 Judges’ clerks, secretaries and legal secretaries within the meaning of section 98 of the Supreme Court Act 1981. 24 Court officers and court contractors, who in the course of their work, have face to face contact with judges of the Supreme Court, or access to such judges’ lodgings. 299

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25 Persons who in the course of their work have regular access to personal information relating to an identified or identifiable member of the judiciary. 26 Court officers and court contractors, who, in the course of their work, attend either the Royal Courts of Justice or the Central Criminal Court. 27 Court security officers, and tribunal security officers. 28 Court contractors, who, in the course of their work, have unsupervised access to court-houses, offices and other accommodation used in relation to the courts. 29 Contractors, sub-contractors, and any person acting under the authority of such a contractor or sub-contractor, who, in the course of their work, have unsupervised access to tribunal buildings, offices and other accommodation used in relation to tribunals. 30 The following persons— (a) Court officers who execute county court warrants; (b) High Court enforcement officers; (c) sheriffs and under-sheriffs; (d) tipstaffs; (e) any other persons who execute High Court writs or warrants who act under the authority of a person listed at (a) to (d); (f)

persons who execute writs of sequestration;

(g) civilian enforcement officers as defined in section 125A of the Magistrates’ Courts Act 1980; (h) persons who are authorised to execute warrants under section 125B(1) of the Magistrates’ Courts Act 1980, and any other person, (other than a constable), who is authorised to execute a warrant under section 125(2) of the 1980 Act; (i)

persons who execute clamping orders, as defined in paragraph 38(2) of Schedule 5 to the Courts Act 2003. 300

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31 The Official Solicitor and his deputy. 32 Persons appointed to the office of Public Trustee or deputy Public Trustee, and officers of the Public Trustee. 33 Court officers and court contractors who exercise functions in connection with the administration and management of funds in court including the deposit, payment, delivery and transfer in, into and out of any court of funds in court and regulating the evidence of such deposit, payment, delivery or transfer and court officers and court contractors, who receive payments in pursuance of a conviction or order of a magistrates’ court.]8 [34 People working in [the [Department for Education]22]23, the Office for Standards in Education, Children’s Services and Skills …24 with access to sensitive or personal information about children …24. 35 Any office, employment or other work which is concerned with the establishment or operation of a database under section 12 of the Children Act 2004, and which is of such a kind as to enable the holder of that office or employment, or the person engaged in that work, to have access to information included in the database. 36 Any office, employment or other work which is of such a kind that the person is or may be permitted or required to be given access to a database under section 12 of the Children Act 2004. 37 …24 38 The chairman, other members, and members of staff (including any person seconded to serve as a member of staff) of the [Disclosure and Barring Service]25[, and any other work in the Disclosure and Barring Service]26. 301

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39 Staff working within the Public Guardianship Office, (to be known as the Office of the Public Guardian from October 2007), with access to data relating to children and vulnerable adults. 40 The Commissioner for Older People in Wales, and his deputy, and any person appointed by the Commissioner to assist him in the discharge of his functions or authorised to discharge his functions on his behalf. 41 The Commissioners for the Gambling Commission and any office or employment in their service. 42 Individuals seeking authorisation from the Secretary of State for the Home Department to become authorised search officers. 43 Any employment or other work where the normal duties (a) involve caring for, training, supervising, or being solely in charge of, persons aged under 18 serving in the naval, military or air forces of the Crown; or (b) include supervising or managing a person employed or working in a capacity referred to in paragraph (a).]27 [44 …28]13 Amendments 1 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2001, SI 2001/1192, arts 2, 6(2)-(5). 2 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2002, SI 2002/441, arts 2, 5(2)(a), (b). 3 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2006, SI 2006/2143, arts 2, 7(a). 4 Substituted by the Courts Act 2003 (Consequential Provisions) (No. 2) Order 2005, SI 2005/617, art 3, Schedule, para 55. 5 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2006, SI 2006/2143, arts 2, 7(b)(i), (c), (d). 6 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 11(1), (3)(a), (c), (d). 7 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 11(1), (3)(b).

302

SI 1975/1023, Schedule 1 8 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2006, SI 2006/2143, arts 2, 7(b)(ii), (iii), (e). 9 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2014, SI 2014/1707, arts 2, 6(b)(i). 10 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 1986, SI 1986/1249, art 2, Schedule, para 2. 11 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2015, SI 2015/317, art 2(1), (5)(a). 12 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012, SI 2012/1957, arts 2, 10(1), (2), (3). 13 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2009, SI 2009/1818, arts 2, 7(1). 14 Inserted by the Alternative Provision Academies and 16 to 19 Academies (Consequential Amendments to Subordinate Legislation) (England) Order 2012, SI 2012/979, art 2, Schedule, para 2. 15 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2016, SI 2016/824, art 2(1), (4). 16 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2014, SI 2014/1707, arts 2, 6(b)(ii), (iii). 17 Substituted by the Independent Office for Police Conduct (Transitional and Consequential) Regulations 2017, SI 2017/1250, reg 3. 18 Substituted by the Crime and Courts Act 2013, s 15(3), Sch 8, para 190(1). 19 Repealed by the Public Bodies (Merger of the Director of Public Prosecutions and the Director of Revenue and Customs Prosecutions) Order 2014, SI 2014/834, art 3(3)(a), Sch 3, para 1. 20 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2002, SI 2002/441, arts 2, 5(2)(c). 21 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2003, SI 2003/965, arts 2, 8. 22 Substituted by the Secretary of State for Education Order 2010, SI 2010/1836, art 6, Schedule, para 11(a). 23 Substituted by the Secretaries of State for Children, Schools and Families, for Innovation, Universities and Skills and for Business, Enterprise and Regulatory Reform Order 2007, SI 2007/3224, art 15, Schedule, para 11. 24 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012, SI 2012/1957, arts 2, 10(1), (4), (5). 25 Substituted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 18, 20(1), (2)(a). 26 Inserted by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 18, 20(1), (2)(b). 27 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2007, SI 2007/2149, arts 2, 7. 28 Repealed by the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012, SI 2012/3006, arts 18, 20(1), (3), 69, 71.

Part III  Regulated occupations 1 Firearms dealer. 2 Any occupation in respect of which an application to the Gaming Board for Great Britain for a licence, certificate or registration is required by or under any enactment. 303

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3 …1 4 …2 5 …2 6 Any occupation which is concerned with— (a) the management of a place in respect of which the approval of the Secretary of State is required by section 1 of the Abortion Act 1967; or (b) in England and Wales, carrying on [a regulated activity in respect of which a person is required to be registered under Part 1 of the Health and Social Care Act 2008]3; (c) …4 7 …4 8 Any occupation in respect of which the holder, as occupier of premises on which explosives are kept, is required [pursuant to [regulations 4, 5 and 11 of the Explosives Regulations 2014]5 to obtain from the chief officer of police a valid explosives certificate certifying him to be a fit person to acquire or acquire and keep explosives]6. [9 …7]8 [10 Approved legal services body manager.]9 [11 A regulated immigration adviser.]10 [12 A head of finance and administration of a licensed body. 304

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13 A head of legal practice of a licensed body.]11 [14 CILEx approved manager.]12 Amendments 1 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (No. 2) Order 2001, SI 2001/3816, arts 2, 7(a). 2 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment No. 2) Order 1986, SI 1986/2268, art 2(2)(a). 3 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 11(1), (4)(a)(i). 4 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 11(1), (4)(a)(ii), (b). 5 Substituted by the Explosives Regulations 2014, SI 2014/1638, reg 83(1), Sch 13, para 11(a). 6 Substituted by the Manufacture and Storage of Explosives Regulations 2005, SI 2005/1082, reg 28(1), Sch 5, para 27(1), (2). 7 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2003, SI 2003/965, arts 2, 9. 8 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2002, SI 2002/441, arts 2, 5(3). 9 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2008, SI 2008/3259, arts 2, 7(1). 10 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2009, SI 2009/1818, arts 2, 7(2). 11 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2011/1800, art 2(1), (5). 12 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2014, SI 2014/1707, arts 2, 6(c).

Part IV  Interpretation In this Schedule— [‘actuary’ means a member of [the Institute and Faculty of Actuaries]1; [‘approved legal services body manager’ means a person who must be approved by the Law Society under section 9A(2)(e) of the Administration of Justice Act 1985;]2 [‘assistants to justices’ clerks’ has the meaning given by section 27(5) of the Courts Act 2003;]3 [‘authorised search officer’ means a person authorised to carry out searches in accordance with sections 40 and 41 of the Immigration, Asylum and Nationality Act 2006;]4 ‘care services’ means (i) accommodation and nursing or personal care in a care home [(where ’care home’, in relation to England, has the same 305

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meaning as in the Care Standards Act 2000, and in relation to Wales, means a place at which a care home service, within the meaning of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016, is provided wholly or mainly to persons aged 18 or over)]5; (ii) personal care or nursing or support for a person to live independently in his own home; (iii) social care services; or (iv) any services provided in an establishment catering for a person with learning difficulties;]6 ‘certified accountant’ means a member of the Association of Certified Accountants; ‘chartered accountant’ means a member of the Institute of Chartered Accountants in England and Wales or of the Institute of Chartered Accountants of Scotland; [‘chartered legal executive’ means a fellow of the Chartered Institute of Legal Executives;]7 […8]6 [‘child’ means a person under the age of eighteen (and ‘children’ is to be construed accordingly);]4 [‘CILEx approved manager’ means a person authorised by the Chartered Institute of Legal Executives to be concerned in the management of a body which is a CILEx authorised person. ‘CILEx authorised person’ means a person authorised by the Chartered Institute of Legal Executives to provide a reserved legal activity in accordance with the Legal Services Act 2007;]7 [‘court contractor’ means a person who has entered into a contract with the Lord Chancellor under section 2(4) of the Courts Act 2003, such a person’s sub-contractor, and persons acting under the authority of such a contractor or sub-contractor for the purpose of discharging the Lord Chancellor’s general duty in relation to the courts; ‘court officer’ means a person appointed by the Lord Chancellor under section 2(1) of the Courts Act 2003; ‘court security officers’ has the meaning given by section 51 of the Courts Act 2003;]3 …9 ‘firearms dealer’ has the meaning assigned to that expression by section 57(4) of the Firearms Act 1968; 306

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[‘funds in court’ has the meaning given by section 47 of the Administration of Justice Act 1982;]3 ‘further education’ has the meaning assigned to that expression by section 41 of the Education Act 1944 or, in Scotland, section 4 of the Education (Scotland) Act 1962; [‘further education institution’ has the meaning given to it by paragraph 3 of the Education (Restriction of Employment) Regulations 2000;]10 [‘head of finance and administration of a licensed body’ means an individual who is designated as head of finance and administration and whose designation is approved in accordance with licensing rules made under section 83 of, and paragraphs 13 and 14 of Schedule 11 to, the Legal Services Act 2007; ‘head of legal practice of a licensed body’ means an individual who is designated as head of legal practice and whose designation is approved in accordance with licensing rules made under section 83 of, and paragraphs 11 and 12 of Schedule 11 to, the Legal Services Act 2007;]11 [‘health care professional’ means a person who is a member of a profession regulated by a body mentioned in subsection (3) of section 25 of the National Health Service Reform and Health Care Professions Act 2002 (and for the purposes of this definition subsection (3A) of that section is to be ignored);]12 ‘health services’ means services provided under the National Health Service Acts 1946 to 1973 or the National Health Service (Scotland) Acts 1947 to 1973 and similar services provided otherwise than under the National Health Service; [‘high security psychiatric services’ has the meaning given by section 4 of the National Health Service Act 1977;]13 [‘home inspector’ means a person who is a member of a certification scheme approved by the Secretary of State in accordance with section 164(3) of the Housing Act 2004;]3 …14 [‘judges of the Supreme Court’ means the Lord Chief Justice, the Master of the Rolls, the President of the Queen’s Bench Division, the President of the Family Division, the Chancellor of the High Court, the Lords Justices of Appeal and the puisne judges of the High Court;]3 ‘judicial appointment’ means an appointment to any office by virtue of which the holder has power (whether alone or with others) under any enactment or rule of law to determine any question affecting the rights, privileges, obligations or liabilities of any person; 307

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[…15]6 [‘members of the judiciary’ means persons appointed to any office by virtue of which the holder has power (whether alone or with others) under any enactment or rule of law to determine any question affecting the rights, privileges, obligations or liabilities of any person; ‘personal information’ means any information which is of a personal or confidential nature and is not in the public domain and it includes information in any form but excludes anything disclosed for the purposes of proceedings in a particular cause or matter;]3 ‘proprietor’ and ‘independent school’ have the meanings assigned to those expressions by section 114(1) of the Education Act 1944 or, in Scotland, section 145 of the Education (Scotland) Act 1962; […16]17 […16]18 [‘registered foreign lawyer’ has the meaning given by section 89 of the Courts and Legal Services Act 1990;]6 […16]19 [[…16]20 [[…16]20]21 […16]20]22 ‘registered teacher’ means a teacher registered under the Teaching Council (Scotland) Act 1965 and includes a provisionally registered teacher; [‘regulated immigration adviser’ means any person who provides immigration advice or immigration services as defined in section 82(1) of the Immigration and Asylum Act 1999 and is— (i)

a registered person under Part 5 of that Act, or

(ii) a person who acts on behalf of and under the supervision of such a registered person, or (iii) a person who falls within section 84(4)(a), (b) or (c) of that Act;]23 [‘regulated position’ means a position which is a regulated position for the purposes of Part II of the Criminal Justice and Court Services Act 2000 [other than a position which would not be a regulated position if in section 36(4) of that Act ‘employment’ included unpaid employment]12;]10 [‘removal centre’ and ’short-term holding facility’ have the meaning given by section 147 of the Immigration and Asylum Act 1999;]3 308

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‘school’ has the meaning assigned to that expression by section 114(1) of the Education Act 1944 or, in Scotland, section 145 of the Education (Scotland) Act 1962; [‘security management’ means activity carried out pursuant to the Secretary of State’s security management functions within the meaning given by section 195(3) of the National Health Service Act 2006 and in respect of Wales, the corresponding functions of Welsh Ministers;]24 …25 […26]6 ‘teacher’ includes a warden of a community centre, leader of a youth club or similar institution, youth worker and, in Scotland, youth and community worker; [‘tribunal security officers’ means persons who, in the course of their work, guard tribunal buildings, offices and other accommodation used in relation to tribunals against unauthorised access or occupation, against outbreaks of disorder or against damage; ‘tribunals’ means any person exercising the judicial power of the State, that is not a court listed in section 1(1) of the Courts Act 2003;]3 …9 [[‘vulnerable adult’ has the meaning given by section 59 of the 2006 Act as it had effect immediately before the coming into force of section 65 of the Protection of Freedoms Act 2012.]27]6 Amendments 1 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2011/1800, art 2(1), (6)(a). 2 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2008, SI 2008/3259, arts 2, 7(2). 3 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2006, SI 2006/2143, arts 2, 8. 4 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2007, SI 2007/2149, arts 2, 8. 5 Substituted by the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments to Secondary Legislation) Regulations 2018, SI 2018/48, reg 2, Sch 1, para 1(1), (3). 6 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2002, SI 2002/441, arts 2, 5(4). 7 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2014, SI 2014/1707, arts 2, 6(d)(i), (ii). 8 Repealed by the Health Care and Associated Professions (Miscellaneous Amendments and Practitioner Psychologists) Order 2009, SI 2009/1182, art 4(1), Sch 4, para 1(b). 9 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment No. 2) Order 1986, SI 1986/2268, art 2(2)(a). 10 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2001, SI 2001/1192, arts 2, 6(6). 11 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2011/1800, art 2(1), (6)(b).

309

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 12 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012, SI 2012/1957, arts 2, 6(1), (3)(a), 11(1), (3). 13 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2003, SI 2003/965, arts 2, 10(a). 14 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (No. 2) Order 2001, SI 2001/3816, arts 2, 7(b). 15 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2014, SI 2014/1707, arts 2, 6(d)(iii). 16 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012, SI 2012/1957, arts 2, 6(1), (3)(b). 17 Inserted by the Chiropractors Act 1994, s 40(4) 18 Inserted by the Health Care and Associated Professions (Miscellaneous Amendments and Practitioner Psychologists) Order 2009, SI 2009/1182, art 4(1), Sch 4, para 37(b). 19 Inserted by the Osteopaths Act 1993, s 39(4). 20 Substituted by the Pharmacy Order 2010, SI 2010/231, art 68, Sch 4, para 18. 21 Inserted by the Health Care and Associated Professions (Miscellaneous Amendments and Practitioner Psychologists) Order 2009, SI 2009/1182, art 4(1), Sch 4, para 28(b). 22 Inserted by the Pharmacists and Pharmacy Technicians Order 2007, SI 2007/289, art 67, Sch 1, para 12(b). 23 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2009, SI 2009/1818, arts 2, 7(3). 24 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2015, SI 2015/317, art 2(1), (5)(b). 25 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2002, SI 2002/441, arts 2, 5(4)(e). 26 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2003, SI 2003/965, arts 2, 10(b). 27 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012, SI 2012/1957, arts 2, 11(1), (2).

Schedule 2 Excepted licences, certificates and permits Article 3 1 Firearm certificates and shot gun certificates issued under the Firearms Act 1968, and permits issued under section 7(1), 9(2) or 13(1)(c) of that Act. 2 Licences issued under section 25 of the Children and Young Persons Act 1933 (which relates to persons under the age of 18 going abroad for the purpose of performing or being exhibited for profit). [3 Explosives certificates issued by a chief officer of police pursuant to [regulations 4, 5 and 11 of the Explosives Regulations 2014]1 as to the fitness of a person to acquire or acquire and keep explosives.]2 310

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[4 Taxi driver licences. 5 Licences granted under section 8 of the Private Security Industry Act 2001.]3 [6 Licences granted under [section 4A of the Poisons Act 1972]4.]5 Amendments 1 Substituted by the Explosives Regulations 2014, SI 2014/1638, reg 83(1), Sch 13, para 11(b). 2 Substituted by the Manufacture and Storage of Explosives Regulations 2005, SI 2005/1082, reg 28(1), Sch 5, para 27(1), (3). 3 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2003, SI 2003/965, arts 2, 11. 4 Substituted by the Deregulation Act 2015 (Poisons and Explosives Precursors) (Consequential Amendments, Revocations and Transitional Provisions) Order 2015, SI 2015/968, art 3, Schedule, para 1(1), (2). 5 Inserted by the Control of Explosives Precursors Regulations 2014, SI 2014/1942, reg 17(1), (4).

Schedule 3 Excepted proceedings Article 5 1 Proceedings in respect of a person’s admission to, or disciplinary proceedings against a member of, any profession specified in Part I of Schedule 1 to this Order. 2 Proceedings before the Court of Appeal or the High Court in the exercise of their disciplinary jurisdiction in respect of solicitors. 3 Disciplinary proceedings against a constable. 4 Proceedings before the Gaming Board for Great Britain. [5 Proceedings under the Mental Health Act 1983 before any tribunal.]1 311

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6 Proceedings under the Firearms Act 1968 in respect of— (a) the registration of a person as a firearms dealer, the removal of a person’s name from a register of firearms dealers or the imposition, variation or revocation of conditions of any such registration; or (b) the grant, renewal, variation or revocation of a firearm certificate; or (c) the grant, renewal or revocation of a shot gun certificate; or (d) the grant of a permit under section 7(1), 9(2) or 13(1)(c) of that Act. 7 Proceedings in respect of the grant, renewal or variation of a licence under section 25 of the Children and Young Persons Act 1933 (which relates to persons under the age of 18 going abroad for the purpose of performing or being exhibited for profit). 8 …2 [9 Proceedings in respect of a direction given under section 142 of the Education Act 2002 or of any prohibition or restriction on a person’s employment or work which has effect as if it were contained in such a direction.]3 10 …4 11 Proceedings in respect of an application for, or cancellation of,— (a) the Secretary of State’s approval of a place under section 1 of the Abortion Act 1967; or (b) …5 (c) …5 [11A Proceedings in respect of an application for, or suspension or cancellation of, registration in respect of a regulated activity under Part 1 of the Health and Social Care Act 2008.]6 312

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12 …5 [13 Proceedings in respect of— (a)

an application to the chief officer of police for an explosives certificate pursuant to regulations 4, 5 and 11 of the Explosives Regulations 2014 (“the 2014 Regulations”) as to the fitness of the applicant to acquire or acquire and keep explosives, including consideration as to whether to refuse the application on any of the grounds specified in regulation 19 of the 2014 Regulations;

(b) the revocation of such certificates pursuant to regulation 21 of the 2014 Regulations; (c) an appeal or application pursuant to regulation 22 of the 2014 Regulations against a decision taken under regulation 19 or 21.]7 14 Proceedings by way of appeal against, or review of, any decision taken, by virtue of any of the provisions of this Order, on consideration of a spent conviction. 15 Proceedings held for the receipt of evidence affecting the determination of any question arising in any proceedings specified in this Schedule. [16 [Proceedings relating to a taxi driver licence.]8]9 [17 Proceedings— (a) before the National Lottery Commission in respect of the grant or revocation of a licence under Part I of the National Lottery etc. Act 1993; or (b) by way of appeal to the Secretary of State against the revocation of any such licence by the National Lottery Commission.]9 [17A Proceedings relating to registration under Part II of the Care Standards Act 2000.]10 313

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[17B Proceedings relating to registration under Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016.]11 [18 Proceedings relating to registration under [Part 4 of the Regulation and Inspection of Social Care (Wales) Act 2016]12. 19 Proceedings under section 11 of the Private Security Industry Act 2001.]13 [19A Proceedings relating to the grant, amendment, variation, suspension or revocation of a licence under [section 4A of the Poisons Act 1972]14.]15 [20 Proceedings before the Parole Board. 21 Proceedings under section 7D of the Criminal Injuries Compensation Act 1995. 22. The following proceedings under the Proceeds of Crime Act 2002— (a) proceedings under Chapter 2 of Part 5; (b) proceedings pursuant to a notice under section 317(2); (c) proceedings pursuant to an application under Part 8 in connection with a civil recovery investigation (within the meaning of section 341). 23 Proceedings brought before the Football Association[. Football League]16 or Football Association Premier League against a decision taken by the body before which the proceedings are brought to refuse to approve a person as able to undertake, in the course of acting as a steward at a sports ground at which football matches are played or as a supervisor or manager of such a person, licensable conduct within the meaning of the Private Security Industry Act 2001 without a licence issued under that Act, in accordance with …17 section 4 of that Act.]18

314

SI 1975/1023, Schedule 3 Amendments 1 Substituted by the Tribunals, Courts and Enforcement Act 2007 (Transitional and Consequential Provisions) Order 2008, SI 2008/2683, art 6(1), Sch 1, para 6. 2 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (No. 2) Order 2001, SI 2001/3816, arts 2, 7(c). 3 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2006, SI 2006/2143, arts 2, 9(a). 4 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment No. 2) Order 1986, SI 1986/2268, art 2(2)(b). 5 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 11(1), (2), (4). 6 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198, arts 2, 11(1), (3). 7 Substituted by the Explosives Regulations 2014, SI 2014/1638, reg 83(1), Sch 13, para 11(c). 8 Substituted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2003, SI 2003/965, arts 2, 12. 9 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2002, SI 2002/441, arts 2, 6. 10 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2014, SI 2014/1707, arts 2, 7. 11 Inserted by the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments to Secondary Legislation) Regulations 2018, SI 2018/48, reg 2, Sch 1, para 1(1), (4). 12 Substituted by the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments to Secondary Legislation) Regulations 2017, SI 2017/52, reg 2, Sch 1, para 1(1), (3). 13 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2003, SI 2003/965, arts 2, 13. 14 Substituted by the Deregulation Act 2015 (Poisons and Explosives Precursors) (Consequential Amendments, Revocations and Transitional Provisions) Order 2015, SI  2015/968, art  3, Schedule, para 1(1), (3). 15 Inserted by the Control of Explosives Precursors Regulations 2014, SI 2014/1942, reg 17(1), (5). 16 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment No. 2) (England and Wales) Order 2006, SI 2006/3290, art 2(1), (2)(a). 17 Repealed by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment No. 2) (England and Wales) Order 2006, SI 2006/3290, art 2(1), (2)(b). 18 Inserted by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2006, SI 2006/2143, arts 2, 9(b).

315

Appendix E Pre-Action Protocol for Judicial Review Introduction 1. This Protocol applies to proceedings within England and Wales only. It does not affect the time limit specified by Rule 54.5(1) of the Civil Procedure Rules (CPR), which requires that any claim form in an application for judicial review must be filed promptly and in any event not later than three months after the grounds to make the claim first arose. Nor does it affect the shorter time limits specified by Rules 54.5(5) and (6), which set out that a claim form for certain planning judicial reviews must be filed within 6 weeks and the claim form for certain procurement judicial reviews must be filed within 30 days.1 2. This Protocol sets out a code of good practice and contains the steps which parties should generally follow before making a claim for judicial review. 3. The aims of the protocol are to enable parties to prospective claims to— (a) understand and properly identify the issues in dispute in the proposed claim and share information and relevant documents; (b) make informed decisions as to whether and how to proceed; (c) try to settle the dispute without proceedings or reduce the issues in dispute; (d) avoid unnecessary expense and keep down the costs of resolving the dispute; and (e) support the efficient management of proceedings where litigation cannot be avoided. 4. Judicial review allows people with a sufficient interest in a decision or action by a public body to ask a judge to review the lawfulness of— •

an enactment; or

•

a decision, action or failure to act in relation to the exercise of a public function.2

5. Judicial review should only be used where no adequate alternative remedy, such as a right of appeal, is available. Even then, judicial review may not be appropriate in every instance. Claimants are strongly advised to seek appropriate legal advice as soon as possible when considering proceedings. Although the Legal Aid Agency will not normally grant full representation before a letter before claim has been sent and the proposed defendant given a reasonable time 317

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to respond, initial funding may be available, for eligible claimants, to cover the work necessary to write this. (See Annex C for more information.) 6. This protocol will not be appropriate in very urgent cases. In this sort of case, a claim should be made immediately. Examples are where directions have been set for the claimant’s removal from the UK or where there is an urgent need for an interim order to compel a public body to act where it has unlawfully refused to do so, such as where a local housing authority fails to secure interim accommodation for a homeless claimant. A letter before claim, and a claim itself, will not stop the implementation of a disputed decision, though a proposed defendant may agree to take no action until its response letter has been provided. In other cases, the claimant may need to apply to the court for an urgent interim order. Even in very urgent cases, it is good practice to alert the defendant by telephone and to send by email (or fax) to the defendant the draft Claim Form which the claimant intends to issue. A  claimant is also normally required to notify a defendant when an interim order is being sought. 7. All claimants will need to satisfy themselves whether they should follow the protocol, depending upon the circumstances of the case. Where the use of the protocol is appropriate, the court will normally expect all parties to have complied with it in good time before proceedings are issued and will take into account compliance or non-compliance when giving directions for case management of proceedings or when making orders for costs.3 8. The Upper Tribunal Immigration and Asylum Chamber (UTIAC) has jurisdiction in respect of judicial review proceedings in relation to most immigration decisions.4 The President of UTIAC has issued a Practice Statement to the effect that, in judicial review proceedings in UTIAC, the parties will be expected to follow this protocol, where appropriate, as they would for proceedings in the High Court.

Alternative Dispute Resolution 9. The courts take the view that litigation should be a last resort. The parties should consider whether some form of alternative dispute resolution (‘ADR’) or complaints procedure would be more suitable than litigation, and if so, endeavour to agree which to adopt. Both the claimant and defendant may be required by the court to provide evidence that alternative means of resolving their dispute were considered. Parties are warned that if the protocol is not followed (including this paragraph) then the court must have regard to such conduct when determining costs. However, parties should also note that a claim for judicial review should comply with the time limits set out in the Introduction above. Exploring ADR may not excuse failure to comply with the time limits. If it is appropriate to issue a claim to ensure compliance with a time limit, but the parties agree there should be a stay of proceedings to explore 318

Introduction

settlement or narrowing the issues in dispute, a joint application for appropriate directions can be made to the court. 10. It is not practicable in this protocol to address in detail how the parties might decide which method to adopt to resolve their particular dispute. However, summarised below are some of the options for resolving disputes without litigation which may be appropriate, depending on the circumstances— •

Discussion and negotiation.

•

Using relevant public authority complaints or review procedures.

•

Ombudsmen – the Parliamentary and Health Service and the Local Government Ombudsmen have discretion to deal with complaints relating to maladministration. The British and Irish Ombudsman Association provide information about Ombudsman schemes and other complaint handling bodies and this is available from their website at www.bioa.org. uk. Parties may wish to note that the Ombudsmen are not able to look into a complaint once court action has been commenced.

•

Mediation – a form of facilitated negotiation assisted by an independent neutral party.

11. The Civil Justice Council and Judicial College have endorsed The Jackson ADR  Handbook by Susan Blake, Julie Browne and Stuart Sime (2013, Oxford University Press). The Citizens Advice Bureaux website also provides information about ADR: http://www.ad viceguide.org.uk/england/law_e/ law_legal_system_e/law_taking_legal_action_e/alternatives_to_court.htm. Information is also available at: http://www.civilmediation.justice.gov.uk/ 12. If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. A  party’s silence in response to an invitation to participate in ADR or refusal to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs.

Requests for information and documents at the pre-action stage 13. Requests for information and documents made at the pre-action stage should be proportionate and should be limited to what is properly necessary for the claimant to understand why the challenged decision has been taken and/ or to present the claim in a manner that will properly identify the issues. The defendant should comply with any request which meets these requirements unless there is good reason for it not to do so. Where the court considers that a public body should have provided relevant documents and/or information, particularly where this failure is a breach of a statutory or common law requirement, it may impose costs sanctions. 319

Pre-Action Protocol for Judicial Review

The letter before claim 14. In good time before making a claim, the claimant should send a letter to the defendant. The purpose of this letter is to identify the issues in dispute and establish whether they can be narrowed or litigation can be avoided. 15. Claimants should normally use the suggested standard format for the letter outlined at Annex A. For Immigration, Nationality and Asylum cases, the Home Office has a standardised form which can be used. It can be found online at: https://www.gov.uk/government/publications/chapter-27-judicial-reviewguidance-part-1. 16.The letter should contain the date and details of the decision, act or omission being challenged, a clear summary of the facts and the legal basis for the claim. It should also contain the details of any information that the claimant is seeking and an explanation of why this is considered relevant. If the claim is considered to be an Aarhus Convention claim (see Rules 45.41 to 45.44 and Practice Direction 45), the letter should state this clearly and explain the reasons, since specific rules as to costs apply to such claims. If the claim is considered appropriate for allocation to the Planning Court and/or for classification as “significant” within that court, the letter should state this clearly and explain the reasons. 17. The letter should normally contain the details of any person known to the claimant who is an Interested Party. An Interested Party is any person directly affected by the claim.5 They should be sent a copy of the letter before claim for information. Claimants are strongly advised to seek appropriate legal advice when considering proceedings which involve an Interested Party and, in particular, before sending the letter before claim to an Interested Party or making a claim. 18. A claim should not normally be made until the proposed reply date given in the letter before the claim has passed, unless the circumstances of the case require more immediate action to be taken.The claimant should send the letter before claim in good time so as to enable a response which can then be taken into account before the time limit for issuing the claim expires, unless there are good reasons why this is not possible. 19. Any claimant intending to ask for a protective costs order (an order that the claimant will not be liable for the costs of the defendant or any other party or to limit such liability) should explain the reasons for making the request, including an explanation of the limit of the financial resources available to the claimant in making the claim.

The letter of response 20. Defendants should normally respond within 14 days using the standard format at Annex B. Failure to do so will be taken into account by the court and sanctions 320

Introduction

may be imposed unless there are good reasons.6 Where the claimant is a litigant in person, the defendant should enclose a copy of this Protocol with its letter. 21. Where it is not possible to reply within the proposed time limit, the defendant should send an interim reply and propose a reasonable extension, giving a date by which the defendant expects to respond substantively. Where an extension is sought, reasons should be given and, where required, additional information requested.This will not affect the time limit for making a claim for judicial review7 nor will it bind the claimant where he or she considers this to be unreasonable. However, where the court considers that a subsequent claim is made prematurely it may impose sanctions. 22. If the claim is being conceded in full, the reply should say so in clear and unambiguous terms. 23. If the claim is being conceded in part or not being conceded at all, the reply should say so in clear and unambiguous terms, and— (a) where appropriate, contain a new decision, clearly identifying what aspects of the claim are being conceded and what are not, or, give a clear timescale within which the new decision will be issued; (b) provide a fuller explanation for the decision, if considered appropriate to do so; (c) address any points of dispute, or explain why they cannot be addressed; (d) enclose any relevant documentation requested by the claimant, or explain why the documents are not being enclosed; (e) where documents cannot be provided within the time scales required, then give a clear timescale for provision. The claimant should avoid making any formal application for the provision of documentation/ information during this period unless there are good grounds to show that the timescale proposed is unreasonable; (f) where appropriate, confirm whether or not they will oppose any application for an interim remedy; and (g) if the claimant has stated an intention to ask for a protective costs order, the defendant’s response to this should be explained. If the letter before claim has stated that the claim is an Aarhus Convention claim but the defendant does not accept this, the reply should state this clearly and explain the reasons. If the letter before claim has stated that the claim is suitable for the Planning Court and/or categorisation as “significant” within that court but the defendant does not accept this, the reply should state this clearly and explain the reasons. 24. The response should be sent to all Interested Parties 8 identified by the claimant and contain details of any other persons who the defendant considers are Interested Parties. 321

Pre-Action Protocol for Judicial Review

Annex A Letter before claim Section 1. Information required in a letter before claim 1 Proposed claim for judicial review To (Insert the name and address of the proposed defendant – see details in section 2.) 2 The claimant (Insert the title, first and last name and the address of the claimant.) 3 The defendant’s reference details (When dealing with large organisations it is important to understand that the information relating to any particular individual’s previous dealings with it may not be immediately available, therefore it is important to set out the relevant reference numbers for the matter in dispute and/or the identity of those within the public body who have been handling the particular matter in dispute – see details in section 3.) 4 The details of the claimants’ legal advisers, if any, dealing with this claim (Set out the name, address and reference details of any legal advisers dealing with the claim.) 5 The details of the matter being challenged (Set out clearly the matter being challenged, particularly if there has been more than one decision.) 6 The details of any Interested Parties (Set out the details of any Interested Parties and confirm that they have been sent a copy of this letter.) 7 The issue (Set out a brief summary of the facts and relevant legal principles, the date and details of the decision, or act or omission being challenged, and why it is contended to be wrong.) 8 The details of the action that the defendant is expected to take (Set out the details of the remedy sought, including whether a review or any interim remedy are being requested.) 9 ADR proposals (Set out any proposals the claimant is making to resolve or narrow the dispute by ADR.) 322

Annex A Letter before claim

10 The details of any information sought (Set out the details of any information that is sought which is related to identifiable issues in dispute so as to enable the parties to resolve or reduce those issues. This may include a request for a fuller explanation of the reasons for the decision that is being challenged.) 11 The details of any documents that are considered relevant and necessary (Set out the details of any documentation or policy in respect of which the disclosure is sought and explain why these are relevant.) 12 The address for reply and service of court documents (Insert the address for the reply.) 13 Proposed reply date (The precise time will depend upon the circumstances of the individual case. However, although a shorter or longer time may be appropriate in a particular case, 14 days is a reasonable time to allow in most circumstances.)

Section 2. Address for sending the letter before claim Public bodies have requested that, for certain types of cases, in order to ensure a prompt response, letters before claim should be sent to specific addresses. •

Where the claim concerns a decision in an Immigration, Asylum or Nationality case (including in relation to an immigration decision taken abroad by an Entry Clearance Officer) — The claim should be sent electronically to the following Home Office email address: UKVIPAP@ homeoffice.gsi.gov.uk Alternatively the claim may be sent by post to the following Home Office postal address: Litigation Allocation Unit 6, New Square Bedfont Lakes Feltham, Middlesex TW14 8HA The Home Office has a standardised form which claimants may find helpful to use for communications with the Home Office in Immigration, Asylum or Nationality cases pursuant to this Protocol, to assist claimants to include all relevant information and to promote speedier review and response by the Home Office. The Home Office form may be filled out 323

Pre-Action Protocol for Judicial Review

in electronic or hard copy format. It can be found online at: https://www. gov.uk/government/publications/chapter-27-judicial-review-guidancepart-1. •

Where the claim concerns a decision by the Legal Aid Agency— The address on the decision letter/notification; Legal Director Corporate Legal Team Legal Aid Agency 102 Petty France London SW1H 9AJ

•

Where the claim concerns a decision by a local authority— The address on the decision letter/notification; and their legal department9

•

Where the claim concerns a decision by a department or body for whom Treasury Solicitor acts and Treasury Solicitor has already been involved in the case a copy should also be sent, quoting the Treasury Solicitor’s reference, to— The Treasury Solicitor, One Kemble Street, London WC2B 4TS

•

In all other circumstances, the letter should be sent to the address on the letter notifying the decision.

9 The relevant address should be available from a range of sources such as the Phone Book; Business and Services Directory, Thomson’s Local Directory, CAB, etc.

Section 3. Specific reference details required Public bodies have requested that the following information should be provided, if at all possible, in order to ensure prompt response. Where the claim concerns an Immigration, Asylum or Nationality case, dependent upon the nature of the case— •

The Home Office reference number;

•

The Port reference number;

•

The Asylum and Immigration Tribunal reference number;

•

The National Asylum Support Service reference number; or, if these are unavailable:

•

The full name, nationality and date of birth of the claimant. 324

Annex B Response to a letter before claim

Where the claim concerns a decision by the Legal Aid Agency— •

The certificate reference number.

Annex B Response to a letter before claim Information required in a response to a letter before claim 1 The claimant (Insert the title, first and last names and the address to which any reply should be sent.) 2 From (Insert the name and address of the defendant.) 3 Reference details (Set out the relevant reference numbers for the matter in dispute and the identity of those within the public body who have been handling the issue.) 4 The details of the matter being challenged (Set out details of the matter being challenged, providing a fuller explanation of the decision, where this is considered appropriate.) 5 Response to the proposed claim (Set out whether the issue in question is conceded in part, or in full, or will be contested. Where an interim reply is being sent and there is a realistic prospect of settlement, details should be included. If the claimant is a litigant in person, a copy of the Pre-Action Protocol should be enclosed with the letter.) 6 Details of any other Interested Parties (Identify any other parties who you consider have an interest who have not already been sent a letter by the claimant.) 7 ADR proposals (Set out the defendant’s position on any ADR proposals made in the letter before claim and any ADR proposals by the defendant.) 8 Response to requests for information and documents (Set out the defendant’s answer to the requests made in the letter before claim including reasons why any requested information or documents are not being disclosed.) 9 Address for further correspondence and service of court documents (Set out the address for any future correspondence on this matter) 325

Pre-Action Protocol for Judicial Review

Annex C Notes on public funding for legal costs in judicial review Public funding for legal costs in judicial review is available from legal professionals and advice agencies which have contracts with the Legal Aid Agency. Funding may be provided for— •

Legal Help to provide initial advice and assistance with any legal problem; or

•

Legal Representation to allow you to be represented in court if you are taking or defending court proceedings. This is available in two forms—

Investigative Help is limited to funding to investigate the strength of the proposed claim. It includes the issue and conduct of proceedings only so far as is necessary to obtain disclosure of relevant information or to protect the client’s position in relation to any urgent hearing or time limit for the issue of proceedings. This includes the work necessary to write a letter before claim to the body potentially under challenge, setting out the grounds of challenge, and giving that body a reasonable opportunity, typically 14 days, in which to respond. Full Representation is provided to represent you in legal proceedings and includes litigation services, advocacy services, and all such help as is usually given by a person providing representation in proceedings, including steps preliminary or incidental to proceedings, and/or arriving at or giving effect to a compromise to avoid or bring to an end any proceedings. Except in emergency cases, a proper letter before claim must be sent and the other side must be given an opportunity to respond before Full Representation is granted. Further information on the type(s) of help available and the criteria for receiving that help may be found in the Legal Aid Agency’s pages on the Ministry of Justice website at: https://www.justice.gov.uk/legal-aid A list of contracted firms and Advice Agencies may be found at: http://findlegal-advice.justice.gov.uk. 1 The court has a discretion to extend time. It cannot be taken that compliance with the protocol will of itself be sufficient to excuse delay or justify an extension of time, but it may be a relevant factor. Under rule 54.5(2), judicial review time limits cannot be extended by agreement between the parties. However, a court will take account of a party’s agreement ‘not to take a time point’ so far as concerns delay while they were responding to a letter before claim. 2 Civil Procedure Rules, Rule 54.1(2). 3 Civil Procedure Rules, Practice Directions 44–48. 4 See the Direction made by the Lord Chief Justice dated 21 August 2013 (as amended on 17 October 2014), available in the UTIAC section of the www.justice.gov.uk website. Also, the High Court can order the transfer of judicial review proceedings to the UTIAC. 5 See Civil Procedure Rules, Rule 54.1(2). 6 See Civil Procedure Rules, Practice Direction – Pre-Action Conduct and Protocols, paragraphs 2–3. 7 See Civil Procedure Rules, Rule 54.5(1). 8 See Civil Procedure Rules, Rule 54.1(2)(f). 9 The relevant address should be available from a range of sources such as the Phone Book; Business and Services Directory, Thomson’s Local Directory, CAB, etc.

326

Appendix F List of Rehabilitation Periods under the ROA 1974 REHABILITATION PERIODS UNDER THE REHABILITATION OF OFFENDERS ACT 1974

Sentence/disposal

Rehabilitation period if aged 18 or over when convicted/disposal administered

Rehabilitation period if aged under 18 when convicted/disposal administered

A custodial sentence of over 48 months

Never spent

Never spent

A custodial sentence of over 30 months but not exceeding 48 months

42 months from the date on 7 years from the date on which which the sentence (including the sentence (including any any licence period) is licence period) is completed completed

A custodial sentence of over 6 months but not exceeding 30 months

48 months from the date on which the sentence (including any licence period) is completed

24 months from the date on which the sentence (including any licence period) is completed

24 months from the date on A custodial sentence of up which the sentence (including to 6 months any licence period) is completed

18 months from the date on which the sentence (including any licence period) is completed 6 months from the date of the conviction in respect of which the fine was imposed

Fine

12 months from the date of the conviction in respect of which the fine was imposed

Community order

12 months from the last day on 6 months from the last day on which the order has effect which the order has effect

Simple, caution, youth caution

Spent immediately

Compensation order

On discharge of the order (i.e. On discharge of the order (i.e. when it is paid in full) when it is paid in full)

327

Spent immediately

Appendix G List of Offences that will Never be Filtered

329

Description of Offence Any offence involving mental or bodily injury to a child or young person Any offence involving the use of le wd, indecent or libidinous practice or behaviour towards a child or young person Any offence of assault or indecent assault on a child Any offence of false imprisonment Any offence of incest with a child Any offence of infanticide Any offence of kidnapping Any offence of manslaughter Any offence of murder Any offence of rape Any offence of receiving a stolen child Any offence of sodomy with a child or without consent Any offence of stealing a child or plagium Torture Obstruction Obstruction Ill-treatment and wilful neglect Civil offences - equivalent offences Endangering safety of an aircraft Endangering safety of an aircraft Endangering safety of any person or property Endangering safety of an aircraft Endangering safety of an aircraft Endangering safety of an aircraft Weapons training Directing terrorist organisation Possession for terrorist purposes Incitement Use of noxious substances to cause harm or intimidate Use of noxious substance or thing to cause harm or intimidate

Legislation (where applicable)

Administration of Justice (Bailiwick of Guernsey) Law 1991, s11 Adoption (Jersey) Law 1961, Art 28 Adult Support and Protection (Scotland) Act 2007, s49 Adults With Incapacity (Scotland) Act 2000, s.83 Air Force Act 1955, s70 Air Navigation Order 1985, Art 47 Air Navigation Order 1989, Art 50 Air Navigation Order 1989, Art 51 Air Navigation Order 1995, Art 55 Air Navigation Order 2005, Art 73 Air Navigation Order 2009, Art 137 Anti-Terrorism and Crime Act 2003, s42 Anti-Terrorism and Crime Act 2003, s44 Anti-Terrorism and Crime Act 2003, s45 Anti-Terrorism and Crime Act 2003, s47 Anti-Terrorism and Crime Act 2003, s60 Anti-terrorism Crime and Security Act 2001, s113

List of Offences that will Never be Filtered

330

331

Trafficking people for exploitation Assault with intent to commit rape Endangering safety of aircraft Carriage of sporting weapons and munitions of war Carriage of dangerous goods Endangering safety at aerodromes Seizing or exercising control over fixed platforms Destroying or endangering safety of fixed platforms Other acts endangering or likely to endanger safe navigation Offences involving threats Ancillary offences outside the United Kingdom Hijacking of ships Hijacking Destroying, damaging or endangering safety of aircraft Other acts endangering or likely to endanger safety of aircraft Offences in relation to certain dangerous articles Ancillary offences outside the United Kingdom Carrying on or managing an establishment or agency without being registered Failure to comply with conditions Contravention of regulations False descriptions of establishments and agencies False descriptions of applications Failing to display a certificate of registration Obstructing or failing to comply with inspections by persons authorised by registration authority Apply for, offer to do or accept work in a care position when listed by Secretary of State as unsuitable Act as a child minder whilst disqualified from registration

Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, s4 Attemped Rape Act (Northern Ireland) 1960, s2 Aviation (Bailiwick of Guernsey) Law 2008, s120 Aviation (Bailiwick of Guernsey) Law 2008, s76 Aviation (Bailiwick of Guernsey) Law 2008, s77 Aviation and Maritime Security Act 1990, s1 Aviation and Maritime Security Act 1990, s10 Aviation and Maritime Security Act 1990, s11 Aviation and Maritime Security Act 1990, s12 Aviation and Maritime Security Act 1990, s13 Aviation and Maritime Security Act 1990, s14 Aviation and Maritime Security Act 1990, s9 Aviation Security Act 1982, s1 Aviation Security Act 1982, s2 Aviation Security Act 1982, s3 Aviation Security Act 1982, s4 Aviation Security Act 1982, s6 Care Standards Act 2000, s11 Care Standards Act 2000, s24 Care Standards Act 2000, s25 Care Standards Act 2000, s26 Care Standards Act 2000, s27 Care Standards Act 2000, s28

Care Standards Act 2000, s89 Care Standards Act 2000, schedule 3

Care Standards Act 2000, s31

Use etc of nuclear weapons Assisting or inducing weapons related acts overseas Criminal conduct - equivalent offences Civil offences - equivalent offences

Anti-terrorism Crime and Security Act 2001, s47 Anti-terrorism Crime and Security Act 2001, s50 Armed Forces Act 2006, s42 Army Act 1955, s70

List of Offences that will Never be Filtered

332

Children (Jersey) Law 1969, Art 71(3) Children (Jersey) Law 1969, Art 71(5) Children (Jersey) Law 1969, Art 78 Children (Jersey) Law 1969, art.100 Children (Jersey) Law 1969, Art 9 Children (Jersey) Law 2002, Art 35

Children (Jersey) Law 1969, Art 71(2)

Children (Jersey) Law 1969, Art 71(1)

Children (Guernsey And Alderney) Law 2008, s94

Children (Guernsey And Alderney) Law 2008, s65 Children (Guernsey And Alderney) Law 2008, s74

Child Care Act 1980, s16 Child Custody Act 1987, s50 Child Custody Act 1987, s51 Child Protection (Alderney) Law 1953, s2

Channel Tunnel (Security) Order 1994, Art 7 Channel Tunnel (Security) Order 1994, Art 8 Child Abduction (Northern Ireland) Order 1985, Art 3 Child Abduction (Northern Ireland) Order 1985, Art 4 Child Abduction Act 1984, s1 Child Abduction Act 1984, s2 Child Abduction Act 1984, s6 Child Care Act 1980, s13 Child Care Act 1980, s14

Channel Tunnel (Security) Order 1994, Art 4 Channel Tunnel (Security) Order 1994, Art 5 Channel Tunnel (Security) Order 1994, Art 6

Hijacking of Channel Tunnel trains Seizing or exercising control of the tunnel system Destroying a Channel Tunnel train or the tunnel system or endangering their safety Other acts endangering or likely to endanger the safe operation of a Channel Tunnel train or the safety of the tunnel system Offences involving threats Abduction of child by parent, etc Abduction of child by other persons Offence of abduction of child by parent, etc Offence of abduction of child by other persons Taking or sending child out of UK Assisting child in care to run away Harbouring or concealing a child required to return to local authority Compelling, persuading, inciting or assisting child to be absent from premises specified by a care order Abduction of child by parent etc Abduction of child by other persons Neglect, etc of child Wilfully impeding or obstructing a police officer where child is suffering harm or at risk Abduction of a child Taking, keeping, inducing, assisting or inciting a child to run away or stay away from care False statements in connection with an application for registration: nurseries and child-minders Occupier of premises used as a nursery or for child-minding when not registered or in contravention of registration Providing nursery or child-minding when not registered or in contravention of registration requirements Failing to comply with conditions of registration as a nursery or child-minder Carrying on a voluntary home when not registered Unlawfully removing child from care of fit person Cruelty to children under sixteen Causing harm to or neglecting children under 16

List of Offences that will Never be Filtered

Children (Northern Ireland) Order 1995, s147 Children (Scotland) Act 1995, s81 Children (Scotland) Act 1995, s83 Children (Scotland) Act 1995, s89 Children Act 1958, s14 Children Act 1989, s49 Children Act 1989, s50(9) Children Act 1989, s63(10) Children Act 1989, s70 Children Act 1989, s76 Children Act 1989, s78 Children Act 1989, s79D Children Act 1989, s79F(6) Children Act 1989, schedule 5, para 1(5) Children Act 1989, schedule 6, para 2(3) Children and Young Persons (Guernsey) Law 1967, s11(10) Children and Young Persons (Guernsey) Law 1967, s11(11)(a) Children and Young Persons (Guernsey) Law 1967, s11(11)(b)

Children (Jersey) Law 2002, Art 44 Children (Jersey) Law 2002, Art 45 Children (Jersey) Law 2002, Art 54 Children (Northern Ireland) Order 1995, Art 117 Children (Northern Ireland) Order 1995, Art 132 Children (Northern Ireland) Order 1995, Art 68 Children (Northern Ireland) Order 1995, Art 69 Children (Northern Ireland) Order 1995, Art 79 Children (Northern Ireland) Order 1995, Art 81 Children (Northern Ireland) Order 1995, Art 95 Children (Northern Ireland) Order 1995, Art 97

Children (Jersey) Law 2002, Art 37

Obstructing a person exercising a power to remove, or prevent the removal of, a child Abduction of children in care, etc [taking or keeping a child, inducing, assisting or inciting to run or stay away) Obstructing a person exercising a power to remove a child Carrying on a voluntary home when not registered Offences relating to private fostering Offences relating to childminding and daycare Abduction of children in care, etc Obstructing an authorised person exercising power to remove a child Carrying on an unregistered voluntary home Failing to comply with conditions of registration of a voluntary home Carrying on an unregistered children's home Failing to comply with conditions of registration of a children's home Causing, procuring or allowing a child to take part in or be trained to take part in performances of a dangerous nature Offences in connection with orders etc. for protection of children Harbouring Offences in relation to parental responsibilities orders Offences relating to private fostering Abduction of children in care etc Obstructing an authorised person exercising power to remove a child Offences relating to voluntary homes and children's homes Offences relating to private fostering Obstruction Offences relating to childminding and daycare for young children Acting as a child-minder or providing day care whilst unregistered Registered person contravening or failing to comply with a condition of registration Offences relating to voluntary homes and children's homes Offences relating to voluntary homes and children's homes Harbour or conceal a child or young person subject of a special care order Assist or induce a child or young person to escape from custody Without lawful authority take a child or young person away from custody

List of Offences that will Never be Filtered

333

334

Children and Young Persons Act (Northern Ireland) 1968, s105(8) Children and Young Persons Act (Northern Ireland) 1968, s127(5) Children and Young Persons Act (Northern Ireland) 1968, s129(3) Children and Young Persons Act (Northern Ireland) 1968, s14

Children and Young Persons Act (Northern Ireland) 1968, s101

Children and Young Persons (Scotland) Act 1937, s33 Children and Young Persons (Scotland) Act 1937, s34 Children and Young Persons (Scotland) Act 1937, s71 Children and Young Persons (Scotland) Act 1969, s32

Children and Young Persons (Guernsey) Law 1967, s9(2)(c) Children and Young Persons (Scotland) Act 1937, s1 Children and Young Persons (Scotland) Act 1937, s12 Children and Young Persons (Scotland) Act 1937, s13 Children and Young Persons (Scotland) Act 1937, s14 Children and Young Persons (Scotland) Act 1937, s15 Children and Young Persons (Scotland) Act 1937, s22 Children and Young Persons (Scotland) Act 1937, s3

Children and Young Persons (Guernsey) Law 1967, s29(2) Children and Young Persons (Guernsey) Law 1967, s31(6) Children and Young Persons (Guernsey) Law 1967, s9(1) Children and Young Persons (Guernsey) Law 1967, s9(2)(a) Children and Young Persons (Guernsey) Law 1967, s9(2)(b)

Children and Young Persons (Guernsey) Law 1967, s13(2)(c) Children and Young Persons (Guernsey) Law 1967, s23(5)

Children and Young Persons (Guernsey) Law 1967, s11(11)(c) Children and Young Persons (Guernsey) Law 1967, s13(2)(a) Children and Young Persons (Guernsey) Law 1967, s13(2)(b)

Harbour or conceal a child or young person who has escaped or been taken away from custody Assist or induce a child or young person to run away from care Without lawful authority take a child or young person away from care Harbour or conceal a child or young person who has run away / been taken away from care Publishing details of proceedings involving children and young persons Parent failing to notify change of address where child or young person is in care of local authority / fit person Person failing to notify change of address where subject to an arrears order Concealing a child or young person who has run or been taken away from care Assist or induce a child or young person to run away from care Without lawful authority take a child or young person away from care Harbour or conceal a child or young person who has run away / been taken away from care Assault, ill-treat or abandon a child Cruelty to persons under 16 Child procuration Allowing a child to reside in a brothel Causing or allowing persons under 16 to be used for begging Exposing children under 7 to risk of burning Permitting a child to reside in or frequent a brothel Causing, procuring or allowing a child to take part in performances of a dangerous nature Training a person under 12 for a dangerous performance Harbouring or concealing a missing child Compelling, persuading, inciting or assisting child to be absent from detention Compelling, persuading, inciting or assisting child to be absent from a place of saftey Harbouring or concealing a child who has run away or been taken away from a place of safety Offences relating to voluntary homes and children's homes Offences relating to voluntary homes and children's homes Offences relating to childminding and daycare

List of Offences that will Never be Filtered

335

Children and Young Persons Act 1969, s32(3) Children and Young Persons Act 2001, s48 Children and Young Persons Act 2001, s51 Children and Young Persons Act 2001, s52 Children and Young Persons Act 2001, s58 Children and Young Persons Act 2001, s59 Children and Young Persons Act 2001, s60 Children and Young Persons Act 2001, s64 Children and Young Persons Act 2001, s65 Children and Young Persons Act 2001, s98 Children and Young Persons Act 2001, schedule 6, para 3 Children and Young Persons Act 2001, schedule 6, para 7

Children and Young Persons Act 1966, s98(a)

Children and Young Persons Act (Northern Ireland) 1968, s140(5) Children and Young Persons Act (Northern Ireland) 1968, s144(3) Children and Young Persons Act (Northern Ireland) 1968, s20 Children and Young Persons Act (Northern Ireland) 1968, s21 Children and Young Persons Act (Northern Ireland) 1968, s22 Children and Young Persons Act (Northern Ireland) 1968, s23 Children and Young Persons Act (Northern Ireland) 1968, s24 Children and Young Persons Act (Northern Ireland) 1968, s29 Children and Young Persons Act (Northern Ireland) 1968, s88(4) Children and Young Persons Act (Northern Ireland) 1968, s9(1) Children and Young Persons Act 1933, s1 Children and Young Persons Act 1933, s85(3) Children and Young Persons Act 1966, s1 Children and Young Persons Act 1966, s10 Children and Young Persons Act 1966, s19 Children and Young Persons Act 1966, s20 Children and Young Persons Act 1966, s4 Children and Young Persons Act 1966, s9

Harbouring or concealing a child who has run away Harbouring or concealing a child who has run away Cruelty to persons under 16 Causing or encouraging seduction or prostitution of girl under 17 Indecent conduct towards child Allowing children or young persons to be in brothels Causing or allowing persons under 16 to be used for begging Exposing children under 12 to risk of burning Harbour or conceal child or young person from training school Offences relating to private fostering Cruelty to children Assist, induce, harbour or conceal a child to run away from care Cruelty, neglect etc. of children Failing to provide for safety of children at entertainments Allowing person under 16 to take part in dangerous performance Training a person under 12 for a dangerous performance Using person under 16 for begging Exposing child under 12 to risk of burning Taking, keeping, inducing, assisting or inciting a child to run away from a responsible person Compel, persuade, incite or assist another person to become or continue to be absent from care Abduction of person in care Using a home as a children's home without being registered Concerned in children's home whilst disqualified Provide private fostering whilst disqualified Provide provate fostering in contravention of a prohibition Fail to give, or give false or misleading notification Act as a child minder or provide day care without being registered Concerned in the provision of child care whilst disqualified Obstruction Carry on children's home in contravention of conditions Fail to display certificate of registration

List of Offences that will Never be Filtered

Attempting to commit an offence Violating female heir to Crown Levying war or adhering to the King or Queen's enemies Slaying Governor, etc Inciting to mutiny Discharging or aiming firearms, etc, at Sovereign Murder Conspiring or soliciting to commit murder Manslaughter Administering poison, or wounding with intent to murder Destroying or damaging a building with explosive with intent to murder Firing or casting away a ship with intent to murder Attempting to poison, shoot, or drown, etc, with intent to murder Otherwise attempting to murder Threats to kill Shooting or wounding with intent to do grievous bodily harm

Criminal Attempts and Conspiracy (Northern Ireland) Order 1983, Art 3 Criminal Code 1872, s3 Criminal Code 1872, s4 Criminal Code 1872, s5 Criminal Code 1872, s11 Criminal Code 1872, s12 Criminal Code 1872, s18 Criminal Code 1872, s19 Criminal Code 1872, s20 Criminal Code 1872, s23 Criminal Code 1872, s24 Criminal Code 1872, s25 Criminal Code 1872, s26 Criminal Code 1872, s27 Criminal Code 1872, s31 Criminal Code 1872, s33

Childrens Hearings (Scotland) Act 2011, s171 Civic Government (Scotland) Act 1982, s46(1) Civic Government (Scotland) Act 1982, s52 Civic Government (Scotland) Act 1982, s52A Common law Common law Common law Common law Coroners and Justice Act 2009, s62 Coroners and Justice Act 2009, s71 Crime and Disorder Act 1998, s29 Crime and Disorder Act 1998, s31(1)(a) Crime and Disorder Act 1998, s31(1)(b) Crime and Disorder Act 1998, s32(1)(b)

Child-minder, day care provdier in breach of certificate of registration Assist, induce, harbour or conceal a child to abscond or prevent them from returning Soliciting and importuning Indecent photographs etc. of children Possession of indecent photographs of children Outraging Public Decency Indecent Exposure Riot Affray Possession of prohibited images of children Slavery, servitude and forced or compulsory labour Racially or religously aggravted assault Racially or religiously aggravated fear or provocation of violence Racially or religiously aggravated intentional harassment, alarm or distress Racially or religiously aggravated fear of violence

Children and Young Persons Act 2001, schedule 7, para 3

List of Offences that will Never be Filtered

336

Criminal Code 1872, s44 Criminal Code 1872, s45 Criminal Code 1872, s46 Criminal Code 1872, s48 Criminal Code 1872, s51 Criminal Code 1872, s59 Criminal Code 1872, s60 Criminal Code 1872, s69 Criminal Code 1872, s118 Criminal Code 1872, s130 Criminal Code 1872, s136 Criminal Code 1872, s332 Criminal Damage (Bailiwick of Guernsey) Law 1983, s1(1) Criminal Damage (Bailiwick of Guernsey) Law 1983, s1(2) Criminal Damage (Bailiwick of Guernsey) Law 1983, s3(b) Criminal Damage (Northern Ireland) Order 1977, Art 3(2) Criminal Damage (Northern Ireland) Order 1977, Art 3(3) Criminal Damage Act 1971, s1 Criminal Damage Act 1971, s1(2) Criminal Damage Act 1981, s1 Criminal Damage Act 1981, s1(2) Criminal Jurisdiction (Northern Ireland) Act 1975, s2(1)

Criminal Code 1872, s41 Criminal Code 1872, s42 Criminal Code 1872, s43

Criminal Code 1872, s38

Criminal Code 1872, s35 Criminal Code 1872, s36 Criminal Code 1872, s37

Inflicting bodily injury, with or without weapon Attempting to choke, etc, in order to commit any indictable offence Using chloroform etc to commit any indictable offence Maliciously administering poison, etc, so as to endanger life, or inflict grievous bodily harm Neglecting to provide wife, children, apprentices or servants with food whereby life is endangered Exposing children whereby life is endangered Causing bodily injury by explosives Causing gunpowder to explode, or sending explosive, or throwing corrosive fluid with intent to fo grievous bodily harm Placing explosive near a building with intent to do bodily injury Setting spring guns etc with intent to do grevious bodily harm Causing bodily harm by furious driving Assault with intent to commit felony, or on peace officers etc Aggravated assault where victim was under 16 Unlawful detention and kidnapping Child stealing, harbouring or receiving stolen child Endangering safety of travellers Exhibiting false signals, etc Making or having gunpowder, etc, with intent to endanger life or damage property Riot Arson Criminal damage endangering life Possessing anything with intent to destroy or damage property endangering life Criminal damage endangering life Arson Arson Destroying or damaging property endangering life Arson Destroying or damaging property endangering life Hijacking of ships

List of Offences that will Never be Filtered

337

Criminal Justice (Scotland) Act 1980, s80(7) Criminal Justice (Scotland) Act 1980, s80(12) Criminal Justice (Scotland) Act 1980, s80(4) Criminal Justice (Scotland) Act 1980, s80(9) Criminal Justice (Scotland) Act 2003, s22 Criminal Justice Act (Northern Ireland) 1945, s25 Criminal Justice Act (Northern Ireland) 1966, s13 Criminal Justice Act 1988, s134 Criminal Justice Act 1988, s160 Criminal Justice Act 2001, schedule 3 Criminal Justice And Court Services Act 2000, s35 Criminal Justice and Immigration Act 2008, s63 Criminal Justice And Licensing (Scotland) Act 2010, s30 Criminal Justice Police And Courts Act 2006, s3(1)(a) Criminal Law Amendment Act (1895), Art 4 Criminal Law (Consolidation) (Scotland) Act 1995, s1 Criminal Law (Consolidation) (Scotland) Act 1995, s10

Criminal Justice (Miscellaneous Provisions) Law 2006, s8(1) Criminal Justice (Miscellaneous Provisions) Law 2006, s9(1) Criminal Justice (Northern Ireland) Order 1980, Art 9 Criminal Justice (Northern Ireland) Order 2003, Art 19 Criminal Justice (Northern Ireland) Order 2003, Art 20 Criminal Justice (Northern Ireland) Order 2003, Art 21

Riotous, disorderly and indecent behaviour, etc Threats to kill Maliciously administering poison etc so as to endanger life or inflict grevious bodily harm Mailiciously administering poison etc with intent to injure, aggrieve or annoy Inciting girl under 16 to have incestuous sexual intercourse Buggery Assault with intent to commit buggery Indecent assault on a male Commit or procure the commission of a homosexual act which is non-consensual or with another aged under 16 Living on earnings of another from male prostitution Gross indecency Procure or attempt to procure homosexual act between two other males Traffic in prostitution etc Child destruction Aiding and abetting suicide of a child or young person Torture Possession of indecent photograph of child Possess, make, distribute etc, indecent images of children Person working, etc, in regulated position whilst disqualified Possession of extreme pornographic image Directing serious organised crime Possession of firearm with intent to cause fear of violence Sexual intercourse with a person under 16 years of age Incest Seduction, prostitution, etc., of girl under 16

Criminal damage endangering life

Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968, s7

Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968, s9 Criminal Justice (Miscellaneous Provisions) Law 2006, s1(1)

Possession of indecent photograph of child Slavery, servitude and forced or compulsory labour

Criminal Justice (Evidence etc,) (Northern Ireland) Order 1988, Art 15 Criminal Justice (International Co-operation) Act 1990, s47

List of Offences that will Never be Filtered

338

339

Criminal Law Amendment Act 1885, s2 Criminal Law Amendment Act 1885, s3 Criminal Law Amendment Act 1885, s4 Criminal Law Amendment Act 1885, s5 Criminal Law Amendment Act 1885, s6 Criminal Law Amendment Act 1885, s7 Criminal Law Amendment Act 1885, s8 Criminal Law Amendment Act 1895, s1 Criminal Law Amendment Act 1895, s2 Criminal Law Amendment Act 1895, s4 Criminal Law Amendment Act 1895, s5 Criminal Law Amendment Act 1922, s4

Criminal Law Amendment Act 1885, s11 Criminal Law Amendment Act 1885, s13

Criminal Law (Consolidation) (Scotland) Act 1995, s16A Criminal Law (Consolidation) (Scotland) Act 1995, s16B Criminal Law (Consolidation) (Scotland) Act 1995, s2 Criminal Law (Consolidation) (Scotland) Act 1995, s3 Criminal Law (Consolidation) (Scotland) Act 1995, s5 Criminal Law (Consolidation) (Scotland) Act 1995, s6 Criminal Law (Consolidation) (Scotland) Act 1995, s7 Criminal Law (Consolidation) (Scotland) Act 1995, s8 Criminal Law (Consolidation) (Scotland) Act 1995, s9 Criminal Law Act 1977, s54 Criminal Law Act 1977, s1 Criminal Law Act 1977, s1A Criminal Law Act 1981, s2(1)

Criminal Law (Consolidation) (Scotland) Act 1995, s11 Criminal Law (Consolidation) (Scotland) Act 1995, s12 Criminal Law (Consolidation) (Scotland) Act 1995, s13

Outrages on decency - gross indecency, where the person with whom the offence was committed was under the age of 16 or did not consent to the act Brothel keeping Procuration, where the person with whom the offence was committed was under the age of 16 or did not consent to the act Procuring defilement of woman by threats or fraud, or administering drugs Defilement of girl under 13 years of age Defilement of girl between 13 and 16 years of age Householder, etc, permitting defilement of young girl on his premises Abduction of girl under 18 with intent to have carnal knowledge. Unlawful detention with intent to have carnal knowledge Procuring woman by threats, false pretences, or administering drugs Unlawful sexual intercourse with child under 16 Unlawful sexual intercourse with mentally deranged female Permitting girl under 16 to frequent premises for unlawful sexual intercourse Lewd and libidinous practices towards a girl under 16

Trading in prostitution and brothel-keeping Allowing child to be in brothel Living on earnings of another from male prostitution Conspiracy or incitement to commit certain sexual acts outside the United Kingdom Commission of certain sexual acts outside the United Kingdom Intercourse with step-child Intercourse of person in position of trust with child under 16 Intercourse with girl under 16 Indecent behaviour towards girl between 12 and 16 Procuring Abduction and unlawful detention Permitting girl to use premises for intercourse Inciting girl under 16 to have incestuous sexual intercourse Conspiracy Conspiracy to commit offences outside the United Kingdom Aiding, abetting, counselling or procuring another's suicide or attempted suicide

List of Offences that will Never be Filtered

340

Importing restricted or prohibited goods Exporting restricted or prohibited goods Fraudulent evasion of duty, etc where the prohibited goods included indecent photographs of children under the age of 16; or indecent or obscene articles. Fraudulent evasion of duty, etc where the prohibited goods included indecent photographs of children under the age of 16; or indecent or obscene articles. Unlawful importation of indecent or obscene articles Improper importation of indecent or obscene articles Firing upon a vessel of HM Customs Fraudulent evasion of duty, etc where the prohibited goods included indecent photographs of children under the age of 16; or indecent or obscene articles.

Customs And Excise (General Provisions) (Bailiwick Of Guernsey) Law 1972, s23

Customs And Excise (General Provisions) (Bailiwick Of Guernsey) Law 1972, s30

Customs And Excise (General Provisions) (Bailiwick Of Guernsey) Law 1972, s77

Customs And Excise (Jersey) Law 1999, Art 61 Customs And Excise Act 1952, s44 Customs And Excise Act 1952, s45 Customs And Excise Act 1952, s72

Customs and Excise Management Act 1979, s170

Day Care of Children (Jersey) Law 2002, Art 12(e) Day Care of Children (Jersey) Law 2002, Art 12(f) Domestic Violence, Crime and Victims Act 2004, s5 Drug Trafficking (Bailiwick of Guernsey) Law 2000, s38(1)(b) Explosive Substances (Jersey) Law 1884, Art 2

Day Care of Children (Jersey) Law 2002, Art 12(c) Day Care of Children (Jersey) Law 2002, Art 12(d)

Fraudulent evasion of duty, etc where the prohibited goods included indecent photographs of children under the age of 16; or indecent or obscene articles. Unlawful importation of indecent or obscene articles Breach of protection order by molesting applicant or child of applicant Allows children to be received into day care accomodation which is not registered Acts as a day carer without being so registered Acting as a day carer, or manage, have a financial interest in or employ a person in day care, whilst disqualified Making false or misleading statements in an application for registration Failing to comply with conditions or requirements of registration in respect of day care accommodation and day carers Obstructing an officer exercising powers of entry and / or inspection Causing or allowing the death of a child or vulnerable adult Supplying a scheduled substance to a child (under 16) Causing an explosion likely to endanger life or property

Fraudulent evasion of duty, etc where the prohibited goods included indecent photographs of children under the age of 16; or indecent or obscene articles.

Customs And Excise (General Provisions) (Jersey) Law 1972, Art 77

Customs and Excise Management Act 1986, s178 Customs Consolidation Act 1876, s42 Domestic Proceedings (Northern Ireland) Order 1980, Art 19(1)(a) Day Care of Children (Jersey) Law 2002, Art 12(a) Day Care of Children (Jersey) Law 2002, Art 12(b)

Aid, abet, counsel or procure the commission of an offence Aid, abet, counsel or procure the commission of an offence Attempt to commit an indictable offence

Criminal Offences (Jersey) Law 2009, Art 1 Criminal Procedure (Scotland) Act 1995, s293 Criminal Procedure (Scotland) Act 1995, s294

List of Offences that will Never be Filtered

Explosive Substances Act 1939, s3(1)(b) Explosive Substances Act 1939, s4 Explosive Substances Act 1939, s5 Explosives Act 1875, s77 Female Genital Mutilation Act 2003, s1 Female Genital Mutilation Act 2003, s2 Female Genital Mutilation Act 2003, s3 Fire Service (Jersey) Law 1959, Art 14 Firearms (Guernsey) Law 1983, s14 Firearms (Guernsey) Law 1983, s15 Firearms (Guernsey) Law 1983, s16 Firearms (Guernsey) Law 1998, s17 Firearms (Guernsey) Law 1998, s18 Firearms (Guernsey) Law 1998, s19 Firearms (Jersey) Law 1956, Art 24 Firearms (Jersey) Law 1956, Art 25 Firearms (Jersey) Law 2000, Art 38 Firearms (Jersey) Law 2000, Art 39 Firearms (Jersey) Law 2000, Art 40 Firearms (Northern Ireland) Act 1969, s14 Firearms (Northern Ireland) Order 1981, Art 17 Firearms (Northern Ireland) Order 1981, Art 18 Firearms (Northern Ireland) Order 1981, Art 19

Explosive Substances Act 1883, s3 Explosive Substances Act 1883, s4 Explosive Substances Act 1939, s2 Explosive Substances Act 1939, s3(1)(a)

Explosive Substances (Jersey) Law 1884, Art 3 Explosive Substances (Jersey) Law 1884, Art 4 Explosive Substances (Jersey) Law 1884, Art 6 Explosive Substances Act 1883, s2

Commit act involving explosive substance with intent to endanger life or property Making or possessing explosives for an unlawful purpose Aid and abet an explosives offence Causing explosions likely to endanger life or property Attempt to cause explosions or making or keeping explosive w/I to endanger life or property Making or possessing explosives with intent to endanger life or property Causing explosions likely to endanger life or property Intending or conspiring to cause explosions endangering life or property Making, possessing or having control of explosives with intent to endanger life or property Making, possessing or having control of explosives for unlawful purposes Being an accessory to explosive offences Trespass in gunpowder factory etc causing explosions or fire Female genital mutilation Assisting a girl to mutilate her own genitalia Assisting a non-uk person to mutilate overseas a girls genitalia Arson Possession of firearm with intent to endanger life Using firearm with intent to resist arrest or commit an offence Carrying firearm with intent to prevent arrest Possession of firearm with intent to endanger life Using firearm with intent to resist arrest or commit an offence Carrying firearm with intent to resist arrest or commit an indictable offence Possession of firearm with intent to endanger life or cause serious injury Using firearm with intent to resist or prevent arrest Possession of firearm with intent to injure Use of firearms to resist arrest, etc Carrying firearm with criminal intent Possession of firearm with intent Possession of firearm with intent to endanger life or cause fear of violence Carrying firearm with intent to resist arrest or commit an offence Carrying firearm with intent

List of Offences that will Never be Filtered

341

342

Health and Social Care Act 2008, s36 Health and Social Care Act 2008, s37 Health and Social Care Act 2008, s63 Health and Social Care Act 2008, s64 Health and Social Care Act 2008, s65 Health and Social Care Act 2008, s76 Health and Social Care Act 2008, s10 Hijacking Act 1971, s1

Health and Social Care Act 2008, s35

Health and Social Care Act 2008, s34

Firearms Act 1968, s17(2) Firearms Act 1968, s18 Foster Children (Scotland) Act 1984, s15 Foster Children Act 1980, s16 Genocide Act 1969, s1 Health and Social Care Act 2008, s10 Health and Social Care Act 2008, s33

Firearms (Northern Ireland) Order 2004, Art 58 Firearms (Northern Ireland) Order 2004, Art 59 Firearms (Northern Ireland) Order 2004, Art 60 Firearms (Sark) Law 2001, s16 Firearms (Sark) Law 2001, s17 Firearms (Sark) Law 2001, s18 Firearms Act 1947, s22 Firearms Act 1947, s23 Firearms Act 1968, s1 Firearms Act 1968, s16 Firearms Act 1968, s16A Firearms Act 1968, s17(1)

Possession of firearm with intent Use of firearms to resist arrest Carrying firearm with criminal intent Possession of firearm with intent Use of firearm with intent to resist arrest Carrying firearm with criminal intent Possessing firearm with intent Use of firearm with intent to resist arrest Carrying firearm with intent to resist arrest or commit indictable offence Possession of a firearm w/I to endanger life Possession of a firearm w/I to cause fear of violence Use firearm to resist arrest Possession of firearm at time of committing or arrest for offence in schedule 1 of Firearms Act Carrying a firearm with criminal intent Offences relating to foster children Offences relating to private fostering Genocide Carrying on a regulated activity without being registered Registered person failing to comply with any condition of registration Registered person carrying on regulated activity whilst registration in suspended or cancelled Contravention of regulations regarding registration in respectr of provision of health or social care False description of concerns, premises, persons etc as involved in or providing a service in respect of regulated activity False statements in applications relating to registration Obstructing or failing to comply with person exercising right of entry or inspection Failing to comply with requirement to provide documents and information, etc Failing to provide an explanation of any relevant matter to the Commission Disclosure of confidential personal information Carrying on regulated activity without being registered Hijacking

List of Offences that will Never be Filtered

343

Human trafficking Kidnapping or false imprisonment with intent to commit a slavery or human trafficking offence Importing obscene articles Incestuous sexual intercourse Incest and related offences Indecent conduct towards young child Child destruction Infanticide Infanticide Child destruction Infanticide Genocide, crimes against humanity and war crimes Conduct ancillary to genocide, etc committed outside jurisdiction Supply of intoxicating substances to a child (under 16) Robbery Housebreaking with intent to commit felony Administering or causing to be taken any drug or substance to have unlawful carnal intervourse with a woman or a girl Brothel keeping Causing a girl under the age of 18 years to have illicit carnal intercourse Causing a woman or girl to become a prostitute or to reside in a brothel Making, or attempting to make a woman or a girl have unlawful carnal intercourse with another person Unlawful carnal intercourse with a woman or girl by false pretences, false representations, threats or intimidation Unlawful carnal intercourse with a child under 13 years of age Unlawful carnal intercourse with a child under 16 years of age or with a person of insane mind

Human Trafficking & Exploitation (Support for Victims) (NI) Act 2015, s.2

Human Trafficking & Exploitation (Support for Victims) (NI) Act 2015, s.4(3) Import Export (Control) (Jersey) Law 1946 Incest Act 1567 Incest And Related Offences (Scotland) Act 1986, s1 Indecency with Children Act 1960, s1 Infant Life (Preservation) Act 1929, s1 Infanticide Act (Northern Ireland) 1939, s1 Infanticide Act 1938, s1 Infanticide And Infant Life Preservation Act 1938, s1 Infanticide And Infant Life Preservation Act 1938, s2 International Criminal Court Act 2001, s51 International Criminal Court Act 2001, s52 Intoxicating Substances (Supply) Act 1985, s1 Larceny Act 1916, s23 Larceny Act 1916, s27

Law (1895) (Jersey) Criminal Law Amendment, Art 4

Law (1895) (Jersey) Criminal Law Amendment, Art 1 Law (1895) (Jersey) Criminal Law Amendment, Art 2

Law (1895) (Jersey) Criminal Law Amendment, Art 1

Law (1895) (Jersey) Criminal Law Amendment, Art 1 Law (1895) (Jersey) Criminal Law Amendment, Art 1 Law (1895) (Jersey) Criminal Law Amendment, Art 1 Law (1895) (Jersey) Criminal Law Amendment, Art 1

Procuring others to commit homosexual acts Living on earnings of another from male prostitution Administer prescription only medicine when not an appropriate practitioner

Homosexual Offences (Northern Ireland) Order 1982, Art 7 Homosexual Offences (Northern Ireland) Order 1982, Art 8 Human Medicines Regulations 2012, Reg 255(1)(b)

List of Offences that will Never be Filtered

Procuring Procuring by threats, false pretences or drugs Exercising control over prostitutes Intercourse with a girl under 13 Intercourse with a girl under 16 Intercourse with a defective Permitting girl under 13 to use premises for intercourse Permitting girl under 16 to use premises for intercourse Abducting girl under 18 Detaining woman in a brothel Man living on immoral earnings of prostitution Soliciting Incest Incest Buggery / Bestiality Indecent assault Gross indecency

Law for the Protection of Women and Young Girls (Guernsey) 1914, Art 1(2)

Law for the Protection of Women and Young Girls (Guernsey) 1914, Art 12

Law for the Protection of Women and Young Girls (Guernsey) 1914, Art 2

Law for the Protection of Women and Young Girls (Guernsey) 1914, Art 3(a)

Law for the Protection of Women and Young Girls (Guernsey) 1914, Art 3(b)

Law for the Protection of Women and Young Girls (Guernsey) 1914, Art 4(a)

Law for the Protection of Women and Young Girls (Guernsey) 1914, Art 4(b)

Law for the Protection of Women and Young Girls (Guernsey) 1914, Art 5

Law for the Protection of Women and Young Girls (Guernsey) 1914, Art 6

Law for the Protection of Women and Young Girls (Guernsey) 1914, Art 9(a)

Law for the Protection of Women and Young Girls (Guernsey) 1914, Art 9(b) Law for the Punishment of Incest (Guernsey) 1909, s1 Law for the Punishment of Incest (Guernsey) 1909, s5 Law relating to Sodomy (Guernsey) 1929, s1 Law relating to Sodomy (Guernsey) 1929, s2 Law relating to Sodomy (Guernsey) 1929, s3

Allowing a child under the age of 16 to use premises for the purposes of prostitution or unlawful carnal intercourse Controlling a woman or girl against her will for the purposes of prostitution or unlawful carnal intercourse

Law for the Protection of Women and Young Girls (Guernsey) 1914, Art 1(1)

Law (1895) (Jersey) Criminal Law Amendment, Art 6

Law (1895) (Jersey) Criminal Law Amendment, Art 5

List of Offences that will Never be Filtered

344

345

Causing girl under 16 to become a prostitute All offences contrary to Abandoning child under 2 Abducting girl under 16 Child stealing, receiving or harbouring a stolen child Causing child to take part in a dangerous performance Cruelty to a child

Law relating to the Protection of Children and Young Persons (Guernsey) 1917, Art 12

Law relating to the Protection of Children and Young Persons (Guernsey) 1917, Art 41(1)

Law relating to the Protection of Children and Young Persons (Guernsey) 1917, Art 51(1)

Law relating to the Protection of Children and Young Persons (Guernsey) 1917, Art 51(2)

Law relating to the Protection of Children and Young Persons (Guernsey) 1917, Art 51(3)

Law relating to the Protection of Children and Young Persons (Guernsey) 1917, Art 51(4)

Law relating to the Protection of Children and Young Persons (Guernsey) 1917, Art 7

Medicines Act 1968, s67(1A)

All offence contrary to Permitting licensed premises to be a brothel Placing explosives with intent to damage building or contents Arson and attempted arson Exhibiting false signals to endanger shipping Causing explosion endangering life Hijacking of ships Seizing or exercising control of fixed platforms Destroying ships or fixed platforms or endangering their safety Other acts endangering or likely to endanger safe navigation Impersonating a physician Supplying a medicinal product without authorisation Giving a prescription or directions or administering a medical product in contravention of the Act

Allowing person under 16 to reside in a brothel

Law relating to the Protection of Children and Young Persons (Guernsey) 1917, Art 11

Law relating to the Protection of Children and Young Persons (Guernsey) 1917, Art 9 Liquor Licensing Ordinance 2006, s31(2) Malicious Damage Act 1861, s10 Malicious Damage Act 1861, s1 to s8 Malicious Damage Act 1861, s47 Malicious Damage Act 1861, s9 Maritime Security Act 1995, s1 Maritime Security Act 1995, s2 Maritime Security Act 1995, s3 Maritime Security Act 1995, s4 Medical Act 1956, s31 Medicines Act 1968, s67

Exposing child under 7 to risk of burning

Law relating to the Protection of Children and Young Persons (Guernsey) 1917, Art 10

List of Offences that will Never be Filtered

Mental Capacity Act 2005, schedule 4, para 4 Mental Deficiency And Lunacy (Scotland) Act 1913, s46 Mental Health (Care and Treatment)(Scotland) Act 2003, s311 Mental Health (Care and Treatment)(Scotland) Act 2003, s313 Mental Health (Care and Treatment)(Scotland) Act 2003, s315 Mental Health (Jersey) Law 1969, Art 37 Mental Health (Jersey) Law 1969, Art 38 Mental Health (Northern Ireland) Order 1986, Art 119 Mental Health (Northern Ireland) Order 1986, Art 121 Mental Health (Northern Ireland) Order 1986, Art 122 Mental Health (Northern Ireland) Order 1986, Art 123 Mental Health (Northern Ireland) Order 1986, Art 124 Mental Health (Northern Ireland) Order 1986, Art 125 Mental Health (Scotland) Act 1960, s94 Mental Health (Scotland) Act 1960, s95 Mental Health (Scotland) Act 1960, s96 Mental Health (Scotland) Act 1960, s97 Mental Health (Scotland) Act 1960, s98 Mental Health (Scotland) Act 1984, s104 Mental Health (Scotland) Act 1984, s105 Mental Health (Scotland) Act 1984, s106 Mental Health (Scotland) Act 1984, s107 Mental Health (Scotland) Act 1984, s108 Mental Health (Scotland) Act 1984, s109 Mental Health Act 1959, s125 Mental Health Act 1959, s126 Mental Health Act 1959, s128 Mental Health Act 1959, s129 Mental Health Act 1974, s90

Mental Capacity Act 2005, schedule 1, para 4

Mental Capacity Act 2005, s44

Ill-treatenment or neglect Making false statements regarding the registration of an instrument - lasting power of attorney Making false statements regarding the registration of an instrument - lasting power of attorney Sexual offences against defectives Non-consensual sexual acts Persons providing care services: sexual offences Ill-treatment and wilful neglect Ill-treatment of patients Sexual offences against female patients Forgery, false statements, etc Ill-treatment of patients Protection of women suffering from severe mental handicap Protection of patients Assisting patients to absent themselves without leave Obstruction False statements Ill-treatment or neglect of patients Sexual offences against woman defective Unlawful sexual intercourse with mental patient by staff or guardian Assisting escape from mental institution or harbouring Forgery of documents Ill-treatment of patients Unlawful sexual intercourse with protected persons / patients Unlawful sexual intercourse with mentally handicapped female Assisting patients to absent themselves without leave etc Obstruction Forgery of documents Ill-treatment and wilful neglect Sexual intercourse with patients Assisting escape from mental institution or harbouring Forgery of documents

List of Offences that will Never be Filtered

346

347

Misuse of Drugs Act 1976, s20 Modern Slavery Act 2015, s1 Modern Slavery Act 2015, s2 Nationality, Immigartion and Asylum Act 2002, s145 Naval Discipline Act 1957, s42 Northern Ireland (Emergency Provisions) Act 1978, s23

Misuse of Drugs Act 1971, s4(3) Misuse of Drugs Act 1976, s4(3)

Misuse of Drugs (Jersey) Law 1978, Art 21 Misuse of Drugs (Jersey) Law 1978, Art 5 Misuse of Drugs (Jersey) Law 1978, Art 6 Misuse of Drugs (Jersey) Law 1978, Art 7

Misuse of Drugs (Jersey) Law 1978, Art 20

Mental Health Act 1974, s91 Mental Health Act 1974, s94 Mental Health Act 1983, s126 Mental Health Act 1983, s127 Mental Health Act 1983, s128 Mental Health Act 1983, s129 Mental Health Act 1998, s122 Mental Health Act 1998, s123 Mental Health Act 1998, s124 Mental Health Act 1998, s125 Merchant Shipping (Bailiwick Of Guernsey) Law 2002, s211 Merchant Shipping (Bailiwick Of Guernsey) Law 2002, s86 Merchant Shipping Act 1894, s220 Merchant Shipping Act 1894, s666 Misuse of Drugs (Bailiwick of Guernsey) Law 1974, s3

Supplying or offering to supply, or being concerned in supplying or offering to supply, a controlled drug to a child (under 16) Supplying a controlled drug to a child (under 16) Assisting in or inducing commission outside the Island of offence punishable under a corresponding law involving supply or offering to supply drugs to a child (under 16) Slavery, servitude and forced or compulsory labour Human trafficking Traffic in prostitution Civil offences - equivalent offences Training in making or use of firearms, explosives or explosive substances

Ill-treatment and wilful neglect Assisting escape from mental institution or harbouring Forgery, false statements, etc. Ill-treatment of patients Assisting patients to absent themselves without leave, etc. Obstruction Forgery and false statements, etc Ill-treatment of patients Assisting patients to absent themselves without leave Obstruction Damage, etc to lighthouses, etc Failure to report dangers to navigation Endangering ship by misconduct Maliciously damage a lighthouse Supplying a controlled drug to a child (under 16) Aid or abet a drugs offence where drugs were supplied or offered to be supplied to a child (under 16) Attempt, incite, aid, abet or assist drugs offence where drugs were supplied or offered to be supplied to a child (under 16) Supplying a controlled drug to a child (under 16) Supplying a scheduled substance to a child (under 16) Supplying a scheduled substance to a child (under 16)

List of Offences that will Never be Filtered

348

Offences Against the Person Act 1861, s23 Offences Against the Person Act 1861, s27 Offences Against the Person Act 1861, s28 Offences Against the Person Act 1861, s29 Offences Against the Person Act 1861, s30 Offences Against the Person Act 1861, s31 Offences Against the Person Act 1861, s32 Offences Against the Person Act 1861, s35 Offences Against the Person Act 1861, s37 Offences Against the Person Act 1861, s38 Offences Against the Person Act 1861, s4 Offences Against the Person Act 1861, s42 Offences Against the Person Act 1861, s43

Offences Against the Person Act 1861, s22

Offences Against the Person Act 1861, s21

Nuclear Material (Offences) Act 1983, s1 Nurses and Midwives Act (Northern Ireland) 1970, s14(1)(b) Nursing Homes Registration (Scotland) Act 1938, s4(3) Obscene Publications (Bailiwick of Guernsey) Law 1985, s1(1)(a) Offences Against the Person Act 1861, s16 Offences Against the Person Act 1861, s18 Offences Against the Person Act 1861, s20

Northern Ireland (Emergency Provisions) Act 1978, s32 Northern Ireland (Emergency Provisions) Act 1991, s27 Northern Ireland (Emergency Provisions) Act 1991, s30 Northern Ireland (Emergency Provisions) Act 1991, s32 Northern Ireland (Emergency Provisions) Act 1996, s29 Northern Ireland (Emergency Provisions) Act 1996, s32 Northern Ireland (Emergency Provisions) Act 1996, s34

Possession of items for terrorist purposes Directing activities of a terrorist organisation Possession of items for terrorist purposes Training in making or use of firearms or explosives Directing activities of a terrorist organisation Possession of items for terrorist purposes Training in making or use of firearms or explosives Offences committed outside the United Kingdom in relation to or by means of nuclear material Falsely claim to be registered Fail to complete appropriate records Importing or exporting obscene publications Threats to kill Wounding with intent to cause grevious bodily harm Malicious wounding Attempt to choke, suffocate or strangle in order to commit or assist in committing any indictable offence Using chloroform etc to commit or assist in the committing of any indictable offence Maliciously administering poison etc so as to endanger life or inflict grevious bodily harm Exposing children whereby life is endangered Causing bodily injury by explosives Using explosives etc with intent to do grevious bodily harm Placing explosives with intent to do bodily injury Setting spring guns etc with intent to do grevious bodily harm Endangering the safety of railway passengers Injuring persons by furious driving Assaulting officer preserving wreck Assault with intent to resist arrest Soliciting murder Common Assault or Battery where victim was under 16 Aggravated assault against a child or young person

List of Offences that will Never be Filtered

Offences Against the Person Act 1861, s61 Offences Against the Person Act 1861, s62 Petty Sessions and Summary Jurisdiction Act 1927, s56(2) Petty Sessions and Summary Jurisdiction Act 1927, s63(15) and (15A) Petty Sessions and Summary Jurisdiction Act 1927, s66(4) Pilotage Act 1913, s46 Pilotage Act 1983, s52 Prevention of Terrorism (Temporary Provisions) Act 1989, s16(A) Prevention of Terrorism (Temporary Provisions) Act 1989, s9 Prevention of Terrorism Act 2000, s57 Prison (Jersey) Law 1957, Art 29 Prohibition of Female Circumcision Act 1985, s1 Prohibition of Female Genital Mutilation (Scotland) Act 2005, s1 Prohibition of Female Genital Mutilation (Scotland) Act 2005, s3 Prohibition of Female Genital Mutilation (Scotland) Act 2005, s4 Protection from Harassment (Bailiwick of Guernsey) Law 2005, s3 Protection from Harassment (Northern Ireland) Order 1997, Art 6 Protection from Harrassment Act 1997, s4 Protection from Harrassment Act 1997, s4A Protection from Harrassment Act 2000, s4 Protection of Aircraft Act 1973, s1 Protection of Aircraft Act 1973, s16 Protection of Aircraft Act 1973, s2

Offences Against the Person Act 1861, s47 Offences Against the Person Act 1861, s48 Offences Against the Person Act 1861, s5 Offences Against the Person Act 1861, s52 Offences Against the Person Act 1861, s53 Offences Against the Person Act 1861, s54 Offences Against the Person Act 1861, s55 Offences Against the Person Act 1861, s56 Offences Against the Person Act 1861, s58

Assault ocassioning ABH Rape Manslaughter Indecent assault upon a female Abduction Abduction Abduction of a girl under 16 Child stealing, receiving or harbouring a stolen child Administering drugs Buggery, where the person with whom the offence was committed was under the age of 16 or did not consent to the act Indecent assault upon a male Aggravated assault, assault on a child or young person Indecent exposure Furious driving Endangering ship by misconduct Endangering ship by misconduct Possession of articles for terrorist purposes Contributing to acts of terrorism Possession of articles for terrorist purposes Conveying drugs to a prisoner Prohibition of female circumcision Female genital mutilation Aiding and abetting female genital mutilation Female genital mutilation - extra-territorial acts Putting people in fear of violence Putting people in fear of violence Putting people in fear of violence Stalking involving fear of violence or serious alarm or distress Putting people in fear of violence Destroying, damaging or endangering aircraft Possessing dangerous articles on aircraft, aerodrome or air navigation installation Destroying or damaging air navigation facility or endangering aircraft

List of Offences that will Never be Filtered

349

Causing or inciting provision by child of sexual services or child pornography Controlling a child providing sexual services or involved in pornography Arranging or facilitating provision by child of sexual services or child pornography

Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, s10

Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, s11

Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, s12

350

Meeting a child following certain preliminary contact Causing or inciting provision by child of sexual services or child pornography Controlling a child providing sexual services or involved in pornography Arranging or facilitating provision by child of sexual services or child pornography

Protection of Children (Bailiwick of Gurnsey) Law 1985, S3(1)(d) Protection of Children (Bailiwick of Gurnsey) Law 1985, s3A(1) Protection of Children (Jersey) Law 1994, Art 2 Protection of Children (Northern Ireland) Order 1978, Art 3 Protection of Children (Scotland) Act 2003, s11(1) Protection of Children Act 1978, s1 Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, s1

Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, s10

Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, s11

Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, s12

Protection of Children (Bailiwick of Gurnsey) Law 1985, s3(1)(c)

Protection of Children (Bailiwick of Gurnsey) Law 1985, s2 Protection of Children (Bailiwick of Gurnsey) Law 1985, s3(1)(a) Protection of Children (Bailiwick of Gurnsey) Law 1985, s3(1)(b)

Paying for sexual services of a child Gross indecency with/ towards a child or inciting a child to such an act Print, publish, sell or hire, or possess with intent to sell or hire, harmful publications which would tend to corrupt a child Take, permit or make and indecent photograps or pseudo-photographs of children Distribute or show indecent photograps or pseudo-photographs of children Possess indencent photographs or pseudo-photographs of children with intent to distribute or show to others Publish any advertisement regarding the distribution or showing of indecent photographs or pseudo-photographs of children Possess indecent photographs or pseudo-photographs of children Taking, or permitting to be taken, any indecent photograph of a child Indecent photographs of childrenN.I. Offences relating to working with children whilst disqualified Indecent photographs of children

Meeting a child following certain preliminary contact

Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, s1

Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, s9 Protection of Children (Bailiwick of Gurnsey) Law 1985, s1

Inducing or assisting an offence against aircraft

Protection of Aircraft Act 1973, s3

List of Offences that will Never be Filtered

Paying for sexual services of a child Offences relating to working with children whilst disqualified Use of petrol bombs, etc Barred person not to engage in regulated activity Organisations not to use barred individuals for regulated work Personnel suppliers not to supply barred individuals for regulated work Supply of psychoactive substance to a child (under 16) Riot Violent disorder Affray Riot Violent disorder Affray Affray Regulations: care servicesS Offences in relation to registration False statements in applications Incest by males Incest by females Carrying on a home whilst not registered Contravening or failing to comply with regulations Obstruction Carrying on a residential care home without being registered Carrying on a nursing home or mental nursing home without being registered Failing to display a certificate of registration Holding out premises as nursing home or maternity home Holding out premises as mental nursing home Contravening or failing to comply with regulations Contravening or failing to comply with regulations

Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, s9

Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003, Art 30

Protection of the Person and Property Act (Northern Ireland) 1969, s3 Protection of Vulnerable Groups (Scotland) Act 2007, s34 Protection of Vulnerable Groups (Scotland) Act 2007, s35 Protection of Vulnerable Groups (Scotland) Act 2007, s36 Psychoactive Substances Act 2016, s5 Public Order (Bailiwick of Guernsey) Law 2006, s1 Public Order (Bailiwick of Guernsey) Law 2006, s2 Public Order (Bailiwick of Guernsey) Law 2006, s3 Public Order Act 1986, s1 Public Order Act 1986, s2 Public Order Act 1986, s3 Public Order Act 1998, s1 Public Services Reform (Scotland) Act 2010, s78 Public Services Reform (Scotland) Act 2010, s80 Public Services Reform (Scotland) Act 2010, s81 Punishment of Incest Act 1908, s1 Punishment of Incest Act 1908, s2 Registered Homes (Northern Ireland) Order 1992, Art 17(1) Registered Homes Act 1984, s16(2) Registered Homes Act 1984, s17(6) Registered Homes Act 1984, s2 Registered Homes Act 1984, s23(1) Registered Homes Act 1984, s23(6) Registered Homes Act 1984, s24(1) Registered Homes Act 1984, s24(2) Registered Homes Act 1984, s26(e) Registered Homes Act 1984, s27(g)

List of Offences that will Never be Filtered

351

352

Road Traffic (Northern Ireland) Order 1995, Art 15 Road Traffic (Northern Ireland) Order 1995, Art 9 Road Traffic Act, 1960, s1 Road Traffic Act 1972, s1 Road Traffic Act 1985, s1 Road Traffic Act 1985, s1(a) Road Traffic Act 1985, s2(b) Road Traffic Act 1985, s2(c) Road Traffic Act 1985, s3(a) Road Traffic Act 1985, s3(b) Road Traffic Act 1988, s1 Road Traffic Act 1988, s3A Road Traffic Act 1988, s3ZB

Road Traffic (Northern Ireland) Order 1995, Art 14

Registered Homes Act 1984, s29(4) Registered Homes Act 1984, s35(5) Registered Homes Act 1984, s35(6) Registered Homes Act 1984, s5(5) Registered Homes Act 1984, s5(6) Regulation of Care (Scotland) Act 2001, s21 Regulation of Care (Scotland) Act 2001, s22 Regulation of Care (Scotland) Act 2001, s29(10) Representation of the People Act 1949, s101 Road Traffic (Drink Driving) (Guernsey) Law 1989, s1A Road Traffic (Jersey) Law 1956, Art 14a Road Traffic (Jersey) Law 1956, Art 23 Road Traffic (Jersey) Law 1956, Art 26 Road Traffic (Northern Ireland) Order 1981, Art 139 Road Traffic (Northern Ireland) Order 1981, Art 172(b) Road Traffic (Northern Ireland) Order 1995, Art 11(a) Road Traffic (Northern Ireland) Order 1995, Art 12(b)

Failing to comply with a condition of registration Obstruction Obstruction Failing to comply with a condition of registration Failing to display a certificate of registration Offences in relation to registration False statements in applications Offences under regulations Abduction Causing death by careless driving when under the influence of drink or drugs Causing death by dangerous driving Causing death by dangerous driving Causing death by careless driving when under the influence of drink or drugs Causing death or grievous bodily harm by reckless driving Aggravated vehicle taking causing death or grievous bodily injury Causing death or grievous bodily injury by careless or inconsiderate driving Causing death by driving whilst disqualified Causing death or grievous bodily injury by careless driving when under influence of drink or drugs Causing death or grievous bodily injury by careless or inconsiderate driving with excess alcohol Causing death or grievous bodily injury by dangerous driving Causing death by reckless or dangerous driving Causing death by reckless or dangerous driving Causing death by dangerous driving Causing serious bodily harm by dangerous driving Causing death by careless or inconsiderate driving Causing serious bodily harm by careless or inconsiderate driving Causing death by careless driving when under the influence of drink or drugs Causing death by driving whilst unlicensed, disqualified or uninsured Causing death by dangerous driving Causing death by careless driving when under the influence of drink or drugs Causing death by driving whilst unlicensed, disqualified or uninsured

List of Offences that will Never be Filtered

Safeguarding Vulnerable Groups (Northern Ireland) Order 2007, Art 11 Safeguarding Vulnerable Groups Act 2006, s19 Safeguarding Vulnerable Groups Act 2006, s7 Safeguarding Vulnerable Groups Act 2006, s9 Serious Crime Act 2007, s44 Serious Crime Act 2007, s45 Serious Crime Act 2007, s46 Sexual Offences (Amendment) Act 2000, s3 Sexual Offences (Bailiwick of Guernsey) Law 1983, s4 Sexual Offences (Bailiwick of Guernsey) Law 1983, s5 Sexual Offences (Conspiracy and Incitement) Act 1996, s1 Sexual Offences (Conspiracy and Incitement) Act 1996, s2 Sexual Offences (Jersey) Law 2007, Art 2 Sexual Offences (Jersey) Law 2007, Art 3 Sexual Offences (Jersey) Law 2007, Art 4 Sexual Offences (Jersey) Law 2007, Art 5 Sexual Offences (Jersey) Law 2007, Art 6 Sexual Offences (Northern Ireland) Order 1978, Art 3 Sexual Offences (Northern Ireland) Order 2008, Art 12 Sexual Offences (Northern Ireland) Order 2008, Art 13 Sexual Offences (Northern Ireland) Order 2008, Art 14 Sexual Offences (Northern Ireland) Order 2008, Art 15 Sexual Offences (Northern Ireland) Order 2008, Art 16 Sexual Offences (Northern Ireland) Order 2008, Art 17 Sexual Offences (Northern Ireland) Order 2008, Art 18 Sexual Offences (Northern Ireland) Order 2008, Art 19 Sexual Offences (Northern Ireland) Order 2008, Art 20 Sexual Offences (Northern Ireland) Order 2008, Art 21 Sexual Offences (Northern Ireland) Order 2008, Art 22 Sexual Offences (Northern Ireland) Order 2008, Art 23 Sexual Offences (Northern Ireland) Order 2008, Art 24

Barred person not to engage in regulated activity Permitting or supplying a barred person to engage in regulated activity Barred person not to engage in regulated activity Use of barred person for regulated activity Intentionally encouraging or assisting an offence Encouraging or assisting an offence believing it will be committed Encouraging or assisting offences believing one or more will be committed Abuse of position of trust Procuring others to commit homosexual acts Living on earnings of male prostitution Conspiracy to commit sexual offences outside the United Kingdom Incitement to commit sexual offences outside the United Kingdom Meeting a child following sexual grooming, etc Abuse of position of trust: sexual activity with a child Abuse of position of trust: causing or inciting a child to engage in sexual activity Abuse of position of trust: sexual activity in the presence of a child Abuse of position of trust: causing a child to watch a sexual act Rape Rape of a child under 13 Assault of a child under 13 by penertration Sexual assault of a child under 13 Causing or inciting a child under 13 to engage in sexual activity Sexual activity with a child Causing or inciting a child to engage in sexual activity Engaging in sexual activity in the presence of a child Causing a child to watch a sexual act Sexual offences against children committed by children or young persons Arranging or facilitating commission of a sex offence against a child Meeting a child following sexual grooming etc. Abuse of position of trust: sexual activity with a child Abuse of position of trust: causing or inciting a child to engage in sexual activity

List of Offences that will Never be Filtered

353

354

Sexual Offences (Northern Ireland) Order 2008, Art 50 Sexual Offences (Northern Ireland) Order 2008, Art 51 Sexual Offences (Northern Ireland) Order 2008, Art 52 Sexual Offences (Northern Ireland) Order 2008, Art 53 Sexual Offences (Northern Ireland) Order 2008, Art 54 Sexual Offences (Northern Ireland) Order 2008, Art 59 Sexual Offences (Northern Ireland) Order 2008, Art 6 Sexual Offences (Northern Ireland) Order 2008, Art 60 Sexual Offences (Northern Ireland) Order 2008, Art 61 Sexual Offences (Northern Ireland) Order 2008, Art 62

Sexual Offences (Northern Ireland) Order 2008, Art 49 Sexual Offences (Northern Ireland) Order 2008, Art 5

Sexual Offences (Northern Ireland) Order 2008, Art 48

Sexual Offences (Northern Ireland) Order 2008, Art 47

Sexual Offences (Northern Ireland) Order 2008, Art 45 Sexual Offences (Northern Ireland) Order 2008, Art 46

Sexual Offences (Northern Ireland) Order 2008, Art 44

Sexual Offences (Northern Ireland) Order 2008, Art 25 Sexual Offences (Northern Ireland) Order 2008, Art 26 Sexual Offences (Northern Ireland) Order 2008, Art 27 Sexual Offences (Northern Ireland) Order 2008, Art 32 Sexual Offences (Northern Ireland) Order 2008, Art 33 Sexual Offences (Northern Ireland) Order 2008, Art 37 Sexual Offences (Northern Ireland) Order 2008, Art 38 Sexual Offences (Northern Ireland) Order 2008, Art 39 Sexual Offences (Northern Ireland) Order 2008, Art 40 Sexual Offences (Northern Ireland) Order 2008, Art 42 Sexual Offences (Northern Ireland) Order 2008, Art 43

Abuse of position of trust: sexual activity in the presence of a child Abuse of position of trust: causing a child to watch a sexual act Abuse of position of trust: acts done in England and Wales or Scotland Sexual activity with a child family member Inciting a child family member to engage in sexual activity Paying for sexual services of a child Causing or inciting child prostitution or pornography Controlling a child prostitute or a child involved in pornography Arranging or facilitating child prostitution or pornography Indecent photographs of persons aged 16 or 17 Sexual activity with a person with a mental disorder impeding choice Causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity Engaging in sexual activity in the presence of a person with a mental disorder impeding choice Causing a person, with a mental disorder impeding choice, to watch a sexual act Inducement, threat or deception to procure sexual activity with a person with a mental disorder Causing a person with a mental disorder to engage in or agree to sexual activity by inducement, threat or deception Engaging in sexual activity in the presence, by inducement, threat or deception, of a person with a mental disorder Rape Causing a person with a mental disorder to watch a sexual act by inducement, threat or deception Care workers: sexual activity with a person with a mental disorder Care workers: causing or inciting sexual activity Care workers: sexual activity in the presence of a person with a mental disorder Care workers: causing a person with a mental disorder to watch a sexual act Loitering or soliciting for purposes of prostitutio n Assault by penertration Kerb-crawling Persistent soliciting Causing or inciting prostitution for gain

List of Offences that will Never be Filtered

Controlling prostitution for gain Keeping a brothel used for prostitution Paying for sexual services of a prostitute subjected to force etc Administering a substance with intent Committing an offence with intent to commit a sexual offence Trespass with intent to commit a sexual offence Sex with an adult relative: penetration Sex with an adult relative: consenting to penetration Sexual assault Exposure Voyerism Intercourse with an animalN.I. Sexual penetration of a corpseN.I. Offences outisde the United Kingdom Causing a person to engage in sexual activity without consent Procuring others to commit homosexual acts Living on earnings of male prostitution Procuring Permitting girl to use premises for intercourse Causing on encouraging seduction, prostitution, etc, of girl under 16 Persons trading in prostitution Brothel keeping Allowing child to be in brothel Procuring by threats, etc Incest Intercourse with step-child Intercourse of person in position of trust with child under 16 Intercourse with girl under 13 Intercourse with girl between 13 and 16 Indecent behaviour towards girl between 12 and 16 Gross indecency between males, where the person with whom the offence was committed was under the age of 16 or did not consent to the act

Sexual Offences (Northern Ireland) Order 2008, Art 63 Sexual Offences (Northern Ireland) Order 2008, Art 64 Sexual Offences (Northern Ireland) Order 2008, Art 64A Sexual Offences (Northern Ireland) Order 2008, Art 65 Sexual Offences (Northern Ireland) Order 2008, Art 66 Sexual Offences (Northern Ireland) Order 2008, Art 67 Sexual Offences (Northern Ireland) Order 2008, Art 68 Sexual Offences (Northern Ireland) Order 2008, Art 69 Sexual Offences (Northern Ireland) Order 2008, Art 7 Sexual Offences (Northern Ireland) Order 2008, Art 70 Sexual Offences (Northern Ireland) Order 2008, Art 71 Sexual Offences (Northern Ireland) Order 2008, Art 73 Sexual Offences (Northern Ireland) Order 2008, Art 74 Sexual Offences (Northern Ireland) Order 2008, Art 76 Sexual Offences (Northern Ireland) Order 2008, Art 8 Sexual Offences (Scotland) Act 1967, s4 Sexual Offences (Scotland) Act 1967, s5 Sexual Offences (Scotland) Act 1976, s1 Sexual Offences (Scotland) Act 1976, s10 Sexual Offences (Scotland) Act 1976, s11 Sexual Offences (Scotland) Act 1976, s12 Sexual Offences (Scotland) Act 1976, s13 Sexual Offences (Scotland) Act 1976, s14 Sexual Offences (Scotland) Act 1976, s2 Sexual Offences (Scotland) Act 1976, s2A Sexual Offences (Scotland) Act 1976, s2B Sexual Offences (Scotland) Act 1976, s2C Sexual Offences (Scotland) Act 1976, s3 Sexual Offences (Scotland) Act 1976, s4 Sexual Offences (Scotland) Act 1976, s5

Sexual Offences (Scotland) Act 1976, s7

List of Offences that will Never be Filtered

355

Sexual Offences (Scotland) Act 1976, s8 Sexual Offences (Scotland) Act 1976, s9 Sexual Offences (Scotland) Act 2009, s1 Sexual Offences (Scotland) Act 2009, s2 Sexual Offences (Scotland) Act 2009, s3 Sexual Offences (Scotland) Act 2009, s4 Sexual Offences (Scotland) Act 2009, s11 Sexual Offences (Scotland) Act 2009, s18 Sexual Offences (Scotland) Act 2009, s19 Sexual Offences (Scotland) Act 2009, s20 Sexual Offences (Scotland) Act 2009, s21 Sexual Offences (Scotland) Act 2009, s22 Sexual Offences (Scotland) Act 2009, s23 Sexual Offences (Scotland) Act 2009, s24 Sexual Offences (Scotland) Act 2009, s25 Sexual Offences (Scotland) Act 2009, s26 Sexual Offences (Scotland) Act 2009, s28 Sexual Offences (Scotland) Act 2009, s29 Sexual Offences (Scotland) Act 2009, s30 Sexual Offences (Scotland) Act 2009, s31 Sexual Offences (Scotland) Act 2009, s32 Sexual Offences (Scotland) Act 2009, s33 Sexual Offences (Scotland) Act 2009, s34 Sexual Offences (Scotland) Act 2009, s35 Sexual Offences (Scotland) Act 2009, s36 Sexual Offences (Scotland) Act 2009, s37 Sexual Offences (Scotland) Act 2009, s42 Sexual Offences (Scotland) Act 2009, s46 Sexual Offences (Scotland) Act 2009, s5 Sexual Offences (Scotland) Act 2009, s6 Sexual Offences (Scotland) Act 2009, s7 Sexual Offences (Scotland) Act 2009, s8

Abduction of girl under 18 with intent to have sexual intercourse Unlawful detention with intent to have sexual intercourse Rape Sexual assault by penetration Sexual assault Sexual coercion Administering a substance for sexual purposes Rape of a young child Sexual assault on a young child by penetration Sexual assault on a young child Causing a young child to participate in a sexual activity Causing a young child to be present during a sexual activity Causing a young child to look at a sexual image Communicating indecently with a young child etc Sexual exposure to a young child Voyeurism towards a young child Having intercourse with an older child Engaging in penetrative sexual activity with or towards an older child Engaging in sexual activity with or towards an older child Causing an older child to participate in a sexual activity Causing an older child to be present during a sexual activity Causing an older child to look at a sexual image Communicating indecently with an older child etc Sexual exposure to an older child Voyeurism towards an older child Older children engaging in sexual conduct with each other Sexual abuse of trust Sexual abuse of trust of a mentally disordered person Coercing a person into being present during a sexual activity Coercing a person into looking at a sexual image Communicating indecently etc Sexual exposure

List of Offences that will Never be Filtered

356

357

Sexual Offences Act 1956, s28 Sexual Offences Act 1956, s29 Sexual Offences Act 1956, s3 Sexual Offences Act 1956, s30 Sexual Offences Act 1956, s31 Sexual Offences Act 1956, s32 Sexual Offences Act 1956, s33 Sexual Offences Act 1956, s4 Sexual Offences Act 1956, s5 Sexual Offences Act 1956, s6

Sexual Offences Act 1956, s13 Sexual Offences Act 1956, s14 Sexual Offences Act 1956, s15 Sexual Offences Act 1956, s16 Sexual Offences Act 1956, s17 Sexual Offences Act 1956, s19 Sexual Offences Act 1956, s2 Sexual Offences Act 1956, s20 Sexual Offences Act 1956, s21 Sexual Offences Act 1956, s22 Sexual Offences Act 1956, s23 Sexual Offences Act 1956, s24 Sexual Offences Act 1956, s25 Sexual Offences Act 1956, s26 Sexual Offences Act 1956, s27

Sexual Offences Act 1956, s12

Sexual Offences (Scotland) Act 2009, s9 Sexual Offences Act 1956, s1 Sexual Offences Act 1956, s10 Sexual Offences Act 1956, s11

Indecency between men, where the person with whom the offence was committed was under the age of 16 or did not consent to the act Indecent assault on a woman Indecent assault on a man Assault with intent to commit buggery Abduction of woman by force or for the sake of her property Abduction of unmarried girl under 18 from parent or guardian Procurement of woman by threats Abduction of unmarried girl under 16 from parent or guardian Abduction of defective from parent or guardian Causing prostitution of women Procuration of girl under 21 Detention of woman in brothel or other premises Permitting girl under 13 to use premises for intercourse Permitting girl between 13 and 16 to use premises for intercourse Permitting defective to use premises for intercourse Causing or encouraging prostitution of, intercourse with or indecent assault on, girl under 16 Causing or encouraging prostitution of defective Procurement of woman by false pretences Man living on earnings of prostitution Woman exercising control over prostitute Soliciting by men Keeping a brothel Administering drugs to to obtain or facilitate intercourse Intercourse with girl under 13 Intercourse with girl between 13 and 16

Voyerism Rape Incest by a man Incest by a woman Buggery, where the person with whom the offence was committed was under the age of 16 or did not consent to the act

List of Offences that will Never be Filtered

Sexual Offences Act 1956, s7 Sexual Offences Act 1956, s9 Sexual Offences Act 1967, s4 Sexual Offences Act 1967, s5 Sexual Offences Act 1992 (Isle of Man), s1 Sexual Offences Act 1992 (Isle of Man), s11 Sexual Offences Act 1992 (Isle of Man), s12 Sexual Offences Act 1992 (Isle of Man), s13 Sexual Offences Act 1992 (Isle of Man), s14 Sexual Offences Act 1992 (Isle of Man), s15 Sexual Offences Act 1992 (Isle of Man), s16 Sexual Offences Act 1992 (Isle of Man), s17 Sexual Offences Act 1992 (Isle of Man), s18 Sexual Offences Act 1992 (Isle of Man), s19 Sexual Offences Act 1992 (Isle of Man), s2 Sexual Offences Act 1992 (Isle of Man), s20 Sexual Offences Act 1992 (Isle of Man), s21 Sexual Offences Act 1992 (Isle of Man), s22 Sexual Offences Act 1992 (Isle of Man), s23 Sexual Offences Act 1992 (Isle of Man), s24 Sexual Offences Act 1992 (Isle of Man), s25 Sexual Offences Act 1992 (Isle of Man), s26 Sexual Offences Act 1992 (Isle of Man), s27 Sexual Offences Act 1992 (Isle of Man), s28 Sexual Offences Act 1992 (Isle of Man), s29 Sexual Offences Act 1992 (Isle of Man), s3 Sexual Offences Act 1992 (Isle of Man), s30 Sexual Offences Act 1992 (Isle of Man), s31 Sexual Offences Act 1992 (Isle of Man), s4 Sexual Offences Act 1992 (Isle of Man), s5 Sexual Offences Act 1992 (Isle of Man), s6 Sexual Offences Act 1992 (Isle of Man), s7

Intercourse with defective Procurement of defective Procuring others to commit homosexual acts Living on earnings of male prostitution Rape Assault with intent to commit buggery Bestiality Indecent assault Gross indecency with person under 16 Abduction by force Abducting woman defective Causing prostitution Procurement of person under 18 Procuring woman defective Procurement by threats or lies Detention in brothel Permitting person under 16 to use premises for sex Permitting defective to use premises for intercourse Causing or encouraging prostitution of person under 16 Causing defective to become prostitute Living on immoral earnings or exercising control over prostitute Soliciting Loitering for purposes of prostitution Brothel keeping Letting premises for use as brothel Administering drugs for sexual purposes Cause girl under 16 to becoem prostitute, permit premises to be used as brothel Permit premises to be used for prostitution Unlawful sexual intercourse Sexual act with subnormal person Sexual offences against mental patient by hospital staff or guardian Incest ( including attempted)

List of Offences that will Never be Filtered

358

359

Sexual Offences Act 2003, s36

Sexual Offences Act 2003, s35

Sexual Offences Act 2003, s34

Sexual Offences Act 2003, s32 Sexual Offences Act 2003, s33

Sexual Offences Act 2003, s31

Sexual Offences Act 1992 (Isle of Man), s9 Sexual Offences Act 1997, s29 Sexual Offences Act 1997, s30 Sexual Offences Act 2003, s113(1) Sexual Offences Act 2003, s1 Sexual Offences Act 2003, s10 Sexual Offences Act 2003, s11 Sexual Offences Act 2003, s12 Sexual Offences Act 2003, s13 Sexual Offences Act 2003, s14 Sexual Offences Act 2003, s15 Sexual Offences Act 2003, s16 Sexual Offences Act 2003, s17 Sexual Offences Act 2003, s18 Sexual Offences Act 2003, s19 Sexual Offences Act 2003, s2 Sexual Offences Act 2003, s20 Sexual Offences Act 2003, s25 Sexual Offences Act 2003, s26 Sexual Offences Act 2003, s3 Sexual Offences Act 2003, s30

Sexual Offences Act 1992 (Isle of Man), s8 Buggery, gross indecency and procuring man, where the person with whom the offence was committed was under the age of 16 or did not consent to the act Brothel keeping Permit premises to be used as a brothel Engaging in conduct prohibited by a sexual offences prevention order Rape Causing or inciting a child to engage in sexual activity Engaging in sexual activity in the presence of a child Causing a child to watch a sexual act Child sex offences committed by children or young persons Arranging or facilitating commission of a child sex offence Meeting a child following sexual grooming Abuse of position of trust sexual activity with a child Abuse of position of trust causing or inciting a child to engage in sexual activity Abuse of position of trust sexual acitivity in the presence of a child Abuse of position of trust causing a child to watch a sexual act Assault by penetration Abuse of position of trust: acts done in Scotland Sexual activity with a child family member Inciting a child family member to engage in sexual activity Sexual assault Sexual activity with a person with a mental disorder impeding choice causing or inciting a person with a mental disorder impeding choice to engage in sexual activity Engaging in sexual activity in the presence of a person with a mental disorder impeding choice Causing a person with a mental disorder impeding choice to watch a sexual act Inducement threat or deception to procure sexual activity with a person with a mental disorder Causing person with a mental disorder to enagge in or agree to engage in sexual activity by inducement threat or deception Engaging in sexual activity in the presence, procured by inducement threat or deception of a person with a mental disorder

Inciting girl under 16 to commit incest

List of Offences that will Never be Filtered

Sexual Offences Act 2003, s37 Sexual Offences Act 2003, s38 Sexual Offences Act 2003, s39 Sexual Offences Act 2003, s4 Sexual Offences Act 2003, s40 Sexual Offences Act 2003, s41 Sexual Offences Act 2003, s47 Sexual Offences Act 2003, s48 Sexual Offences Act 2003, s49 Sexual Offences Act 2003, s5 Sexual Offences Act 2003, s50 Sexual Offences Act 2003, s52 Sexual Offences Act 2003, s53 Sexual Offences Act 2003, s57 Sexual Offences Act 2003, s58 Sexual Offences Act 2003, s59 Sexual Offences Act 2003, s59A Sexual Offences Act 2003, s6 Sexual Offences Act 2003, s61 Sexual Offences Act 2003, s62 Sexual Offences Act 2003, s63 Sexual Offences Act 2003, s64 Sexual Offences Act 2003, s65 Sexual Offences Act 2003, s66 Sexual Offences Act 2003, s67 Sexual Offences Act 2003, s69 Sexual Offences Act 2003, s7 Sexual Offences Act 2003, s70 Sexual Offences Act 2003, s72 Sexual Offences Act 2003, s8 Sexual Offences Act 2003, s9 Sexual Offenders Act 1997, s7

Causing a person with a mental disorder to watch a sexual act by inducement threat or deception Care workers sexual activity with a person with a mental disorder Care workers causing or inciting sexual activity Causing a person to engage in sexual activity without consent Care workers sexual activity in the presence of a person with a mental disorder Care workers causing a person with a mental disorder to watch a sexual act Paying for sexual services of a child Causing or inciting child prostitution or pornography Controlling a child prostitute or a child involved in pornography Rape of a child under 13 Arranging or facilitating child prostitution or pornography Causing or inciting prostitution for gain Controlling prostitution for gain Trafficking into the UK for sexual exploitation Trafficking within the UK for sexual expoloitation Trafficking out of the UK for sexual exploitation Trafficking for sexual exploitation Assault of a child under 13 by penetration Administering a substance with intent Committing an offence w/I to commit a sexual offence Trespass w/I to commit a sexual offence Sex with an adult relative - penetration Sex with an adult relative consenting to penetration Exposure Voyeurism Intercourse with an animal Sexual assault on a child under 13 Sexual penetration of a corpse Offences outside the United Kingdom causing or inciting a child under 13 to engage in sexual activity Sexual activity with a child Extension of jurisdiction: England and Wales and Northern Ireland

List of Offences that will Never be Filtered

360

361

of Guernsey) Law 2002, s55 of Guernsey) Law 2002, s57 of Guernsey) Law 2002, s58 of Guernsey) Law 2002, s60

Terrorism and Crime (Bailiwick of Guernsey) Law 2002, s61

Terrorism Act 2006, s17 Terrorism and Crime (Bailiwick Terrorism and Crime (Bailiwick Terrorism and Crime (Bailiwick Terrorism and Crime (Bailiwick

Terrorism Act 2000, s62 Terrorism Act 2000, s63 Terrorism Act 2006, s10 Terrorism Act 2006, s11 Terrorism Act 2006, s5 Terrorism Act 2006, s6 Terrorism Act 2006, s9

Terrorism Act 2000, s58A Terrorism Act 2000, s59 Terrorism Act 2000, s60 Terrorism Act 2000, s61

Social Work (Scotland) Act 1968, s17(8) Social Work (Scotland) Act 1968, s22 Social Work (Scotland) Act 1968, s32 Social Work (Scotland) Act 1968, s60(3) Social Work (Scotland) Act 1968, s61(3) Social Work (Scotland) Act 1968, s62(6) Social Work (Scotland) Act 1968, s71 Summary Jurisdiction (Northern Ireland) Act 1851, s13 Taking of Hostages Act 1982, s1 Terrorism Act 2000, s54 Terrorism Act 2000, s56 Terrorism Act 2000, s57

Committing terrorist bombings outside the United Kingdom, where the underlying offence is section 2 or section 3 of the Explosive Substances Act 1883 Commit an act of terrorism Use of radioactive device or material for terrorist purposes Terrorist threats relating to radioactive devices Preparation of terrorist acts Training for terrorism Making or possesion of radioactive device or material Commission of offences abroad, where the underlying offence is specified in this list Weapons training Directing terrorist organisation Possession of article for terrorist purposes Inciting terrorism overseas Terrorist bombings overseas, where the underlying offence is section 3 of the Explosive Substances Act 1883

Harbouring Lack of parental care Lack of parental care Control of residential and other establishments Restriction on carrying on of establishments Offences relating to the registration of residential and other establishments Harbouring Furious driving Hostage taking Weapons training Directing terrorist organisation Possession of article for terrorist purposes Eliciting, publishing or communicating information to assist commission or preparation of terrorism Inciting terrorism overseas Inciting an act of terrorism outside the United Kingdom Incite another person to commit an act of terrorism

List of Offences that will Never be Filtered

Use etc of nuclear weapons Assisting or inducing certain weapons related acts overseas Use of noxious substances to cause harm or intimidate Aggravated burglary Robbery Robbery Burglary with intent to steal (victim under 16), commit rape or grievous bodily harm, or do unlawful damage to a building or anything in it Burglary inflicting or attempting to inflict grievous bodily harm Burglary (victim under 16) Aggravated burglary Robbery Robbery Aggravated burglary Aggravated vehicle taking involving an accident causing death Robbery or assault w/I to rob Burglary with intent to steal (victim under 16), commit rape or grievous bodily harm, or do unlawful damage to a building or anything in it Burglary inflicting or attempting to inflict grievous bodily harm Aggravated burglary Robbery Burglary with intent to steal (victim under 16), commit rape or grievous bodily harm, or do unlawful damage to a building or anything in it Burglary inflicting or attempting to inflict grievous bodily harm Indecent exposure or loitering for the purposes of prostitution Indecent exposure Exercising control over prostitutes Living on the earnings of prostitution, or persistently soliciting or importuning Causing death by dangerous or reckless driving Causing death by dangerous or reckless driving Sending misleading message likely to endanger person, vessel or aircraft

Terrorism and Crime (Bailiwick of Guernsey) Law 2002, s63 Terrorism and Crime (Bailiwick of Guernsey) Law 2002, s66 Terrorism and Crime (Bailiwick of Guernsey) Law 2002, s71 Theft (Bailiwick of Guernsey) Law 1983, s10 Theft (Bailiwick of Guernsey) Law 1983, s8 Theft (Bailiwick of Guernsey) Law 1983, s14

Theft (Bailiwick of Guernsey) Law 1983, s9(1)(a) Theft (Bailiwick of Guernsey) Law 1983, s9(1)(b) Theft Act (Northern Ireland) 1969, s9 Theft Act (Northern Ireland) 1969, s10 Theft Act (Northern Ireland) 1969, s14 Theft Act (Northern Ireland) 1969, s8 Theft Act 1968, s10 Theft Act 1968, s12A Theft Act 1968, s8

Theft Act 1968, s9(1)(a) Theft Act 1968, s9(1)(b) Theft Act 1981, s10 Theft Act 1981, s8

Theft Act 1981, s9(1)(a) Theft Act 1981, s9(1)(b) Town Police Clauses Act 1847, s28 Vagrancy Act 1824, s4 Vagrancy Act 1893, s1 Vagrancy Act 1898, s1

Vehicular Traffic (Causing Death by Driving) (Alderney) Law 1972, s1 Vehicular Traffic (Causing Death by Driving) Law) 1957, s1 Wireless Telegraphy Act 1949, s5(a)

List of Offences that will Never be Filtered

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Wreck and Salvage (Vessels and Aircraft) (Bailiwick of Guernsey) Law 1986, s18A(5)(c) Assaulting authorised person preserving wreck Any offence of attempting or conspiring to commit any offence specified above Any offence of inciting, or aiding, abetting, counselling or procuring the comm ission of any offence specified above Any offence under the law of Scotland or Northern Ireland or any territory outside the United Kingdom which corresponds to an offence under the law of England and Wales specified above

List of Offences that will Never be Filtered

363

Appendix H Statutory Disclosure Guidance

365

Statutory Disclosure Guidance

Statutory Disclosure Guidance Second edition August 2015

366

Statutory Disclosure Guidance

Statutory guidance to chief officers of police on providing information for inclusion in enhanced criminal record certificates PURPOSE OF THIS GUIDANCE 1.

The review of the criminal records regime conducted by Mrs Sunita Mason, the Government’s Independent Advisor for Criminality Information Management, called for more consistency in disclosing police information within the criminal records process. She recommended a statutory code of practice for police to use when deciding what information to disclose. The Government accepted this recommendation and included in the Protection of Freedoms Act 2012 a reference to guidance published by the Secretary of State.

2.

This guidance is issued under section 113B(4A) of the Police Act 1997 (“the Act”), which came into force on 10 September 2012, in order to assist chief officers of police in making appropriate, proportionate and consistent decisions in providing information from local police records for inclusion in enhanced criminal record certificates (ECRCs).

3.

Section 113B(4) of the Act, as amended, states that: “Before issuing an enhanced criminal record certificate the Secretary of State must request any relevant chief officer to provide any information which – (a) the chief officer reasonably believes to be relevant for the purpose described in the statement under subsection (2), and (b) in the chief officer’s opinion, ought to be included in the certificate.”

4.

Section 119(2) of the Act says that the chief officer shall comply as soon as practicable with a request under section 113B.

STATUS OF THIS GUIDANCE 5.

This guidance is issued under section 113B(4A) of the Act, which states that: “In exercising functions under subsection (4) a relevant chief officer must have regard to any guidance for the time being published by the Secretary of State.”

6.

Having regard to this guidance does not mean fettering chief officers’ discretion to make whatever decisions they consider appropriate, within the constraints of the law. It does mean being able to show due regard to the principles set out in this guidance and being able to justify any departure from the principles on a case by case basis.

7.

This guidance sits alongside the Quality Assurance Framework (QAF) which is a set of processes and more detailed guidance covering the disclosure of local police information under the Act, drawn up by the police service and the Disclosure and Barring Service (DBS). Chief officers should also have regard to the QAF in carrying out functions under section 113B(4) of the Act. The QAF is available from the DBS.

8.

This guidance applies to any relevant chief officer exercising functions under section 113B(4) of the Act, regardless of the geographical location of the body for which they are responsible. This includes those treated as chief officers under section 113B(10) and (11) of the Act.

9.

Further to section 117A of the Act, both chief officers and the independent monitor must have

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regard to this guidance in carrying out functions arising from disputes about the inclusion of information in certificates provided in accordance with section 113B(4) of the Act. PRINCIPLES TO BE APPLIED 10. In deciding what, if any, information should be provided for inclusion in an ECRC, and in providing that information, chief officers should apply the following principles: Principle 1 - There should be no presumption either in favour of or against providing a specific item or category of information 11. Every piece of information should be assessed on its own individual merits. Information should not be included (or excluded) simply because it is of a certain type. Principle 2 - Information must only be provided if the chief officer reasonably believes it to be relevant for the prescribed purpose 12. The prescribed purposes are set out in regulation 5A of the Police Act 1997 (Criminal Records) Regulations 2002 as amended. 13. The word “relevant” should be given its natural meaning, expressed as pertinent to, connected with or bearing upon the subject in question. Information must only be provided if the chief officer reasonably believes it to be relevant. It should not be disclosed on the basis that, although there is no apparent reason to believe that it is relevant, it could conceivably turn out to be. Forming a reasonable belief that information is relevant is a higher hurdle than merely considering that it might be or could possibly be relevant. The most important factors which should be taken into account in considering relevancy are as follows. However, this is not an exhaustive list and other factors may come into play in individual cases. Information should be reasonably believed to be relevant for the prescribed purpose for which the certificate is being sought 14. Chief officers should address the purpose in considering issues of relevancy. What may be relevant to an application connected with caring for children or vulnerable adults may not be relevant where the applicant is, say, seeking a licence under gaming legislation, and vice versa. Linked to this test, chief officers should consider the extent to which information from local records is relevant in the sense that it provides background and context in relation to a conviction or other disposal retained in central records which will automatically be included on the ECRC. In some circumstances information relating to a third party may also be considered relevant to the prescribed purpose. Information should be viewed as sufficiently serious 15. There are no hard or fast rules to apply in this area, but chief officers should consider whether a specific piece of information is of sufficient gravity to justify its inclusion. It will be disproportionate to disclose information if it is trivial, or simply demonstrates poor behaviour, or relates merely to an individual’s lifestyle. 16. There is some relationship here to the purpose for which the certificate is being sought. A relatively minor piece of intelligence with a clear relationship to that purpose might reasonably be viewed as relevant, while something more serious with no such relationship might not. In some cases it might be reasonable to view information linked to an isolated incident or allegation less seriously than information linked to a sequence. For example, a single allegation of violent behaviour might be less relevant than a whole series of allegations. Clearly there will be occasions where the nature of a single incident or allegation is such as to require disclosure. 2

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Information should be sufficiently current 17. The age of the information, coupled with the age of the applicant at the time and their conduct in the intervening period, are factors which should be taken into account. The older the information the more difficult it will be to form a reasonable belief that it is relevant. However, there are other factors, especially seriousness, which may mean that even very old information may reasonably be believed to be relevant. The currency of information should be considered together with the applicant’s specific circumstances. Information should be sufficiently credible 18. This will always be a matter of judgement, but the starting point will be to consider whether the information is from a credible source. Chief officers should consider whether there are any specific circumstances that lead them to consider that information is unlikely to be true or whether the information is so without substance that it is unlikely to be true. In particular, allegations should not be included without taking reasonable steps to ascertain whether they are more likely than not to be true. Principle 3 - Information should only be provided if, in the chief officer’s opinion, it ought to be included in the certificate 19. Having formed what they regard as a reasonable belief that the information is relevant, the chief officer must then consider whether it ought to be included in the certificate. There are two key areas to be considered under this heading, as set out below. The impact of disclosure on the private life of the applicant or a third party 20. The words “ought to be included” should be read and given effect in a way which is compatible with the applicant’s right to respect for their private and family life under Article 8 of the European Convention on Human Rights. Disclosure of information on ECRCs as a result of decisions made by chief officers will fall within the scope of Article 8. That being the case, they will, in virtually every case, involve an interference with the applicant’s private life; this may include the impact on the applicant in terms of their prospects of being selected for the role in question. Therefore chief officers must ensure that the disclosure of such information is justified in every case. 21. Firstly this requires establishing whether there is a legitimate aim pursued by the disclosure; this might be the legitimate aim of crime prevention and/or the protection of the rights and freedoms of others and/or ensuring public safety. Every case should be evaluated on its own facts. 22. If there is a legitimate aim pursued, the next step is to consider whether the disclosure of the information is necessary to pursue that aim including consideration of whether there are any other realistic and practical options to pursue that aim. If disclosure is considered necessary to pursue that aim then the question becomes one of proportionality. In practice this will involve weighing factors underpinning relevancy, such as seriousness, currency and credibility against any potential interference with privacy. All decisions must be proportionate. This means that the decision is no more than necessary to achieve the legitimate aim and that it strikes a fair balance between the rights of the applicant and the rights of those the disclosure is intended to protect. It is therefore essential that the reasoning in reaching a decision is fully and accurately recorded in each case. Adverse impact of disclosure on the prevention or detection of crime 23. There will be exceptional cases in which the specific circumstances will require the chief

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officer to consider whether the value of disclosing information in terms of public protection might be outweighed or undermined by an adverse impact on the prevention or detection of crime. 24. For example, the applicant might be the subject of an ongoing police investigation and disclosing certain information might compromise that by alerting them to the police interest. 25. In the exceptional cases where the chief officer concludes that information should not be disclosed to the applicant for such reasons, they should consider alternative ways of dealing with the public protection issues that would otherwise be addressed via disclosure on an ECRC. This may, for example, involve providing information to an employer or potential employer in confidence, using the police’s common law powers to act to protect the public. Alternatively, the police may decide to increase monitoring and observation of the applicant’s activities to reduce risks to vulnerable groups or individuals. Principle 4 - The chief officer should consider whether the applicant should be afforded the opportunity to make representations 26. In any case where a chief officer is minded to provide information for inclusion in a certificate or is uncertain whether to do so, they should consider whether the applicant should be offered the opportunity to make representations before the information is submitted. Some of the factors relevant to this consideration are: * is there doubt as to whether the purpose for which the certificate is being requested, while eligible for an ECRC, actually requires the disclosure of this specific information? * has the applicant ever had a fair opportunity to answer an allegation? * is there doubt that an allegation could be substantiated? * is there any doubt as to whether factual information is correct or remains valid? * is it questionable whether disclosure of this information would represent a disproportionate interference with the applicant’s private life? 27. The chief officer should ask themselves whether it is obvious that nothing the applicant might say by way of representations could rationally or sensibly influence their decision. Only in cases where there is no room for doubt that the information should be disclosed should a decision to disclose be taken without first giving the applicant an opportunity to make representations. Principle 5 - There should be a sufficient and clear audit trail to record the decision making process and support quality control 28. There should be a clear audit trail running through the decision making process. The reasons for key decisions within that process should be adequately documented, together with the identity of those responsible for them. This will underpin quality control processes which chief officers should ensure are applied on a regular and systematic basis. 29. It will also be critical to enabling effective review processes where specific decisions are challenged. Principle 6 - Decisions should be made in a timely manner 30. Decisions about whether to provide information for inclusion in a certificate should be made as quickly as is reasonably possible and it is the chief officer’s responsibility to ensure that there are no unnecessary delays. Chief officers should be aware that delays feed through into important decisions affecting both the applicant and, potentially, the protection of the public. 4

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Principle 7 - Information for inclusion should be provided in a meaningful and consistent manner, with the reasons for disclosure clearly set out 31. Neither the applicant nor the employer or other body to whom they may wish to show the certificate should be left to speculate as to the reasons why information has been included. Both these reasons and the information itself should be set out in a clear and meaningful way and in a consistent format. A recommended template is included in the QAF. 32. The wording should be clear, concise and unambiguous. It should be written in plain English and easy to read and understand. Police jargon should be avoided and the text should stick to the facts, offering no opinion, assumption or supposition. Personal opinions as to an applicant’s suitability for a prescribed purpose should not be included. 33. The information should be self-contained and stand on its own merits. It should not, for example, cross-reference to other material not available as part of the disclosure or to information contained in a previous disclosure. Principle 8 - Any delegation of the chief officer’s responsibilities should be appropriate and fully documented 34. The chief officer should consider whether any aspects of the decision making process are to be delegated. Any delegation should recognise the importance and complexity of the process and the chief officer should be satisfied that the officer to whom the delegation is made is entirely suitable for the task in terms of skills, training and experience. Where delegation occurs, the chief officer should ensure that the delegate has regard to this statutory guidance. Any decision to delegate should be documented and signed off by the chief officer. HEALTH INFORMATION 35. On its own, information relating to physical health is unlikely to be appropriate for disclosure. Mental health 36. A joint Home Office/Department of Health review of the operation of sections 135 and 136 of the Mental Health Act 1983, published in 2014, raised concerns that chief officers are sometimes disclosing information relating to mental health when it is not relevant or proportionate. Disclosure of information relating to mental health is a sensitive issue for people who have encountered the police and requires careful consideration. The longterm effects of disclosure of experiences of mental health problems can be very damaging to the individuals concerned, impacting on their private lives and employment prospects. Additionally, it can be very difficult to judge whether an episode of mental ill health in itself is relevant to an application for a job or voluntary activity. 37. Only other additional factors can make a mental illness relevant for disclosure. A person with mental ill health may experience a specific episode that brings them into contact with the police. Such an episode may lead to detention. The fact of detention under sections 135(1) or 136 of the Mental Health Act 1983 is unlikely, in itself, to be sufficient to justify disclosure. Sections 135(1) and 136 provide the police with powers to remove a person to a place of safety when the person is believed to be suffering from a mental disorder and is in need of care or control. Such a detention under the Mental Health Act does not constitute a criminal investigation and should therefore be treated with great caution when considering relevance for disclosure. 38. A key consideration for the chief officer is the person’s behaviour during the course of the incident. For example, if police records show that the person’s behaviour presented 5

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a particular risk of harm to others (which may include threats or physical violence), and the chief officer believes that the users of the certificate should be aware of that risk (for example, a risk to children or vulnerable people), then the chief officer might consider the information to be relevant to the purposes of the application and that it ought to be disclosed. Repeat incidents of such behaviour may also be a factor. 39. As stated at paragraph 17 of this guidance, the age of the information – i.e. how long ago the incident took place – is another important factor when considering how relevant the information is to the application. If the chief officer reasonably believes the information is relevant to the application, they should consider giving the applicant the opportunity to make representations about their current state of health before making a final decision on disclosure. 40. If the chief officer decides to disclose information relating to an episode of mental ill health, the certificate should provide sufficient explanation to ensure the prospective employer or voluntary organisation will clearly understand the relevance of the information to the application. Please see paragraphs 31 to 33 for further guidance on completing the certificate. 41. More detailed guidance on information relating to mental health is provided in the QAF. INFORMATION PROVIDED BY THE DBS 42. The DBS has the power to tell the police about information which has informed consideration of barring from work with vulnerable groups under the provisions of the Safeguarding Vulnerable Groups Act 2006. Any such information received by the police should be considered for recording as local police information and, where an application for an ECRC is made, for disclosure in line with this guidance. The fact that an applicant is, or has been, barred should not be considered for disclosure as local police information as this would fall outside the statutory provisions governing the provision of barring information on ECRCs. DISREGARDING CERTAIN CONVICTIONS UNDER THE PROTECTION OF FREEDOMS ACT 2012 43. Chapter 4 of Part 5 of the Protection of Freedoms Act 2012 (Ch4 POFA) provides a system whereby applicants may apply for some convictions and cautions under section 12 of the Sexual Offences Act 1956 and section 4 of the Vagrancy Act 1824, and all convictions and cautions under section 13 of the Sexual Offences Act 1956, as well as some other offences as set out in Ch4 POFA to be disregarded by the Secretary of State. If a conviction or caution has been disregarded by the Secretary of State in accordance with these provisions, no information suggesting that the person has committed the offence, was charged with or prosecuted for the offence, was convicted or cautioned for the offence or was sentenced for the offence can be disclosed (section 96 of the Protection of Freedoms Act 2012). Where material that may have been disregarded is identified, enquiries should be made with the Home Office to determine whether a successful application has been made in relation to a specific offence. Home Office August 2015

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Appendix I National Retention Assessment Criteria Template

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National Retention Assessment Criteria Template

National Retention Assessment Criteria Template For advice on completing this form, see APP on information management Record

Date of review

Review type (triggered or scheduled)

If review was triggered explain how/why

Retention criteria Factors – risk or harm

Yes/No

1 Is there evidence of a capacity to inflict serious harm, eg, threats, violence towards partner, hate-based behaviour, predatory behaviour?

Yes

2 Are there any concerns in relation to children or vulnerable adults?

Yes

If ‘Yes’ provide an explanation of how/why

No

No 3 Did the behaviour involve a breach of trust?

Yes No

4 Is there evidence of established links or associations which might increase the risk of harm, eg, gang membership, contact with known paedophiles or other established criminal groups?

Yes

5 Is there evidence of substance misuse?

Yes

No

No 6 Are there concerns about the individual’s mental state, eg, symptoms of mental illness, obsessive or compulsive behaviour, morbid jealousy, paranoia, lack of self-control?

Yes

7 Any other reasons?

Yes

No

No Is the information under review proportionate and still necessary for a policing purpose?

Yes

No

Is the information under review adequate and up to date?

Yes

No

Outcome of review

Completed by

Authorised by

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Appendix J Deletion of Records from National Police Systems Guidance

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Deletion of Records from National Police Systems Guidance

DELETION OF RECORDS FROM NATIONAL POLICE SYSTEMS (PNC/NDNAD/IDENT1) The process covering deletion requests for records held on national police systems in England and Wales. This guidance outlines the national process for record deletion in respect of records held on the PNC, the National DNA Database (NDNAD) and the National Fingerprints Database (IDENT1)

Version 2.0

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Foreword The National Police Chiefs’ Council (NPCC) has agreed to this revised strategy being circulated to, and adopted by, Police Forces in England & Wales. It is NOT PROTECTIVELY MARKED under the Government Security Classifications and any referrals for advice and rationale in relation to Freedom of Information Act disclosure should be made to the National Police Freedom of Information and Data Protection Unit at [email protected] This revised strategy has been approved by the Information Management and Operational Requirements Coordination Committee (IMORCC). Guidelines/Strategy produced by the NPCC should be used by chief officers to shape police responses to ensure that the general public experience consistent levels of service. The operational implementation of all guidance and strategy will require operational choices to be made at local level in order to achieve the appropriate police response and this document should be used in conjunction with Authorised Professional Practice (APP) produced by the College of Policing. It will be updated and re-published as necessary. Any queries relating to this document should be directed to the ACRO Criminal Records Office at [email protected]. 2018

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Disclaimer and Copyright details This document provides information to assist policing in England and Wales. It is not protectively marked under the Government Security Classifications. This document should be read in conjunction with the provisions contained in Chapter 1, Part 1 of the Protection of Freedoms Act 2012. The Police Service and the organisations they work with should not base strategic and operational decisions solely on the basis of the information supplied. © - National Police Chiefs’ Council All rights reserved. No part of this publication may be reproduced, modified, amended, stored in any retrieval system or transmitted, in any form or by any means, without prior written permission of the National Police Chiefs’ Council or its representative. The above restrictions do not apply to police forces or authorities, which are authorised to use this material for official, non-profit-making purposes only.

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Product Control Page Author:

Jess Mullins

Records Management Supervisor

Address:

ACRO Criminal Records Office

 [email protected]

Contributors: Karen Progl (ACRO Criminal Records Office)

Robert Butlin (Home Office)

Stacey Dibbs (Metropolitan Police Service)

Carl Jennings (Home Office)

Various Police Forces Distribution List: All Police Forces (England & Wales)

Home Office (PNC Customer Support)

British Transport Police (BTP)

Home Office (Reconciliations Unit)

Ministry of Defence Police (MDP)

Forensic Information Databases Service

Service Police (Navy, Army & RAF)

Disclosure and Barring Service (DBS)

HM Revenue & Customs (HMRC)

Disclosure Scotland

Home Office (Identity Policy Unit)

Access Northern Ireland

Home Office (Police Live Services)

Information Commissioner’s Office

Issue Control: Version

Date

Details of Changes made to this report

1.0

19th March 2015

Final version agreed.

1.1

19 May 2015

Various changes made to format and content.

1.2

12 May 2016

Various changes made to format and content.

1.3

10th January 2017

Various changes made to format and content.

1.4

27th July 2017

Various changes made to format and content.

1.5

3 November 2017

New template adopted. New Appendix B and Appendix G incorporated. Updated Appeals process added.

th th

rd

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Issue Control: Version

Date

Details of Changes made to this report

1.6

3 January 2018

Various changes made to format and content following feedback from HO colleagues.

1.7

22nd June 2018

Various changes made to content following DPA 2018.

2.0

18th October 2018

Final version agreed.

rd

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INTENTIONALLY BLANK

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Contents 1

INTRODUCTION ........................................................................................................ 1

1.1 1.2 1.3 1.4 1.5

PURPOSE ................................................................................................................................1 STATUS ..................................................................................................................................1 SCOPE ....................................................................................................................................1 RECORD TYPES AND CATEGORIES ............................................................................................2 PRINCIPLES .............................................................................................................................3

2

RECORD DELETION PROCESS .............................................................................. 4

2.1 2.2 2.3 2.4

OVERVIEW ..............................................................................................................................4 DELETION OF BIOMETRIC INFORMATION AND ASSOCIATED PNC RECORD ....................................4 OUT OF COURT DISPOSALS......................................................................................................5 DELETION OF PNC RECORD ONLY ............................................................................................5

3

UNLAWFUL ARREST/SAMPLING OR MISTAKEN IDENTITY ................................ 6

3.1 REQUIREMENT TO DELETE BIOMETRIC INFORMATION .................................................................6 3.2 DESTRUCTION OF SAMPLES......................................................................................................6 3.3 DESTRUCTION OF DNA PROFILES AND FINGERPRINTS ...............................................................6

4

ACRO CRIMINAL RECORDS OFFICE ..................................................................... 7

4.1 THE ROLE OF ACRO ...............................................................................................................7 4.2 THE ACRO INFORMATION MANAGEMENT UNIT ..........................................................................8

5

PROCESS.................................................................................................................. 9

5.1 ELIGIBILITY .............................................................................................................................9 5.2 MAKING AN APPLICATION .......................................................................................................11 5.3 GROUNDS AND SUPPORTING EVIDENCE ..................................................................................13

6

AFFECTING FACTORS........................................................................................... 16

6.1 6.2 6.3 6.4 6.5

NO FURTHER ACTION DISPOSALS ............................................................................................16 NON-CONVICTION OUTCOMES AT COURT .................................................................................17 EVENT HISTORIES AND FURTHER CONNECTED CRIMINALITY ......................................................17 REQUIREMENT FOR POSITIVE EVIDENCE ..................................................................................17 RETENTION OF BIOMETRIC INFORMATION DUE TO PREVIOUS CONVICTION ..................................18

7

ROLE OF THE CONTROLLER................................................................................ 18

7.1 THE CONTROLLER .................................................................................................................18 7.2 FORCE DELETIONS ................................................................................................................20

8

APPEALS................................................................................................................. 21

8.1 OVERVIEW ............................................................................................................................21 8.2 RE-APPLYING FOR RECORD DELETION ....................................................................................22

9

COMPLAINTS PROCEDURE .................................................................................. 22

9.1 9.2 9.3 9.4 9.5

DATA PROTECTION OFFICER (DPO) .......................................................................................22 PROFESSIONAL STANDARDS DEPARTMENT (PSD) ..................................................................22 INFORMATION COMMISSIONER’S OFFICE (ICO) .......................................................................23 JUDICIAL REVIEW ..................................................................................................................23 INDEPENDENT OFFICE FOR POLICE CONDUCT (IOPC) .............................................................23

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9.6 ACRO ..................................................................................................................................23

10 ACCOUNTABILITY.................................................................................................. 23 10.1 PROTECTING PERSONAL INFORMATION ...................................................................................23 10.2 MONITORING .........................................................................................................................24 10.3 AUDIT ...................................................................................................................................24 10.4 ANNUAL REPORT ..................................................................................................................24

11 COMMUNICATIONS................................................................................................ 25 11.1 FORMS AND GUIDANCE ..........................................................................................................25

ANNEX A – DEFINITIONS....................................................................................................... 1 ANNEX B – GROUNDS FOR RECORD DELETION ....................................................................... 1 ANNEX C – RETENTION PERIODS FOR BIOMETRIC INFORMATION (FINGERPRINTS AND DNA).... 1 ANNEX D – TABLE OF CIRCUMSTANCES AND ELIGIBILITY ........................................................ 1 ANNEX E – PROCESS MAP..................................................................................................... 1 ANNEX F – FORCE DECISION TEMPLATE ................................................................................. 1

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1

Introduction

1.1

Purpose

1.1.1

This Guidance replaces both the ‘Exceptional Case Procedure’ as defined in the ‘ACPO Retention Guidelines for Nominal Records on the Police National Computer’ issued in 2006, and the statutory guidance issued by the National DNA Database (NDNAD) Strategy Board on the destruction of DNA samples, DNA profiles and fingerprints issued in 2013.

1.1.2

The purpose of this Guidance is to ensure that a consistent approach is taken by relevant and specified Chief Officers 1 and others in relation to dealing with applications for the deletion of records from these three national police systems: x

Police National Computer (PNC)

x

National DNA Database (NDNAD)

x

National Fingerprint Database (IDENT1)

1.1.3

A full list of definitions in respect of terminology used throughout this Guidance can be found at Annex A.

1.2

Status

1.2.1

This Guidance is issued to Chief Officers in England & Wales by the NDNAD Strategy Board under section 63AB(2) of Police and Criminal Evidence Act 1984 (“PACE”) as amended by the Protection of Freedoms Act 2012 (“PoFA”): (2)

The National DNA Database Strategy Board must issue guidance about the destruction of DNA profiles which are, or may be, retained under this Part of the Act [Part V of the Police and Criminal Evidence Act 1984].

(3)

A Chief Officer of a police force in England and Wales must act in accordance with any guidance under subsection (2).

1.2.2

This Guidance has statutory effect only in relation to the destruction of DNA profiles, but, in the interests of expediency and consistency, this Guidance and the accompanying process applies equally to the deletion of DNA samples, fingerprints and PNC records as well as DNA profiles.

1.3

Scope

1.3.1

This Guidance only extends to records held on PNC, NDNAD and IDENT1. Records held locally by Chief Officers, whether stored on other electronic document management

1

Specified Chief Officers are defined in s.63F s.11(a) Protection of Freedoms Act 2012.

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systems or in manuscript, are managed by Chief Officers in accordance with the Authorised Professional Practice (APP) on Management of Police Information (MoPI)2 published by the College of Policing. 1.3.2

For the avoidance of doubt this Guidance does not extend to the deletion of records held on the Police National Database.

1.3.3

Custody photographs will be considered by forces as part of the process at the same time that an applicant wishes to make an application in respect of records held on the PNC, IDENT1 and NDNAD.

1.3.4

However, applications which are solely in respect of a custody photograph will not be accepted under this process and if an applicant is seeking the removal of this one element, they will need to contact the force directly. The process for deletion of custody photographs is also covered in the Authorised Professional Practice (APP) on Management of Police Information (MoPI), which in turn refers to the Custody Image Review.

1.4

Record types and categories

1.4.1

Fingerprint records are held on IDENT1: DNA profiles on the NDNAD. Associated demographic information, which includes a person’s name, address, descriptive details and relevant operational information, is held on the PNC.

1.4.2

PNC records can be created by any police force operating in any jurisdiction within the United Kingdom (UK) 3or by any recognised Law Enforcement Agency (LEA) or Non-Police Prosecuting Agency (NPPA) with relevant permissions to do so, whether they are exercising their lawful duties within the UK or abroad e.g. the Royal Military Service Police.

1.4.3

Records held on the PNC show whether a person has ever been convicted 4 of a recordable offence or a non-recordable offence associated with a recordable offence.

1.4.4

A PNC record also contains information about non-conviction outcomes including ‘Not Guilty’ adjudications, ‘acquittals’, ‘discontinuances’ and ‘No Further Action’ (NFA) disposals. In this Guidance non-conviction outcomes are referred to as a person’s ‘Event History’.

1.4.5

The Criminal Justice Act 2003 amended PACE and provided the police with the power to take DNA samples and fingerprints without consent, from persons detained at a police station having been arrested for a recordable offence. Where such an arrest results in no

https://www.app.college.police.uk/app-content/information-management/management-of-police-information/ Jersey, Guernsey and the Isle of Man are Crown Dependencies and are not part of the UK but they do create records on the PNC. 4 Under PACE ‘conviction’ includes both court convictions and ‘non-court disposals’ issued by the police, specifically cautions, conditional cautions, reprimands and warnings. 2 3

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further action being taken, the person is referred to as a Criminal Justice arrestee - ‘CJ Arrestee’. 1.5

Principles

1.5.1

The Government wants to protect the civil liberties of innocent citizens, whilst giving police the powers they need to identify suspects and solve crime using DNA and fingerprints (hereafter referred to as biometric information). The Government also recognises that there is a requirement for the police to hold certain information about an individual’s criminal history for their policing purposes5 and to satisfy the requirements of their criminal justice partners e.g. the courts. This information includes convictions, out of court disposals and other ‘Event Histories’.

1.5.2

Police powers to take and retain DNA samples and fingerprints are set out in PACE. Changes to PACE were implemented through provisions contained in PoFA which include the requirement for the biological DNA sample obtained by the police to be immediately destroyed once the DNA profile has been obtained and no later than 6 months after it was taken, except in rare cases where it is needed as evidence for court. The length of time that an individual’s biometric information can be retained depends on their conviction / ‘Event History’.

1.5.3

PACE (as amended) allows the police to indefinitely retain the biometric information of individuals convicted of a recordable offence 6. PACE also provides circumstances in which the police cannot retain the biometric information i.e. in regards to persons who are charged but not convicted of a ‘Minor Offence’ or arrested but not charged with a ‘Qualifying Offence’. In both instances, the legislation requires the biometric information to be immediately deleted unless, in respect of the latter, an application to retain the biometric information is made to the Biometrics Commissioner under section 63G of PACE. However, the ‘Event History’ is retained on the PNC in accordance with the current retention policy outlined at 1.5.5.

1.5.4

Chief Officers are Controllers as defined by the Data Protection Act 2018 (DPA). They have the discretion in law to authorise the early deletion of records relating to legally retained biometric information, which they own on IDENT1 and NDNAD, but only where the grounds for so doing have been examined and agreed.

1.5.5

Under this Guidance, PNC records are required to be retained until a person is deemed to have reached 100 years of age. However, Chief Officers can exercise their discretion, in exceptional circumstances, to delete records for which they are responsible, specifically those relating to non-court disposals e.g. adult simple cautions and conditional cautions as well as any ‘Event History’ owned by them on the PNC but only where the grounds for so doing have been examined and agreed.

5 6

As defined by the Code of Practice for the Management of Police Information (MoPI). An exception is made in respect of persons of less than 18 years subject to certain provisions being met.

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1.5.6

Court convictions are not eligible for record deletion from the PNC under this process.

1.5.7

Where an offence is dealt with by way of a Penalty Notice for Disorder, that event will also be recorded on the PNC and it will form part of a person’s ‘Event History’. A person issued with a PND is not regarded as having a conviction.

1.5.8

A person may have an ‘Event History’ recorded on the PNC even though they have only come to the attention of the police, LEA or NPPA on one occasion and regardless of whether that one occasion resulted in the person being convicted of an offence.

2

Record Deletion Process

2.1

Overview

2.1.1

This Guidance sets out the process for making an application for the deletion of legally retained biometric information in circumstances described at 2.2.1 below, as well as making an application for the deletion of a PNC record or a specific arrest event held on a PNC record when the biometric information has already been deleted through automated processes or never obtained in the first instance and in respect of those instances where records are held due to an out of court disposal. This process is known as the ‘Record Deletion Process’ (hereafter referred to as the RDP).

2.2

Deletion of biometric information and associated PNC record

2.2.1

This Guidance firstly provides that individuals, in certain circumstances, may apply to have their lawfully retained biometric information deleted from national police systems (NDNAD and IDENT1) earlier than the periods specified under PACE (as amended).

2.2.2

These circumstances are as follows:

2.2.3

a.

They have no previous convictions and their biometric information is held as a result of being arrested and charged with a Qualifying Offence but not subsequently convicted, which applies a 3 year biometric retention period under PoFA: or,

b.

They have no previous convictions and their biometric information is held due to a PND, which applies a 2 year biometric retention period under PoFA.

In the above 2 circumstances, an individual can make an application under the RDP in respect of their biometric information and the associated entry held on the PNC. An individual is encouraged to ‘evidence’ their grounds when making an application. Please refer to 5.3 for further information on grounds and supporting evidence.

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2.3

Out of Court Disposals

2.3.1

An individual can also make an application for record deletion in respect of an out of court disposal – caution / warning / reprimand / youth caution / conditional caution / youth conditional caution.

2.3.2

Applications for the deletion of a conditional caution will not be considered if the conditions are still ‘live’.

2.3.3

Under PACE a caution, warning and reprimand is regarded as a conviction and, unless the offence in question is an “excluded offence”, the biometric information taken in respect of such a disposal is retained indefinitely under PoFA.

2.3.4

Therefore, an individual may make an application under the RDP in respect of their records held on PNC, IDENT1 and NDNAD.

2.3.5

However, the individual is encouraged to sufficiently ‘evidence’ the grounds under which they are submitting an application and only if those grounds are examined and accepted by the Chief Officer will the records be deleted. Please refer to 5.3 for further information on grounds and supporting evidence.

2.3.6

Attention is drawn to s.27(4) of PACE in respect of the recording of out of court disposals on the PNC.

2.3.7

http://www.legislation.gov.uk/ukpga/1984/60/section/27

2.4

Deletion of PNC record only

2.4.1

In addition to the circumstances described at paragraphs 2.2. and 2.3 above, applications for record deletion can also be made under the processes described in this Guidance even when the automated processes introduced to manage the PoFA requirements have already caused the deletion of a person’s biometric information i.e. they were arrested and charged with a ‘Minor Offence’ or they were arrested but not charged with a ‘Qualifying Offence’ and no application was made to retain the biometric information.

2.4.2

However, it should not be assumed that just because the biometric information has fallen to deletion via automated processes that the Chief Officer will approve the removal of the PNC record also. The request for deletion presented by the applicant will still need to be examined and agreed.

2.4.3

Please refer to 5.3 for further information on grounds and supporting evidence.

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3

Unlawful Arrest/Sampling or Mistaken Identity

3.1

Requirement to delete biometric information

3.1.1

If it is apparent that biometric information has been taken as a result of an unlawful arrest or an arrest based on mistaken identity or the original sampling was unlawful i.e. the suspect was not formally arrested in the first instance, Chief Officers must, with very limited exceptions, destroy the biometric information, whether the individual makes an application under the RDP or not. This requirement is set out under section 63D of PACE (as amended).

3.1.2

In this context, ‘arrest based on mistaken identity’ refers to circumstances whereby there was an error such as arresting the wrong “John Smith”, notwithstanding that the arrest procedure itself was lawfully carried out.

3.1.3

Situations where the evidence against a suspect is ultimately inconclusive will not be seen as an arrest based on mistaken identity; these cases may instead fit one of the other ‘grounds’ specified at Annex B.

3.1.4

Whilst the requirement under section 63D of PACE does not extend to the PNC record forces should consider whether this is still required for a policing purpose.

3.2

Destruction of samples

3.2.1

The destruction of DNA samples is dealt with under section 63R of PACE (as amended): (2)

Samples to which this section applies must be destroyed if it appears to the responsible chief officer of police that: (a)

the taking of the samples was unlawful, or

(b) the samples were taken from a person in connection with that person's arrest and the arrest was unlawful or based on mistaken identity. 3.3

Destruction of DNA profiles and fingerprints

3.3.1

The destruction of DNA profiles and fingerprints is dealt with under section 63D of PACE (as amended): (2)

Fingerprints and DNA profiles to which this section applies (“section 63D material”) must be destroyed if it appears to the responsible chief officer of police that: (a) the taking of the fingerprint or, in the case of a DNA profile, the taking of the sample from which the DNA profile was derived, was unlawful, or

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(b) the fingerprint was taken, or, in the case of a DNA profile, was derived from a sample taken, from a person in connection with that person’s arrest and the arrest was unlawful or based on mistaken identity. 3.3.2

The deletion must occur as soon as the information comes to the Chief Officers’ attention. An application for record deletion is not necessary in these circumstances.

4

ACRO Criminal Records Office

4.1

The role of ACRO

4.1.1

ACRO Criminal Records Office, operating under the National Police Chiefs’ Council (NPCC), is a national unit that manages criminal record information on behalf of the Police Service.

4.1.2

The ACRO Information Management unit is a unit embedded within ACRO.

4.1.3

The ACRO Information Management unit, acting as Processor, manages record deletion requests as a service to members of the public, and they act as the conduit between applicants and individual police forces.

4.1.4

Whilst the ACRO Information Management unit may advise forces on the process and offer guidance in relation to national policy it is not the role of the ACRO Information Management unit / ACRO to make or challenge decisions made by an individual police force.

4.1.5

The decision on whether to retain or dispose of an offence added to PNC is the responsibility of the Chief Officer of the owning force, in their capacity as Controller.

4.1.6

Applications and enquiries in respect of this process should be directed to the following address; Via email to: [email protected] Via post to: Information Management unit ACRO PO Box 481 Fareham PO14 9FS

4.1.7

Due to the number of enquiries received by the ACRO Information Management unit, they are unable to routinely take direct telephone calls. However, if an applicant wishes to be contacted by telephone they can request this via the ACRO Customer Services Unit and agree a suitable time for a call back. A message will be passed on to the ACRO

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Information Management unit who will contact the applicant and advise them further on how to apply for record deletion. 4.1.8

Please refer to 11.1.4 for further information on this.

4.2

The ACRO Information Management unit

4.2.1

The ACRO Information Management unit will seek to ensure that a consistent approach is applied to the administration of this process across the Police Service and by anyone else using the RDP. In this regard the ACRO Information Management unit will: x

Coordinate and deal centrally with all requests for record deletion made by applicants in respect of records owned by Chief Officers in England & Wales.

x

Redirect applicants to other UK jurisdictions where necessary or appropriate.

x

Contact the applicant where the grounds have not been fully ‘evidenced’ in respect of applications made for record deletion to give the applicant the opportunity to provide additional information to support their request if they so wished.

x

Reject applications made in respect of any court conviction.

x

Reject applications made in respect of a conditional discharge and an absolute discharge.

x

Reject applications where an individual is still subject to ongoing enquiries

x

Reject applications which are regarded as a data dispute.

x

Forward applications to police forces and LEA as appropriate and manage responses.

x

Provide advice to relevant Chief Officers when requested.

x

Manage the deletion of records held on the PNC as directed by Chief Officers.

x

Manage the deletion of biometric information from NDNAD and IDENT1 as directed by Chief Officers.

x

Advise forces once a record deletion is complete and where applicable, request the force to arrange for the deletion of the associated locally held fingerprints for approved applications.

x

Act as an intermediary between the applicant and Chief Officers.

x

Collate information on behalf of the Police Service for statistical purposes.

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x

Report to the Information Management and Operational Requirements Coordination Committee (IMORCC) as directed.

x

Maintain a statistical record of decisions made by Chief Officers.

4.2.2

Although the ACRO Information Management unit may advise Chief Officers, when requested, as to whether a decision is consistent with determinations made in similar cases, the final decision will always rest with the Chief Officer who owns the relevant records. In this regard, it should be clear that the ACRO Information Management unit do not make the decisions on record deletion.

5

Process

5.1

Eligibility

5.1.1

The deletion of court convictions is outside the scope of this guidance. Individuals with a court conviction cannot apply to have their record deleted under the RDP from the Police National Computer.

5.1.2

Individuals must appeal against the conviction to the court if new evidence emerges and have 28 days within which to do so from the date of the court ruling.

5.1.3

Whilst a conditional discharge is not deemed to be a conviction unless the individual breaches the conditional discharge and is then re-sentenced, it is a guilty verdict established in Court and so such disposals will not be considered for deletion under this process. The same applies to an absolute discharge.

5.1.4

Where the investigation into an individual or court proceedings against them are ongoing, an individual cannot apply to have their records deleted because the full circumstances of their case might not be known at the time the application is made.

5.1.5

Where a record is shown on PNC as an impending prosecution this will not be sent to force until six months have elapsed since the date of arrest. This will then ensure that any administrative processes within police forces are complete. Such applications will be returned to the applicant to re-submit at a later date.

5.1.6

If the ACRO Information Management unit come across a record which contains an Impending Prosecution over six months old, the unit will liaise with the owning force to determine whether the case is still ongoing or whether it is just a matter of the record not being updated. If the latter applies, the ACRO Information Management unit will liaise with the relevant force requesting that the record is updated to reflect the outcome of the investigation.

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5.1.7

Where an application is submitted less than six months after the arrest date and the outcome is recorded on PNC there is no reason not to send it to the relevant force if it meets the criteria set out in the guidance.

5.1.8

Individuals who are arrested but not convicted of a ‘Minor Offence’ and those arrested but not charged with a ‘Qualifying Offence’ will have their biometric information automatically deleted (provided certain other criteria are met), so there is no need to apply simply to have the associated biometric information deleted 7. However, said individuals can make an application under the RDP to have the associated PNC entry reviewed under the process.

5.1.9

The term ‘evidence’ in the context of the Guidance simply means that individuals are encouraged to provide reasoning for why they feel their request for record deletion comes under the ground(s) that they have selected on the application form i.e. what happened for the individual to determine that their case falls under their chosen ground(s)?

5.1.10

Similarly, if an individual applies under the ground of Judicial Recommendation then any associated court transcripts should be provided within the application, where possible, to support the request which indicates that the Judge instructed that an individual’s records should be deleted.

5.1.11

PoFA allows the police in certain circumstances to make applications to either the Biometrics Commissioner or a District Judge for the extended retention of an individual’s biometric information (See Annex C). In such circumstances, applications made under the RDP will not be progressed until such time as the decision of the Biometrics Commissioner or District Judge is known. If the decision is made to approve the continued retention of the biometrics then the application for record deletion will be rejected.

5.1.12

Automated processes written into the PNC ensure the deletion of biometric information in accordance with the retention periods set out in PoFA (See Annex C). However, in all cases, unless an application is made under the RDP, the PNC record will be retained until the person to whom it relates is deemed to have reached 100 years of age.

5.1.13

Attached at Annex D is a table showing the circumstances in relation to which an application can be made under the RDP. These circumstances include where an application is being made for the early deletion of biometric information and circumstances when the biometric information has already been deleted by automated processes in accordance with the legislation and the applicant is seeking only the deletion of their PNC record. In all circumstances, the grounds for deletion must be clearly stated on the application.

7

Information held on a PNC record can be ascertained though the submission of a subject access request.

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5.1.14

Individuals who are seeking the deletion of records owned by Police Scotland or Police Service of Northern Ireland will need to contact those forces directly.

5.1.15

Individuals who claim that their personal data is wrongly held on someone else’s record or that the information recorded on their own record is incorrect is regarded as a data dispute. As a result, all such disputes should be referred by the individual to the force concerned. This process does not cover the resolution of such matters and the ACRO Information Management unit will reject such requests.

5.2

Making an application

5.2.1

Individuals seeking the deletion of their biometric data and/or the deletion of a non-court disposal or ‘Event History’ from the PNC are encouraged to complete a formal application and state the grounds for having their records deleted. An electronic version of the application is available on the ACRO and gov.uk websites: hard copies will be provided on request.

5.2.2

In order to verify the identity of the person making a request for record deletion through reasonable means8, the applicant should provide a copy of a current proof of identity which contains a full name, date of birth and current address. The applicant should not send an original form of identity.

5.2.3

A copy of a proof of identity can include passport, driving licence or similar document.

5.2.4

A copy of a proof of current address should be a full page official form of correspondence showing name and address (e.g. utility bill or bank statement) and dated within the last six months.

5.2.5

The ACRO Information Management unit must be satisfied that the documents provided by an individual sufficiently proves the applicant’s identity. The Chief Officer reserves the right to request more information if they have doubts about the identity of the person making the request.

5.2.6

Further guidance on acceptable proofs of identity can be found on the ACRO website.

5.2.7

If original documents are not in English, in addition to supplying copies, applicants will also need to provide a translation in English.

5.2.8

Applicants must also indicate on the application how they wish to be contacted i.e. by post or by email.

5.2.9

Relevant contact information will then be provided to the Chief Officer of the force that owns the record(s) on the basis that if an email address is cited in the application as the primary method of contact, further communication with the applicant will be by email

8

As outlined in Part 3 ‘Law Enforcement Processing’ of the Data Protection Act 2018

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and if a postal address is cited, further contact with the applicant will be by post9.The ACRO Information Management unit will use the same preferred method of contact as applicable. 5.2.10

If the e-mail option is selected, the applicant should ensure that it is clearly written/ typed on Page 1 of the application form. If not, the ACRO Information Management unit will send any correspondence via post.

5.2.11

Please note that ACRO has a secure email address, but does not accept responsibility for the security of the email address of the applicant. By selecting this option the applicant accepts complete responsibility for this.

5.2.12

Likewise, the applicant is responsible for ensuring that the postal address provided is not one where correspondence is likely to be intercepted by a third party.

5.2.13

The applicant declaration page requires the box to be ‘checked’ by the individual applying for deletion to acknowledge the information outlined in the declaration on Page 5 of the application form.

5.2.14

Applications will only be considered if they originate from the individual concerned, their legal representative, a Member of Parliament or the appropriate adult where applicable.

5.2.15

Applicants who would like the ACRO Information Management unit or Police Force to contact some other person / organisation acting on their behalf in respect of their application (e.g. legal representative), will be required to submit a signed letter of authority with their application setting out the contact details of that person and providing explicit consent for their application to be discussed with that person / organisation.

5.2.16

The signed letter of authority must be dated within the last six months.

5.2.17

The ACRO Information Management unit will accept requests for deletion from a child (Under 18) providing that the ACRO Information Management unit or Police Force are satisfied that the child is capable of understanding their right to erasure and that the child has made the request freely. Responses will go back to the child directly as per the details provided on Page 1 the application form.

5.2.18

If the Police Force has any concerns about the child making the request then they reserve the right to engage the relevant adult as they see fit.

5.2.19

If an individual, such as a parent/legal guardian/appropriate adult, is looking to make a request on behalf of a child then a copy of a proof of identity and current address of the adult must also be included along with the required identity documents of the child.

9

Normal considerations apply if the applicant makes direct contact with forces during the process.

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5.2.20

Responses to requests made on behalf of the child will be sent to the address provided within the application form for the ‘care of’ the adult submitting the request.

5.2.21

In such instances, as per 5.2.13, there is also a check box on the applicant declaration page which the adult should select and date.

5.2.22

5.2.13, 5.2.18, 5.2.19, 5.2.20 also apply in those instances where an application is being made on behalf of a vulnerable adult.

5.2.23

If an individual is making an application on behalf of another adult in an official capacity, a copy of the relevant legal document (e.g. power of attorney) should be supplied where possible.

5.2.24

No fees are applicable for the service provided by the ACRO Information Management unit or by Chief Officers.

5.2.25

A Process Map covering the record deletion process is attached at Annex E.

5.3

Grounds and Supporting Evidence

5.3.1

On the whole, the basis for record deletion will be that an individual is no longer a suspect for the offence for which they were arrested or summonsed i.e. they have been eliminated from enquiries based on the grounds shown at Annex B. If this is so, the applicant is encouraged to make this clear in their application. The process entered into will thereafter validate any assertion made by the applicant i.e. that they had a proven alibi.

5.3.2

However, it is accepted that there will be exceptions to this, for example simple cautions. When an individual is issued with a caution they are presented with a declaration form and by signing this it confirms that the individual understands the consequences of accepting the simple caution that is being administered to them. Therefore, as there is an admittance of committing an offence the basis for a request for record deletion cannot be on the basis that the individual is no longer a suspect.

5.3.3

The submission of a record deletion application to the force should be treated as a MoPI review prompting forces to review all the information that they hold.

5.3.4

Examples of the grounds that Chief Officers are obliged to consider are provided at Annex B. The list is indicative not prescriptive, thus allowing Chief Officers to exercise professional judgment in deciding whether the early deletion of biometric information and the deletion of the associated PNC record is reasonable, based on all the information that is available to them.

5.3.5

If an applicant ticks a ground and the Chief Officer does not feel that this ground has been evidenced then it is best practice that forces review the remaining grounds to see if any of these apply instead.

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5.3.6

In respect of any ground that an individual selects on the application form, the individual is encouraged to provide sufficient supporting information which in turn addresses the relevant ground applicable to their circumstances.

5.3.7

Whilst providing supporting information and circumstances surrounding the event sought for deletion is not a legal requirement, individuals are advised that providing such detail will enable a more thorough review to be carried out by the Chief Officer.

5.3.8

If more than one ground is chosen then the individual should ideally address each of these grounds in turn as this will further support the request for deletion.

5.3.9

However, forces will need to apply a practical approach when reviewing an application and so if an applicant ticks a number of grounds and has not explicitly addressed each one in turn, this is not a valid reason for rejecting an application for review if the applicant has still provided reasons for deletion.

5.3.10

Forces will always need to verify an applicant’s version of events against what they hold locally and so if the information recorded on local systems does not support an applicant’s assertions then this could impact the decision.

5.3.11

In respect of supporting ‘evidence’, individuals are encouraged to include: x

The offence/event that they are seeking to have deleted including any relevant information regarding date, time and location. This enables the ACRO Information Management unit and the force to verify the relevant entry sought for deletion.

x

A full explanation of the circumstances of the arrest / event and the outcome of the investigation.

x

The reason(s) why they feel that the records should be deleted from the PNC, NDNAD and IDENT1 systems. These reasons should, ideally, support the grounds selected on Page 2 of the application form.

5.3.12

As at 5.3.7, although it is not a mandatory requirement for individuals to provide the above supporting ‘evidence’ in respect of an application for record deletion this approach is recommended as it will support such a request.

5.3.13

If an individual chooses to supply any supporting documentation such as statements, NFA notices etc then they are welcome to do so.

5.3.14

Any supporting letters which may be written by the individual/witness/victim can also be submitted. However, individuals must be aware that such documentation may have little impact upon the outcome particularly in respect of submissions from witnesses/victims as forces have no way of knowing the circumstances under which these were created.

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5.3.15

Provided an individual has sufficiently articulated a case for deleting their records from national police systems, and those reasons are examined and agreed by a Chief Officer, then the expectation will be that any records held on the NDNAD and IDENT 1 will be approved for deletion (where applicable) along with the PNC record. However, every request will be determined on a case-by-case basis by the owning force.

5.3.16

If records held on NDNAD and IDENT1 have already been deleted through the automated processes, then consideration need only be given by a Chief Officer to deleting the relevant PNC record – see 2.4. for further information on this circumstance.

5.3.17

Whilst there is no obligation to delete any legally retained records, a Chief Officer must have regard to the RDP and act in accordance with the Guidance issued by the NDNAD Strategy Board when making their decision.

5.3.18

It should be noted that the deletion of a record from the aforementioned systems is entirely at the discretion of the Chief Officer. Absent of a convincing argument as to why a record should be deleted means that the record will be retained in accordance with the current retention policy in place at the time. Once an application is received, the ACRO Information Management unit, through a check of the PNC, will first establish whether the individual is eligible to apply i.e. it may be that their biometric information has already been deleted through the automated processes built into national police systems or the application has been made in respect of the deletion of certain categories of records not covered by the RDP e.g. court convictions.

5.3.19

If the application meets the eligibility criteria, the ACRO Information Management unit will confirm whether the grounds for deletion have been sufficiently articulated by the applicant i.e. they are clear, unambiguous and appear credible. Applications that pass this threshold will be sent to the Chief Officer of the force that ‘owns’ the record(s) and the applicant advised accordingly. Applications that do not pass the threshold will be rejected.

5.3.20

In respect of individuals seeking the deletion of numerous arrest events, the RDP does not allow for a blanket approach to be applied, the process does not operate on the basis of ‘delete one, delete all’.

5.3.21

If an individual is seeking the removal of more than one arrest event / numerous offences then this needs to be made clear in the application with the individual addressing each event in turn, providing the circumstances and reasons for why they wish for that event to be removed and the ground(s) under which they are applying for the removal of that particular event.

5.3.22

The application form provides the relevant separate pages to enable individuals to apply for the removal of more than one event from their PNC record.

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5.3.23

The Chief Officer of the receiving force (in practice a person designated by the Chief Officer) will review the grounds presented in the application and consider any locally held records including; a.

Custody record.

b.

Crime report.

c.

PNC record.

And, if available or relevant: d.

MG3 report (Crown Prosecutor’s advice on charging).

e.

Investigating officer’s report and/or follow up enquires.

f.

Legal Services report.

g.

IPCC investigation/Directorate of Professional Standards report.

h.

Case file or other documentation may be required in complex cases.

6

Affecting Factors

6.1

No further action disposals

6.1.1

The reasons why in certain circumstances the police, LEA or NPPA decide to take ‘No Further Action’ (NFA) in particular cases are many and varied. Sometimes the NFA decision is made by the police or relevant investigating authority and at other times the decision is made by the Crown Prosecution Service (CPS) or relevant prosecuting authority.

6.1.2

This Guidance provides for applications to be made on the grounds shown at Annex B, e.g. ‘No Crime’ or ‘Proven Alibi’. However, where cases result in an NFA outcome and, for the reasons above, it should not be concluded that such a case automatically falls under the grounds of ‘No Crime’.

6.1.3

In this regard, it is not intended that the RDP should be used to challenge the retention of a record held on the PNC when an NFA decision has been made absent of the grounds shown at Annex B being sufficiently ‘evidenced’.

6.1.4

If an individual has only NFA disposals on record then any fingerprints and DNA taken will be automatically disposed of in line with the provisions contained in PACE, as amended. However, the ‘Event History’ on PNC and whether that is retained or deleted remains solely at the discretion of the Chief Officer as outlined at 2.4.

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6.2

Non-conviction outcomes at court

6.2.1

Acquittal at court, dismissal at court, or a conviction being overturned on appeal or by other judicial process, is not in itself grounds for record deletion as PACE allows biometric information to be lawfully retained for three years if an individual is charged with, but not convicted of, a Qualifying offence. Insufficient evidence to convict does not necessarily mean there is sufficient evidence for an individual to be eliminated as a suspect.

6.2.2

If an individual applies for the removal of a record in relation to a ‘Not Guilty’ outcome at Court then they are encouraged to clearly ‘evidence’ one of the grounds detailed in Annex B.

6.3

Event histories and further connected criminality

6.3.1

If an individual has been the subject of more than one arrest then the principle will apply that the early deletion of biometric information and deletion of a specific PNC record/arrest event will be determined by considering that person’s complete ‘Event History’.

6.3.2

Where concern of further connected criminality exists, the early deletion of biometric information and a PNC record will not be approved by a Chief Officer. This discretion only applies in relation to the early deletion of biometric information and PNC record.

6.3.3

The same discretion cannot be exercised in respect of biometric information which must be deleted in accordance with legislation albeit the PNC record may be retained e.g. in those instances where an individual has no previous convictions and their biometric information was taken in respect of an NFA.

6.4

Requirement for positive evidence

6.4.1

This Guidance is based on, though not limited to, a Chief Officer having substantial evidence that someone has been eliminated as a suspect before agreeing to delete their records. In this regard, a key consideration of a Chief Officer will be the nature of the incident that led to the arrest coupled with positive evidence that an individual has been eliminated as a suspect by the police, or relevant investigating agency, due, for instance, to mistaken identity or proven alibi.

6.4.2

Chief Officers must establish positive evidence that supports their decision to delete relevant records. For example, where a victim withdraws an allegation or no longer wishes to proceed, unless the allegation is malicious or false, it does not in itself provide the basis for record deletion. Likewise, insufficient evidence to charge or a case not proceeded with on a technical legal argument e.g. unlawful arrest, will not necessarily mean there is sufficient positive evidence for an individual to be eliminated as a suspect or automatically provide a basis for the deletion of their PNC record.

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6.5

Retention of biometric information due to previous conviction

6.5.1

Initially, a Chief Officer may agree to the deletion of the biometric information in respect of the one event referenced in the application, but if the individual was arrested for a separate offence in relation to which no DNA was taken 10, the DNA profile from the first arrest event will be lawfully retained until investigations into that other arrest event have concluded. If the individual is subsequently convicted of an offence in respect of that other arrest event the biometric information that would otherwise have weeded will be retained until the person is deemed to have reached 100 years of age.

7

Role of the Controller

7.1

The Controller

7.1.1

When a force creates and updates records on the PNC in respect of their investigations then the Chief Officer is the Controller for that data; and as such they are responsible for ensuring that the data is lawfully managed.

7.1.2

When a force creates and updates records on the PNC on behalf of an NPPA then the Chief Officer is the Processor for that data.

7.1.3

If the ACRO Information Management unit receives a request for deletion in respect of an offence of an NPPA offence, then the force will need to liaise with the relevant agency in order to elicit a decision on record deletion.

7.1.4

Chief Officers should aim to respond in writing to the ACRO Information Management unit with their decision within one month of receiving the application. The time should be calculated from the day after the ACRO Information Management unit receives the request (whether the day after is a working day or not) until the corresponding calendar date in the next month.

7.1.5

If this is not possible because the following month is shorter (and there is no corresponding calendar date), the date for response is the last day of the following month11.

7.1.6

For practical purposes, this guidance adopts a 28-day period to ensure that compliance is within a calendar month.

7.1.7

Whilst the ACRO Information Management unit will process applications quickly (usually on the first working day of receipt), it should be noted that some forces exceed the aforementioned timeframe due to the volume of requests that they are processing.

Possibly because it was originally taken in respect of the offence that the applicant is seeking to have deleted. Taken from https://ico.org.uk/for-organisations/guide-to-law-enforcement-processing-part-3-of-the-dp-act2018/individual-rights/the-right-to-erasure-and-the-right-to-restriction/

10 11

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7.1.8

Furthermore, if for whatever reason, the Chief Officer or the ACRO Information Management unit require additional information in order to progress a request for deletion, the 28-day period will not begin until a completed request for deletion is received.

7.1.9

There will also be instances where, due to the circumstances of the case, it will take a Chief Officer longer to assess the evidence and reach a decision. Chief Officers can extend the time to respond to an application by a further two months if the request is complex or if a number of requests have been received from the individual.

7.1.10

In these cases the receiving force should respond to the ACRO Information Management unit within one month to inform them of the status of the application and the reason for delay.

7.1.11

In such instances, the ACRO Information Management unit will contact the applicant and update them accordingly.

7.1.12

In respect of a decision, a template decision form is contained within Annex F and forces are encouraged to use this where possible to ensure that a consistent approach is adopted when responding to applicants.

7.1.13

If the application is agreed, the ACRO Information Management unit will manage the deletion of biometric information from national police systems (NDNAD and IDENT1) and the deletion of any associated records held on the PNC12. A template deletion request form will be used by the ACRO Information Management unit to request the deletion of the relevant records via the NDNAD Service Delivery Team, National Fingerprint Office (NFO) Integrity Team and Home Office Reconciliation Unit, where applicable. The ACRO Information Management unit will notify the applicant of the Chief Officer’s decision.

7.1.14

Where a force decides to delete a PNC record but retain the record held at force level a record should be kept of the rationale for this decision in accordance with relevant retention schedules.

7.1.15

Where a force decides to delete a locally held record as a result of an approved record deletion application this should be managed in accordance with the Authorised Professional Practice (APP) on Management of Police Information (MoPI).

7.1.16

The ACRO Information Management unit should also be notified of a Chief Officer’s decision not to delete relevant records from national police systems.

7.1.17

Chief Officers should provide reasons for their decision to retain the record(s) to the ACRO Information Management unit who in turn will share such information with the applicant.

12

Deletions are to be carried out to the standards set by the Information Commissioner.

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7.1.18

Not providing reasons, specifically in those cases where the information is being retained, is non-compliant with the rights extended to an individual under ‘erasure or restriction of processing’, outlined in Part 3 of the DPA.

7.1.19

When an application to delete records is not agreed by a Chief Officer the applicant should be made aware that their biometric information is being retained under PACE (as amended) and that the continued processing of their personal data is compliant with both PoFA and the DPA.

7.1.20

Similarly, the applicant will be informed if their biometric information is being retained on the basis that they have an impending prosecution or a previous conviction (e.g. in accordance with provisions contained under PACE, as amended).

7.1.21

It will be subject to local policy what rank of officer will be responsible for conducting an initial review of the application. Furthermore, the Chief Officer can delegate decision making where they see fit.

7.1.22

A parallel is drawn with the position set out in Statutory Disclosure Guidance 13 issued by the Home Office which defines ‘Delegated Authority’ as follows: Principle 8 - Any delegation of the chief officer’s responsibilities should be appropriate and fully documented 34. The chief officer should consider whether any aspects of the decision making process are to be delegated. Any delegation should recognise the importance and complexity of the process and the chief officer should be satisfied that the officer to whom the delegation is made is entirely suitable for the task in terms of skills, training and experience. Where delegation occurs, the chief officer should ensure that the delegate has regard to this statutory guidance. Any decision to delegate should be documented and signed off by the chief officer.

7.1.23

In this regard, the only criteria that needs to be considered is whether the officer to whom the delegation is made is entirely suitable for the task in terms of skills, training and experience therefore, it need not be someone of Chief Officer rank but should not drop below Inspector or police staff equivalent.

7.2

Force Deletions

7.2.1

There will be occasions when a force will need to manage the deletion of records outside of the RDP i.e. the need to delete records is not applicant driven, for instance: I.

The outcome of a PSD investigation is that relevant records relating to an individual need to be deleted from national police systems.

www.gov.uk/government/uploads/system/uploads/attachment_data/file/452321/6_1155_HO_LW_Stat_Dis_Guidev3.pdf

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II.

There is a court direction for a force to delete records held on national police systems.

III.

Routine 'housekeeping' i.e. to ensure the accuracy of records therefore requires certain records to be deleted from national police systems.

7.2.2

In all of the above, and in all circumstances where the need to delete records does not stem from an application made under the RDP, then the deletion of records from national police systems should be managed by forces under existing processes through direct contact with the relevant database administrators . Such processes should also be used by forces in respect of the ‘Disregarding Certain Convictions’ procedure.

7.2.3

Forces can contact the ACRO Information Management unit for further advice if required.

8

Appeals

8.1

Overview

8.1.1

There is no formal appeals process with regards to challenging a decision made under the RDP.

8.1.2

However, applicants who wish to challenge an outcome should, in the first instance, formulate the representation that they wish to make in relation to the decision taken by the force to retain their record(s) and the ACRO Information Management unit will forward it to the originating force for their consideration.

8.1.3

Any such representations should be made as soon as feasibly possible or no later than 3 months once an applicant is in receipt of the decision following their initial application for record deletion.

8.1.4

Individuals are encouraged to set out their representation in a coherent and structured way and provide any ‘evidence’ that counters the decision made by the Chief Officer to retain the record.

8.1.5

The representation should also contain any further information or ‘evidence’ which was not previously provided with the application.

8.1.6

A submission of this nature will not be accepted if an individual simply disagrees with the decision that has been made, it should be properly evidenced.

8.1.7

Similarly, it is not the intention that this part of the process is used by an individual to have their investigation re-opened.

8.1.8

An appeal should be either e-mailed or posted to the ACRO Information Management unit who will refer this to the force accordingly.

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8.1.9

The decision on whether or not to uphold an appeal should not be made by the same officer that made the original decision regarding retention.

8.1.10

Once a decision is received, the ACRO Information Management unit will advise the applicant of the outcome.

8.1.11

It is not possible to appeal an appeal decision, and if the ACRO Information Management unit or Chief Officer deems a request for deletion to be manifestly unfounded or excessive then the applicant will be advised as such.

8.1.12

However if there are exceptional circumstances where new information comes to light at a later date, that wasn’t previously available to the applicant, this will be considered on a case by case basis by the relevant force to determine whether they wish to re-review the request.

8.2

Re-applying for record deletion

8.2.1

8.1.12 above also applies in those instances where an applicant submits a fresh application for record deletion in respect of the same event previously reviewed and decided upon under the RDP.

8.2.2

In such instances, the force will advise the ACRO Information Management unit whether they will accept the request and this will be determined based on factors such as the passage of time since the initial request for deletion, whether there is new information available and having due regard to the MoPI framework in respect of the local records which provide set review periods.

9

Complaints Procedure

9.1

Data Protection Officer (DPO)

9.1.1

Each force has a DPO responsible for the integrity of personal data held on force systems. If an individual believes that the information held about them is inaccurate, incomplete or is retained longer than necessary for a policing purpose they can write to the DPO. They will need to contact the force directly in order to do this.

9.2

Professional Standards Department (PSD)

9.2.1

Each force has a PSD; if an individual feels that a member of the police force has behaved in an unprofessional manner then they can write to them. They will need to contact the force directly in order to do this.

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9.3

Information Commissioner’s Office (ICO)

9.3.1

The ICO is the UK's independent body set up to uphold information rights. Their role is to uphold information rights in the public interest.

9.3.2

If an individual believes that a force is not complying with the DPA or other relevant legislation they can contact the ICO for advice or to raise a complaint in respect of a decision made under this process. https://ico.org.uk/make-a-complaint/your-personal-information-concerns/

9.4

Judicial Review

9.4.1

An individual also has the right to seek judicial review if they wish to challenge a decision. https://www.judiciary.gov.uk/you-and-the-judiciary/judicial-review/

9.5

Independent Office for Police Conduct (IOPC)

9.5.1

The IOPC oversees the police complaints system in England and Wales and sets the standards by which the police should handle complaints.

9.5.2

They are independent and make their decisions entirely independently of the police and government. https://www.policeconduct.gov.uk/

9.6

ACRO

9.6.1

If an individual wishes to make a complaint in respect of the specific processes undertaken by the ACRO Information Management unit then this should be made in writing to the following address: Senior Manager for National Services ACRO PO Box 481 Fareham PO14 9FS

10

Accountability

10.1

Protecting personal information

10.1.1

A Privacy Impact Assessment has been undertaken and all procedures used in the RDP conform to relevant Information Assurance handling requirements.

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10.1.2

All information provided by the applicant will be treated in the strictest confidence and will not be disclosed to any person or organisation not involved in the process without the express consent of the applicant.

10.1.3

The ACRO Information Management unit will share personal information with nominated points of contact in police forces, LEA, NPPA and the Home Office and with other parties as necessary for the purpose of processing an individual’s application.

10.1.4

The ACRO Information Management unit may also use certain information (e.g. address and alias details) provided within an individual’s application to update the PNC record in respect of certain cases where a request is rejected to ensure compliance with the 4th DPA principle.

10.1.5

The ACRO Information Management unit will retain all applications and correspondence with forces / relevant agencies for a period of 24 months.

10.1.6

This is usually when the applicant is advised of the Chief Officer’s decision, but will be extended to include any follow up enquiries, appeals or complaints to the point at which they are resolved.

10.1.7

Applications and personal information will be deleted from the ACRO Information Management unit’s electronic files after this period has elapsed.

10.1.8

Applicants are advised to keep safe all correspondence both sent and received as further copies will not be available once the information has been deleted by the ACRO Information Management unit.

10.2

Monitoring

10.2.1

The ACRO Information Management unit will monitor the deletion of records from the PNC and biometric information from NDNAD and IDENT1 to ensure that relevant processes are completed without delay.

10.3

Audit

10.3.1

The ACRO Information Management unit may be subject to annual audit by the NDNAD Strategy Board or as directed by IMORCC.

10.4

Annual Report

10.4.1

The NDNAD Strategy Board, under provisions contained in PoFA, is required to make an annual report to the Secretary of State for the Home Department about the exercise of its functions. RDP statistics will be used in the production of this report if called upon.

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11

Communications

11.1

Forms and Guidance

11.1.1

The RDP application form and associated guidance is available on the ACRO website.

11.1.2

If an individual requires a copy of the guidance and application form to be posted they are to advise the ACRO Information Management unit via e-mail or by contacting the ACRO Customer Services team so that the unit can arrange for this.

11.1.3

Enquiries regarding this guidance should be directed in the first instance to the ACRO Deletions Mailbox: [email protected]

11.1.4

The ACRO Information Management unit do not routinely take direct telephone calls from the public, however, this does not prevent an individual from making a request for deletion over the telephone. By calling the ACRO Customer Services line, an individual will be advised on the steps they need to take in order to progress a request for record deletion which, will be through submission of an application form. Telephone: +44(0)2380 479 920

11.1.5

If an update is sought on the status of an application then applicants should e-mail in to the ACRO Deletions Mailbox ([email protected]) and the unit will assist. However, the general rule is that if the ACRO Information Management unit have not contacted an applicant with a decision then this means that they are not yet in receipt of one from the force.

11.1.6

If applicants do not have access to e-mail and wish for further information or an update on their application, they can call the ACRO Customer Services line who will take a message for the ACRO Information Management unit who will then take the necessary action and contact the applicant back.

11.1.7

Please note that the ACRO Customer Services department cannot provide specific advice on the RDP nor are they able to provide an update on the status of an application.

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Annex A – Definitions The following terminology is used throughout this Guidance: Biometric information – is the term that refers to the DNA profile and fingerprints, collectively referred to as section 63D material in PoFA. Conviction – The act of being found guilty of an offence. Primarily this refers to a finding of Guilt at Court. However, under the Protection of Freedoms Act 2012 a conviction also includes cautions, warnings and reprimands which means that biometric information will be retained indefinitely. Cautions, warnings and reprimands are also known as ‘Out of Court Disposals’. Criminal Justice Arrestee (CJ Arrestee) – a person detained at a police station having been arrested for a recordable offence whose DNA samples and fingerprints are lawfully taken. Where such an arrest results in no further action being taken, the person is referred to as a Criminal Justice arrestee - ‘CJ Arrestee’. DNA Profile - A numerical representation of 13 specific points on a person’s DNA which is developed from the biological sample originally provided. A DNA profile amounts to nothing more than a string of numbers. DNA Sample – Any material that has come from a human body and consists of or includes human cells. DPA – Data Protection Act 2018 Event History – refers to non-conviction outcomes held on the PNC. Excluded Offence – is any recordable offence: o

That is not a ‘Qualifying Offence’ and

o

The offence was committed when the person was under 18 years old and

o

The person was not given a custodial sentence of more than 5 years and

o

It is the only recordable offence of which the person has been convicted.

IDENT 1 – National Criminal Fingerprint Database. Minor Offence – is any recordable offence that is not a ‘Qualifying Offence’. MoPI – Management of Police Information. LEA – Law Enforcement Agency. NDNAD – National DNA Database.

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NFA – No Further Action police disposal. NPPA – Non Police Prosecuting Agency. Out of Court Disposal – Caution, Warning Reprimand, Youth Caution, Conditional Caution, Youth Conditional Caution. PACE – Police and Criminal Evidence Act 1984. PNC – Police National Computer. PND – a Penalty Notice for Disorder (PND) is a one-off fine that can be issued on the spot to anyone over the age of 16. They are issued for low level anti-social and nuisance offending such as drunk and disorderly. PoFA – Protection of Freedoms Act 2012. Policing Purpose – relates to the investigation, detection and prevention of crime. Qualifying Offence – currently there are over 400 ‘Qualifying Offences’. They are the more serious offences such as murder, manslaughter, rape, wounding, grievous bodily harm, assault occasioning actual bodily harm, robbery and burglary. Also included are numerous sex, indecency and firearms offences. Recordable Offence – is an offence for which the police are required to keep a record. Generally speaking, these are crimes for which an individual could be sentenced to a term of imprisonment or they have otherwise been made recordable by statute. The term also includes a number of non-imprisonable offences for example begging and illegal taxi touting. The police are not able to take or retain the biometric information of an individual who is arrested for an offence which is not recordable. Record Deletion Process (RDP) – is the process defined in this Guidance by which an individual can apply to have their biometric information and/or PNC records deleted from national police systems provided the grounds for doing so have been examined and agreed by a Chief Officer.

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Annex B – Grounds for Record Deletion There are no set criteria for the deletion of records e.g. “beyond reasonable doubt” or “balance of probabilities”; it is for Chief Officers to exercise professional judgment based on the information available. Chief Officers will consider applications on an individual basis and will not set retention periods for groups of individuals, however defined. The following are examples of circumstances in relation to which the deletion of biometric information and a person’s PNC record should be considered by a Chief Officer; Unlawfully Taken The taking of fingerprints or a DNA sample from which the DNA profile was derived, was unlawful (i.e. if there was no arrest or the arrest was for a non-recordable offence.). Mistaken Identity / Unlawful Arrest. The taking of fingerprints or a DNA profile which was derived from a sample taken from a person in connection with an arrest which was unlawful. Or, the arrest was based on mistaken identity. An ‘arrest based on mistaken identity’ refers to circumstances whereby there was an error such as arresting the wrong “John Smith”, notwithstanding that the arrest itself may still be lawful. No Crime. Where it is established that a recordable crime has not been committed. For example, a sudden death where an individual is arrested at the scene and subsequently charged, but after post mortem it is determined that the deceased person died of natural causes and not as a result of homicide. It should be noted that being acquitted or found ‘Not Guilty’ at Court does not automatically mean that No Crime was committed as the CPS would have felt that there was enough evidence in the first instance to bring charges. Malicious/False Allegation. Where the case against an individual has been withdrawn at any stage, and there is corroborative evidence that the case was based on a malicious or false allegation. Proven Alibi. Where there is corroborative evidence that the individual has a proven alibi and as a result s/he is eliminated from the enquiry after being arrested. Incorrect Disposal. Where disposal options are found to have been administered incorrectly, and under the correct disposal there would be no power to retain the DNA profile. In such circumstances, consideration should be given to deleting the DNA profile, fingerprints and the PNC record. Deletion in these circumstances could also be the product of review within the criminal justice process, for example, the withdrawal of a caution. Suspect status not clear at the time of arrest. Where an individual is arrested at the outset of an enquiry, the distinction between the offender, victim and witness is not clear, and the individual is subsequently eliminated as a suspect (but may be a witness or victim). Version 2.0 B-1

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Judicial Recommendation. If, in the course of court proceedings, a Magistrate or Judge makes a recommendation that an individual’s DNA and fingerprints should be deleted. On such occasions, due consideration should be made in relation to the deletion of the PNC record. Another person convicted of the offence. If there is the conviction of another person for the offence then the Chief Officer may wish to consider the deletion of the biometric information and PNC record, providing there is no possibility of there being more than one offender. Public Interest. Where there is a wider public interest to do so. A Chief Officer must form an overall view on whether it would be in the public interest or not to retain the records in question based on all the information that is available to them. There would be a series of factors that Chief Officer would consider e.g. seriousness of the offence, level of culpability of the individual, whether the individual was under 18. Deletion of records from national police systems will not usually take place unless the Chief Officer is satisfied that there are Public Interest factors tending against retention outweigh those tending in favour.

Version 2.0 B-2

413

414

0

1

2

3

4

5

6

2 Y E A R S

Y E A R S

3

(*)

Y E A R S

5

I N D E F I N I T E I N D E F I N I T E

Scenario

Any age arrested or Any age arrested Penalty Notice for Any age charged Under 18 convicted Under 18 convicted Adult convicted of charged with a but not charged Disorder but not convicted of a Minor Offence of a Qualifying any Recordable Minor Offence but with a Qualifying of a Qualifying Offence Offence not convicted Offence Offence

Y E A R S

3

2 Y E A R S

2

Y E A R S

Note 2: The above table does NOT apply to the PNC record.

C-1

Version 2.0

* Plus length of any custodial sentence of less than 5 years. If 5 years or more or 2nd conviction then retention is INDEFINITE

Retention Period defined by PoFA

If granted by Biometrics Commissioner

Possible extension by District Judge

Note 1: The retention periods shown assumes that a person has no previous convictions and their biometric information is being held for no other reason

Biometric Retention

Annex C – Retention Periods for Biometric Information (Fingerprints and DNA)

Deletion of Records from National Police Systems Guidance

Disposal

(b)

Court Conviction

Court Conviction

Court Conviction

Ser

(a)

1

2

3

415

Under 18 convicted of a minor offence.

Under 18 convicted at court of a qualifying offence.

Adult convicted at court of any recordable offence.

(c)

Circumstance

Annex D – Table of Circumstances and Eligibility

No

No

2nd Conviction: Indefinite retention.

No

No

(e)

DNA Profile

No

No

No

No

(f)

FP

No

No

No

No

(g)

PNC

Eligibility of the Record Deletion Process

1st Conviction: 5 years (plus the length of any custodial sentence of less than 5 years), OR indefinite if the custodial sentence is 5 years or more

Indefinite retention.

Indefinite retention.

(d)

Retention Period of Fingerprints and DNA

D-1

Version 2.0

Individuals can appeal against the conviction itself if new evidence emerges: https://www.gov.uk/appealagainst-sentenceconviction/magistrates-court-verdict

Individuals can appeal against the conviction itself if new evidence emerges: https://www.gov.uk/appealagainst-sentenceconviction/magistrates-court-verdict

Individuals can appeal against the conviction itself if new evidence emerges: https://www.gov.uk/appealagainst-sentenceconviction/magistrates-court-verdict

Individuals can appeal against the conviction itself if new evidence emerges: https://www.gov.uk/appealagainst-sentenceconviction/magistrates-court-verdict

(h)

Comment

Deletion of Records from National Police Systems Guidance

5

Out of Court Disposal

Out of Court Disposal

4

6

(b)

Out of Court Disposal

(a)

Disposal

Ser

416

Under 18 awarded an ‘Out of Court Disposal’ in respect of a minor offence (youth caution, conditional caution, reprimand and final warning) and no previous convictions on record.

Under 18 awarded an ‘Out of Court Disposal’ in respect of a qualifying offence (youth caution, conditional caution, reprimand and final warning).

Adult awarded an ‘Out of Court Disposal’ for any recordable offence (adult simple caution or conditional caution).

(c)

Circumstance

5 year retention UNLESS there is a subsequent court conviction or out of court disposal on record before the end of the 5 year period. The presence of a subsequent conviction will then result in INDEFINITE retention.

Indefinite retention.

Indefinite retention.

(d)

Retention Period of Fingerprints and DNA

Yes

Yes

Yes

(e)

DNA Profile

Yes

Yes

Yes

(f)

FP

Yes

Yes

Yes

(g)

PNC

Eligibility of the Record Deletion Process

D-2

Version 2.0

Individuals can use the Record Deletion Process to apply to have their records deleted from national police systems (NDNAD, IDENT1 and PNC) if they can evidence grounds that are agreed by a Chief Officer.

Individuals can use the Record Deletion Process to apply to have their records deleted from national police systems (NDNAD, IDENT1 and PNC) if they can evidence grounds that are agreed by a Chief Officer.

Individuals can use the Record Deletion Process to apply to have their records deleted from national police systems (NDNAD, IDENT1 and PNC) if they can evidence grounds that are agreed by a Chief Officer.

(h)

Comment

Deletion of Records from National Police Systems Guidance

Non-Conviction

7

Non-Conviction

(b)

(a)

8

Disposal

Ser

Any age charged with but not convicted of a qualifying offence.

Any age charged with but not convicted of a qualifying offence.

(c)

Circumstance

Automatic 3 year retention + 2 year extension granted by District Judge

Automatic 3 year retention from date of samples.

(d)

Retention Period of Fingerprints and DNA

No

Yes

(e)

DNA Profile

No

Yes

(f)

FP

No

Yes

(g)

PNC

Eligibility of the Record Deletion Process

417

D-3

Version 2.0

Individuals cannot use the Record Deletion Process to apply for record deletion during the 2 year period if an extension has been granted. See below.

S.63D material automatically deleted from NDNAD and IDENT1 at the expiry of the 3 year period unless an application is made to a District Judge to retain the material for a further 2 years.

A successful outcome will result in the deletion of the associated PNC entry.

However, individuals can apply under the Record Deletion Process to have their s.63D material deleted earlier if they can evidence grounds that are agreed by a Chief Officer.

S.63D material is automatically deleted from NDNAD and IDENT1 3 years from the date the case is resulted on the PNC.

(h)

Comment

Deletion of Records from National Police Systems Guidance

9

Non-Conviction

(b)

Non-Conviction

(a)

10

Disposal

Ser

Any age arrested for but not charged with a qualifying offence.

Any age charged with but not convicted of a qualifying offence.

(c)

Circumstance

Automatic deletion UNLESS 3 year extension is granted by the Biometrics Commissioner.

Automatic 3 year retention + 2 year extension granted by District Judge

(d)

Retention Period of Fingerprints and DNA

No

No

(e)

DNA Profile

No

No

(f)

FP

See (h)

Yes

(g)

PNC

Eligibility of the Record Deletion Process

418

D-4

Version 2.0

If no extension is applied for, individuals can use the Record Deletion Process to apply to have the PNC record deleted.

Individuals cannot use the Record Deletion Process to apply for record deletion once an extension of retention has been granted.

S.63D material will be automatically deleted from NDNAD and IDENT1 as soon as the case is resulted on the PNC unless an application to retain the material is made to the Biometrics Commissioner.

Individuals can use the Record Deletion Process to apply to have their PNC record deleted after the expiry of the 2 year period if they can evidence grounds that are agreed by a Chief Officer.

S.63D material is automatically deleted from NDNAD and IDENT1 at the expiry of the 2 year extension period.

(h)

Comment

Deletion of Records from National Police Systems Guidance

Disposal

(b)

Non-Conviction

Ser

(a)

11

Any age arrested for but not charged with a qualifying offence.

(c)

Circumstance

Initial 3 year extension granted by the Biometrics Commissioner + further 2 years granted by District Judge.

(d)

Retention Period of Fingerprints and DNA

No

(e)

DNA Profile

No

(f)

FP

See (h)

(g)

PNC

Eligibility of the Record Deletion Process

419

D-5

Version 2.0

If no extension is applied for, individuals can use the Record Deletion Process to apply to have the PNC record deleted.

In such scenarios, individuals can use the Record Deletion Process to apply to have their PNC record deleted after the expiry of the 2 year period if they can evidence grounds that are agreed by a Chief Officer.

Individuals cannot use the Record Deletion Process to apply for record deletion once an extension of retention has been granted by the District Judge.

S.63D material is automatically deleted from NDNAD and IDENT1 at the expiry of the 2 year extension period.

(h)

Comment

Deletion of Records from National Police Systems Guidance

12

Non-Conviction

(b)

Non-Conviction

(a)

13

Disposal

Ser

Any age arrested, charged for a minor offence and given a Discontinuance.

Any age arrested, charged but found ‘Not Guilty’ of a minor offence.

(c)

Circumstance

6 month retention from court date UNLESS there is a previous court conviction or out of court disposal on record. The presence of a previous conviction will result in INDEFINITE retention.

None UNLESS there is a previous court conviction or out of court disposal on record. The presence of a previous conviction will then result in INDEFINITE retention of fingerprints and DNA.

(d)

Retention Period of Fingerprints and DNA

See (h)

See (h)

(e)

DNA Profile

See (h)

See (h)

(f)

FP

Yes

420

D-6

Version 2.0

Unless there is a previous court conviction or out of court disposal on record. The presence of a previous / subsequent conviction will retain the S.63D material taken in respect of the non-conviction. However, the record(s) may still eligible for review under the RDP.

S.63D material will be automatically deleted from NDNAD and IDENT1 at the expiry of the 6 month retention period.

The presence of a previous / subsequent conviction will retain the S.63D material taken in respect of the non-conviction. However, the record(s) may still eligible for review under the RDP.

(h) S.63D material will be automatically deleted from NDNAD and IDENT1 as soon as the case is resulted on the PNC unless there is a previous conviction on record.

(g)

Comment

Yes

PNC

Eligibility of the Record Deletion Process

Deletion of Records from National Police Systems Guidance

Disposal

(b)

Non-Conviction

Non-Conviction

Ser

(a)

14

15

Penalty Notice for Disorder (PND)

Any age arrested for but not charged with a minor offence, no previous convictions on record.

(c)

Circumstance

2 year retention from issuance.

None

(d)

Retention Period of Fingerprints and DNA

Yes

No

(e)

DNA Profile

Yes

No

(f)

FP

Yes

Yes

(g)

PNC

Eligibility of the Record Deletion Process

421

D-7

Version 2.0

Alternatively, they can use the Record Deletion Process to apply to have their PND record deleted from the PNC after the expiry of the 2 year period if they can evidence grounds that are agreed by a Chief Officer.

Individuals can have their s.63D material deleted early if they can evidence grounds that are agreed by a Chief Officer. A successful application will result in the deletion of the associated PNC entry.

S.63D material deleted from NDNAD and IDENT1 2 years from the date their case is resulted on the PNC.

Individuals can apply to have their PNC record deleted if they can evidence grounds that are agreed by a Chief Officer

S.63D material deleted from NDNAD and IDENT1 as soon as the case is resulted on the PNC.

(h)

Comment

Deletion of Records from National Police Systems Guidance

Deletion of Records from National Police Systems Guidance

Annex E – Process Map Request received by ACRO No

Application complete

Yes Does it meet the initial deletion criteria?

No

Applicant resubmits i.e. with proof of identity or elaboration on grounds

Yes Does the application relate to the deletion of the following? PNC record only?

Biometric information only?

Biometric information and PNC record?

No

Yes Has one or more of the grounds at Annex B been identified? ŹUnlawfully Taken ŹMistaken Identity / Unlawful Arrest ŹNo Crime Ź0DOLFLRXV)DOVH$OOHJDWLRQ ŹProven Alibi ŹIncorrect Disposal

Yes Is biometric information shown on the PNC?

Yes

No

Ź6XVSHFW6WDWXV1RWClear ŹJudicial Recommendation Ź$QRWKHU3HUVRQ&RQYLFWHG ŹPublic Interest

No

Is the application in respect of the deletion of the PNC only?

Should the biometric information be on PNC?

No

No

ACRO arrange for PNC to be updated to allow biometrics to weed

Yes ACRO send application to relevant Chief Officer

Yes

Biometric weed confirmed?

Application agreed by Chief Officer

Yes

No

Yes ACRO arranges deletion of biometric and PNC record / entry

Owning forces notified when records are deleted and to arrange deletion of local FPs when required.

ACRO corresponds with the applicant

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Deletion of Records from National Police Systems Guidance

Annex F – Force Decision Template

Nominal Information

ACRO Ref: RD

Subject Name: ASN: PNC ID: Outcome of application for deletion Force Decision: Grounds on which the application has been APPROVED/PARTIALLY APPROVED/REJECTED: Additional/other grounds: Refused - Rationale Reason for application rejection (please enter below the rationale/justification for rejection): տ

Please confirm that you are happy the above justification will be disclosed to the applicant

Approvals If a deletion has been approved please confirm the records that are to be deleted: If other please specify:

Version 2.0 F-1

423

Appendix K ACRO Record Deletion Form

425

ACRO Record Deletion Form

Page 1 of 1

Record Deletion Application Form Version 2.0

The information supplied in connection with this request will be used for the purpose of processing this request and to ensure the accuracy of police systems where applicable. * = mandatory field Have you previously submitted a deletion request to force? If yes, please provide details on Page 4. Yes

No

Personal information * Title:

Office use only:

Mr Mrs Miss Ms Other (please specify):

* All Forename(s): * Surname (Family name): * Previous name: * Date of birth: * Place of Town: Birth: Country: * Gender:

Ethnic Appearance:

Male

Female

Other

White North European

White South European

Black

Chinese, Japanese or South East Asian

Middle Eastern

Asian

Other or Declined * Current Address:

This is the address the RDU will send the decision letter to and should match your proof of address.

* Address provided when arrested / charged: Write AS ABOVE if this address is the same as current address.

This application form must be completed in English.

ACRO, PO Box 481, Fareham, Hampshire, PO14 9FS [email protected] @ACRO_Police_CST | acro.police.uk

426

ACRO Record Deletion Form

Page 2 of 1

* Contact details Providing these details may reduce any delay in processing your application should the Police need to contact you to clarify any of the information you have given. By providing these details you give consent for the police to make contact with you by this method. Contact Tel No. 1:

Contact Tel No.2:

Email Address: * Records that you are applying to have deleted – Please note that this application does not apply for the deletion of records held on local police systems.

DNA profile

Fingerprints

PNC record

Photograph

* Proof of Identity It is essential that the Police establish they are providing information to the correct person. You must enclose an official proof(s) of identity which clearly shows your name, date of birth and current address (dated within the last 6 months). It will assist us with processing your request if at least one proof is a photographic identity document such as your passport or driving licence. Current address proofs can include a utility bill or a bank statement. Passport (photo page)

Driving licence (photo)

Other

And

proof of address

* Grounds for Record Deletion The guidance issued in respect of the Record Deletion Process sets out the grounds under which an application should be considered. Please identify the reason(s) below for which you consider to be the grounds on which you make this application Unlawfully taken. Where you believe your DNA or fingerprints were taken unlawfully. (You should note that Section 1 of the Protection of Freedoms Act 2012 provides that a Chief Officer must destroy your DNA and fingerprints if it appears they have been taken unlawfully). Mistaken identity / unlawful arrest. Where you believe that your arrest was unlawful or was based on you being mistakenly identified. (You should note that Section 1 of the Protection of Freedoms Act 2012 provides that a Chief Officer must destroy your DNA and fingerprints if it appears they were taken unlawfully or based on mistaken identity). No crime. Where is it established that no crime has been committed. For example, a sudden death where an individual is arrested at the scene and subsequently charged, but after post mortem it is determined to be natural causes and not a homicide. Malicious/false allegation. Where you have been arrested and charged, but the case has been withdrawn at any stage, and there is corroborative evidence that the case was based on a malicious or false allegation. Proven alibi. Where there is corroborative evidence that you have a proven alibi and as a result have been eliminated from the enquiry after being arrested. Incorrect disposal. Where the disposal options applied by the police following your arrest are found to have been administered incorrectly. Record deletion in these circumstances could also be the product of review within the criminal justice process, for example, the withdrawal of a caution.

acro.police.uk/Early_Deletion_of_Biometric_Information_Application

427

ACRO Record Deletion Form

Page 3 of 1

Suspect status not clear at the time of arrest. Where you were arrested at the outset of an enquiry where the circumstances and distinction between the offender, victim and witness is not clear, and you were subsequently eliminated as a suspect (but you may be a witness or victim). Judicial recommendation. If, in the course of court proceedings, a magistrate or judge makes a recommendation that your DNA, fingerprints or PNC record should be deleted. Another person convicted of the offence. Where the conviction of another person for the offence may constitute grounds for the deletion of your DNA, fingerprints and PNC record. Public interest. Where you believe the chief officer should determine that there is a wider public interest to delete your DNA, fingerprints or PNC record.

* Event 1 - Details of event leading to arrest, report, summons, voluntary attendance or issuing of a Penalty Notice for Disorder (PND). NB - If you have further event histories / PNDs for consideration under this process – please provide details from Page 7 onwards. The police force and station who dealt with your case

Force Station

Name of the police officer who dealt with your case Date and time that you were Date arrested/reported/summonsed/ issued a PND The offence or offences that you were arrested/reported/summonsed issued a PND for To the best of your knowledge, has the police investigation concerning you concluded?

Time

Yes

No

Please provide details of the circumstances of the event sought for deletion. In addition, please provide detailed evidence below to support the grounds selected on Page 2. This will assist the chief officer’s decision making process. (Further information can be added on the continuation sheet on page 5 if necessary).

acro.police.uk/Early_Deletion_of_Biometric_Information_Application

428

ACRO Record Deletion Form

Page 4 of 1

Continuation page Please add any additional information on this page

acro.police.uk/Early_Deletion_of_Biometric_Information_Application

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ACRO Record Deletion Form

Page 5 of 1

* Applicant declaration 1. I understand the questions asked in this application and I confirm that the information I have supplied is accurate and I am the individual to whom it relates ** 2. I enclose with my application a copy of a current identification document and a copy of a proof of current address which will assist the Police in establishing that I am the person to whom this application relates. 3. ** If I am a parent/legal guardian/appropriate adult acting on behalf of the applicant then I have enclosed a copy of proof of identity and current address pertaining to me in addition to those pertaining to the applicant. 4. **If I have Power of Attorney for the applicant, I have enclosed a copy of the Power of Attorney documents with this request. 5. **If I am a legal representative acting on behalf of the applicant then I have enclosed a signed letter of authority dated within the last 6 months to reflect this. 6. I authorise ACRO to deal with my application through the relevant chief officer. 7. I understand that I may be contacted by ACRO in relation to this application. If necessary ACRO may leave telephone messages or e-mail me in relation to this application (using the contact details I have provided on page 1). 8. I understand that this application can be delayed if:  I fail to complete the application form correctly or enclose the incorrect identity documents.  Send it directly to the force as opposed to ACRO – applications sent to the force may be returned to you.  The police investigation of the offence for which I was arrested is still ongoing and my connection with that investigation has not been concluded.  There is an unforeseen event or occurrence outside of ACRO’s control such as a postal strike or computer system failure. 9. I understand that the result of my application will be notified to me in writing at the current address I have provided on page 1 of this form. Alternatively, I can elect to receive this written notification as an attachment by email to the email address I have provided on page 1. 10. I understand that a person who impersonates or attempts to impersonate another person without their knowledge may be guilty of an offence.

* I would like the result of my application to be sent to me by: Note – if no option is selected, the decision letter will be sent via POST

Post (sent to my current address detailed on page 1) Email (sent to my email address detailed on page 1)

PLEASE NOTE: EMAIL DECISION LETTERS DO NOT BEAR A WET SIGNATURE. IF YOU REQUIRE A WET SIGNATURE, PLEASE SELECT A POSTAL RESPONSE. Email decisions will be sent to the email address specified on Page 1 of the application form. The email response

will be sent from ACRO’s secure network. However, please note that delivery to your personal inbox is insecure via the public internet, unless you have a secure email address. It is your responsibility to ensure that the email address submitted is accurate. ACRO cannot accept responsibility for any loss or inappropriate access to the email response once it has left our secure network and has been sent to the email address you have provided.

acro.police.uk/Early_Deletion_of_Biometric_Information_Application

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ACRO Record Deletion Form

Page 6 of 1

Applicant declaration (continued) * By ticking this box I (the Applicant) acknowledge and understand the aforementioned declarations on Page 5. * Date: For Parent/Legal Guardian/Appropriate Adult only acting on behalf of the applicant. By ticking this box I (Parent/Legal Guardian/Appropriate Adult) acknowledge and understand the aforementioned declarations on Page 5 on behalf of the applicant. Date:

Applicant signature for postal applications (not applicable to email requests) The information I have supplied in this request is correct. By signing this form I accept the aforementioned declarations outlined on Page 5 of the application form. * Signature of Applicant / Parent / Legal Guardian / Appropriate Adult (delete as appropriate): * Date:

Application check list Application (fully completed and declarations acknowledged) Proof of identity document enclosed (copies will not be returned) Proof of current address (copies will not be returned) Any additional documents to support your application Correct postage costs (ACRO will not accept additional postal charges) Documents are not stapled or pinned together Please send your completed application and associated documents via e-mail: [email protected] Or via post to: Information Management, ACRO, PO Box 481, Fareham, Hampshire, PO14 9FS If you have any queries in relation to this process please e-mail or visit our website: Email: [email protected] Website: https://www.acro.police.uk/acro_std.aspx?id=699

acro.police.uk/Early_Deletion_of_Biometric_Information_Application

431

ACRO Record Deletion Form

Page 7 of 1

Event 2 - Details of event leading to arrest, report, summons, voluntary attendance or issuing of a Penalty Notice for Disorder (PND). The police force and station who dealt with your case

Force Station

Name of the police officer who dealt with your case Date and time that you were Date arrested/reported/summonsed/ issued a PND The offence or offences that you were arrested/reported/summonsed issued a PND for To the best of your knowledge, has the police investigation concerning you concluded?

Time

Yes

No

Please provide details of the circumstances of the event sought for deletion. In addition, please provide detailed evidence below to support the grounds selected on Page 2. This will assist the chief officer’s decision making process. (Further information can be added on the continuation sheet on page 8 if necessary).

acro.police.uk/Early_Deletion_of_Biometric_Information_Application

432

ACRO Record Deletion Form

Page 8 of 1

Continuation page Please add any additional information on this page

acro.police.uk/Early_Deletion_of_Biometric_Information_Application

433

ACRO Record Deletion Form

Page 9 of 1

Event 3 - Details of event leading to arrest, report, summons, voluntary attendance or issuing of a Penalty Notice for Disorder (PND). The police force and station who dealt with your case

Force Station

Name of the police officer who dealt with your case Date and time that you were Date arrested/reported/summonsed/ issued a PND The offence or offences that you were arrested/reported/summonsed issued a PND for To the best of your knowledge, has the police investigation concerning you concluded?

Time

Yes

No

Please provide details of the circumstances of the event sought for deletion. In addition, please provide detailed evidence below to support the grounds selected on Page 2. This will assist the chief officer’s decision making process. (Further information can be added on the continuation sheet on page 10 if necessary).

acro.police.uk/Early_Deletion_of_Biometric_Information_Application

434

ACRO Record Deletion Form

Page 10 of 1

Continuation page Please add any additional information on this page

acro.police.uk/Early_Deletion_of_Biometric_Information_Application

435

Appendix L MPS DPA Dispute Form

437

MPS DPA Dispute Form

RESTRICTED (WHEN COMPLETE)

DPA DATA DISPUTE FORM Data Protection Act 1998

DPA & PNC Complaints | MPS Public Access Office | PO BOX 57192 | London | SW6 1SF Returning This Form:

Section 1

The completed form, with appropriate proof of identity should be posted to the address above within four weeks of the date of postmark.

About Yourself

Title (Miss, Mr etc): Surname: First Name (s): Maiden/Former Name:

Gender:

Date of Birth:

Place of Birth:

Male

Female

Home Address:

(inc postcode. This address is where replies will be sent)

Daytime Tel No’s:

Work:

Home:

Email Address:

Section 2

Proof of Identity

To help establish your identity you must provide copies of two different official documents which between them provide sufficient information to prove your full name, date of birth and current home address (this should be the same address as section one). It should also show your signa ture. Photocopies are acceptable and do not need to be certified. Please send your proof of identity with this form. e.g. disclosure, driving licence, passport, utility bill, bank statement

Section 3

Dispute Information Please explain below details of your dispute. Please include any reference numbers of disclosure documents you have received (such as CRB or Subject Access). Continue on reverse of this form if needed.

Section 4

Declaration

The information provided in this form is correct and I am the person to whom it relates. Signature:

Date:

Warning: A person who impersonates another or attempts to impersonate another maybe guilty of an offence. PL E ASE PROVIDE A C O PY OF AN Y DISC LO SU R E YOU H AV E BEEN G IVEN IF PO SSIBLE The information supplied in connection with this application will be used to administer this request and for the purposes we are registered with the Information Commissioners Officer under reference Z4888193. Retention Period: 2 years MP 277/12

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Appendix M Form T98 Notice of Appeal

439

Form T98 Notice of Appeal

General Regulatory Chamber (GRC)

Notice of appeal or application This form is for making an appeal or application to the First-tier Tribunal (General Regulatory Chamber). The First-tier Tribunal (General Regulatory Chamber) is administered by HM Courts & Tribunals Service, an executive agency of the Ministry of Justice, and is independent of regulators.

1

Please read ‘Guide to completing the notice of appeal’ before completing this form. If you are completing this form by hand please complete the form legibly, using black ink and BLOCK CAPITALS. You may use extra sheets of paper but please add your name at the top of each extra page.

Your details Name of appellant Address Postcode

Telephone number Mobile number Email address

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2  

Representative details Do you have a representative?

Yes

No

If Yes, please give your representative’s details below Please note: all correspondence including the hearing notification, will be sent to the representative, not directly to you. If a representative stops acting for you, please notify the Tribunal straightaway.

Name of representative Firm/Organisation Address

Postcode Telephone number Mobile number Email address Reference number (if any)

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Form T98 Notice of Appeal

 3

About the decision or notice you are appealing against The decision notice reference number: Name and address of the regulator issuing the decision or notice Name Address

Postcode Date on the decision or notice you are appealing against Date you received the decision or notice you are appealing against You must attach a copy of the decision notice with this form Please tick the box to show that it is attached:

4

Time limit for making an appeal/application/reference An appellant is required to lodge an appeal with the Tribunal usually within 28 calendar days (14 days for trainee driving instructors, 90 days for REACH appeals) of the date on which notice of the act or decision to which the proceedings relate was sent to the appellant (see explanatory notes). The Tribunal may accept a notice of appeal outside this time limit under certain circumstances. For the Tribunal to do this, you should request an extension of time and provide reasons why it is late. The Tribunal will then consider whether to grant you the extra time you have asked for. Please tick this box if you would like the Tribunal to consider an out of time appeal. Please give reasons what you would like the Tribunal to take into account when considering whether to accept your out of time appeal.

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Form T98 Notice of Appeal

 5a

Grounds of appeal or application

Please give your grounds of appeal or application. Your grounds should explain why you think decision, act or notice (or failure to decide or act) is wrong or why you are making your application. You may find it helpful to refer to individual paragraphs in the decision or notice you disagree with and explain why you disagree with them. If required, please use an extra sheet of paper.

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Form T98 Notice of Appeal

 5b

Supporting document

Please list any documents that you wish the Tribunal to consider in support of your appeal or your application. You may use an extra sheet of paper if required. Please attach the documents and tick the box to indicate that they have been attached.

6

Outcome of appeal or application or application Please tell us what outcome you are seeking from your appeal or application

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Form T98 Notice of Appeal

 7

Type of hearing and venue The Tribunal makes its decision after reading all the papers in a case. Please indicate by ticking the appropriate box whether you wish your case to be considered on the papers only or after a hearing where parties can put their arguments in person. Please see the explanatory notes before making your selection. Paper decision

Decision after a hearing

The Tribunal holds hearings in the following areas. Please indicate your preference by ticking the appropriate box. Please see the guidance notes for more information.

England South West North West London and South East North East Midlands Northern Ireland Scotland Wales The Tribunal will decide where any hearing takes place. If you have good reason for the hearing to be in a particular town or city, please write in the box below and explain why.

Please also give an estimate of how long you think the hearing might last.

Parties will be informed in writing by post or email as soon as the hearing date has been set.

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Form T98 Notice of Appeal

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About your requirements Please state if you, your representative or any witnesses have a disability or other special needs that you need to bring to the attention of the Tribunal in order to help at your hearing or during the appeal process. Please also state if an interpreter is required and, if so, please state the language needed.

9

Declaration Signature of person appealing or their representative

Date

We can help if you need information in a different format (e.g. Braille, large print). We can also provide this form in Welsh if required. If you need any of these services please contact the Tribunal. Please send this form to:



Email:

[email protected]

Post:

General Regulatory Chamber HM Courts and Tribunals Service PO Box 9300 Leicester LE1 8DJ

TheMinistryofJusticeandHMCourtsandTribunalsServiceprocessespersonalinformationaboutyouinthecontextof tribunalproceedings. Fordetailsofthestandardswefollowwhenprocessingyourdata,pleasevisitthefollowingaddress https://www.gov.uk/government/organisations/hmͲcourtsͲandͲtribunalsͲservice/about/personalͲinformationͲcharter Toreceiveapapercopyofthisprivacynotice,pleasecall03001231024/Textphone1800103001231024. IfcallingfromScotland,pleasecall03007906234Textphone1800103007906234. T98 Notice of appeal (05.19)

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Appendix N Form AF15(a)

447

Form AF15(a)

CERTIFICATE DISPUTE FORM (AF15(a)) Dispute reference

(Office Use Only;- Service Request Number)

Customer reference number Please complete the form(s) in Capital letters and black ink More information is available on our appeals and disputes web page Applicant details Full name Date of birth

Postcode

Disclosure number Contact telephone number Interested party If you are NOT the applicant you must complete the section below and provide full details of what your interest is in the certificate. (e.g. countersignatory; employer; licensing authority; If other please specify, but NOT a solicitor) Full name Organisation name Contact details Please specify interest Have you discussed the reason(s) for the dispute with the Yes No applicant Please complete Section A overleaf and/or Section B as appropriate in Capital letters and black ink. Section A. Dispute relating to personal details Please complete this section by; x Placing a cross (x) in the relevant box below at A1) to show the application details not correct on the DBS certificate, and x Clearly write the correct application details in the adjacent column at A2) using capital letters.

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FORM AF15(a)

Form AF15(a)

A1) Details not correct

A2) Correct application details

Surname: Forename (s): Other names: Date of birth: Place of birth: Gender: Address: Postcode: Position applied for Name of employer: Level of disclosure: If the dispute relates solely to personal details on the DBS certificate, please print, sign and date the section below and return to DBS, Disputes, Customer Services, FREEPOST RTHU-TRJY-KSHY, PO Box 165, L69 3JD. If the dispute also relates to criminal record information disclosed on the certificate please continue to complete the form from Section B. Signature

Date

If you are under 18 years of age your parent or legal guardian must also sign the form below. Full name parent/guardian Signature parent/guardian

Date

If you have any questions about completing the form(s) please phone us on 0151 676 1953 Dispute reference

(Office Use Only;- Service Request Number)

Customer reference number

FORM AF15(a)

449

Form AF15(a)

Section B. Dispute relating to criminal record information disclosed Please complete this section by; x Placing a cross (x) in the relevant box at B1) to B5) to show which criminal record information disclosed on the certificate is inaccurate Police National Computer (PNC) records B1) Police records of convictions, cautions, reprimands and warnings B1a) All of the information does not relate to the applicant If you place a cross (x) in this box you should complete the Fingerprint Consent Form AF14 and include 3 passport sized photographs B1b) Some of the information does not relate to the applicant If you place a cross (x) in this box you should complete the Fingerprint Consent Form AF14 and include 3 passport sized photographs B1c) Some or all of the information is not accurate B1d) Some information is missing At B6) Reasons for Dispute Please use capital letters and black ink and please include full details of any offences, including dates, which do not belong to you; are not accurate; or are missing. If any offences are missing please state the court(s) and dates attended and any evidence you have to support the dispute if you have it. Independent Safeguarding Authority records B2) Information from the list held under Section 142 of the Education Act 2002 B3) DBS Children’s Barred List information B4) DBS Adults Barred List Information Police force locally held records B5) Other relevant information disclosed at the Chief Police Officer(s) discretion B5a) Some or all of the information is not accurate as it is factually incorrect B5b) Some or all of the information is not relevant to the position or workforce B5c) Some or all of the information ought not to be disclosed If you have placed a cross (x) against box B5b) and/or B5c) above, the dispute will follow the Independent Monitor review process unless you state otherwise in B6) Reasons for Dispute and provide reasons why not accurate/relevant or both If you need to provide further detail please use A4 size paper and ensure you quote your full name, date of birth and customer reference number on any additional correspondence.

FORM AF15(a)

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Form AF15(a)

Dispute reference

(Office Use Only;- Service Request Number)

Customer reference number B6: Reasons for dispute

Telephone number(s) Land line and/or mobile Signature

Date

If you are under 18 years of age your parent or legal guardian must also sign the form below. Full name parent/guardian Signature Date parent/guardian Please print, sign and return the completed form(s) to DBS, Disputes, Customer Services, FREEPOST RTHU-TRJY-KSHY, PO Box 165, L69 3JD. If you have any questions about completing the form(s) please phone us on 0151 676 1953.

FORM AF15(a)

451

Appendix O Precedent Letter for Application to Expunge Caution

453

Precedent Letter for Application to Expunge Caution

ACRO PO Box 481 Fareham Hampshire PO14 9FS

Dear Sirs RE: Our client Address: Your ref:

APPLICATION TO EXPUNGE POLICE CAUTION ADMINISTERED AT [XX] POLICE STATION ON [DATE]

We represent the above-named person and are writing to make representations that the [Adult Caution / Conditional Caution / Youth Caution – delete as appropriate] administered against them on [DATE] should be expunged because it was administered unlawfully. By way of background, a caution for [OFFENCE] was administered against our client on [DATE] at [XX] police station. In order to assist you in considering whether to expunge the caution we enclose a copy of the [DOCUMENTS PROVIDED, IF ANY]. The law You will be aware that at the time our client was cautioned that the relevant guidance document the police had regard to was the Ministry of Justice guidance [Simple Cautions for Adult Offenders / Code of Practice for Adult Conditional Cautions / Youth Cautions Guidance – delete as appropriate]. As you are aware, a refusal to quash/expunge/withdraw a caution is capable of being judicially reviewed. The principles that the court will apply in deciding cases such as these were helpfully summarised by Maddison J in the case of Lee V Chief Constable of Essex Police [2012] EWHC 283 (Admin) as follows at paras 14 and 15:14. I turn to the law governing applications for judicial review of this kind. The law is to be derived principally from two authorities: R v Commissioner of the Police for the Metropolis ex p P, The Times, 24 May 1999, Vol 160 JP 367 and R v Metropolitan Police Commissioner ex p Thompson [1997] 1 WLR 1519. 15.

The law in my view can be shortly stated. The court has jurisdiction to quash a caution but only in an exceptional case where a caution is administered in clear breach of the guidelines set out in the relevant Home Office circular. However police officers responsible for applying the circular must enjoy a wide margin of appreciation of the

454

Precedent Letter for Application to Expunge Caution

nature of the case and whether the pre-conditions for a caution are satisfied. Even if there has been a clear breach of the guidelines, the court retains a discretion not to interfere. In each of these two cases the caution concerned was in fact quashed, in the former because the person concerned had been cautioned even though there was no evidence of his guilt and he had not made a clear and reliable confession of the offence concerned; and in the latter because the person concerned had been wrongly induced to accept a caution. Plainly each of these cases fell into the exceptional category to which I have referred. The police’s evidence [Summarise all the evidence in your possession] Our client’s account [Give your client’s detailed account of the incident] Representations [State your grounds for arguing that the caution was unlawfully administered e.g. no crime committed or no clear and reliable admission] If you have any queries, please do not hesitate to contact [XX] Thanking you in advance for your assistance in relation to this matter. Yours faithfully

455

Index [all references are to paragraph number]

A Anonymity court’s inherent jurisdiction, operation of, 10.37, 10.38 generally, 10.01, 10.02 investigation anonymity order see Investigation anonymity order open justice principle see Open justice principle public excluded from hearings see Private hearing reporting restrictions as to witness’s identity, 10.36 special measures, 10.39–10.43 suspects and defendants— anonymity after charge— European Convention on Human Rights, Article 8, and, 10.70 generally, 10.56, 10.57 Human Rights Act 1998, pursuant to, 10.67–10.69 lifting of anonymity, 10.62 publication, in, 10.61 sexual offences, 10.63–10.68 young person ‘concerned’ in proceedings, 10.60 youth court, proceedings in, 10.58– 10.62 automatic, where, 10.46 generally, 10.44 statutory anonymity for suspects— generally, 10.45, 10.46 limited circumstances for, 10.45 sexual assault, victims of, 10.53 teachers, for, 10.47–10.52 under 18 years of age, where, 10.46, 10.54, 10.55 victims and witnesses in criminal proceedings— automatic protection— Female Genital Mutilation Act 2003, under, 10.22 generally, 10.12 sexual offences, complainants of, 10.14–10.21 youth court proceedings, 10.23

Anonymity – contd victims and witnesses in criminal proceedings – contd discretionary protection— generally, 10.13 witness anonymity order see Witness anonymity order witness anonymity order see Witness anonymity order Arrest private law principles, and see Privacy (arrests and police investigations) Authorised Professional Practice collecting of information, 1.41 common processes, 1.43 custody images, deletion of, 4.05–4.11 evaluation of information, 1.42 generally, 1.40 Police National Database, and, 2.21, 2.23 recording of information, 1.41 retention, review and disposal of information— exception reviews, 1.55 generally, 1.44–1.47 initial review, 1.48 National Retention Assessment Criteria, use of, 1.45–1.47 scheduled reviews— generally, 1.50 miscellaneous matters, 1.54 other offences, 1.53 other sexual, violent or serious offences, 1.52 public protection matters, 1.51 triggered reviews, 1.49 B Biometric information meaning, 4.15 deletion— generally, 4.15, 4.16 National Police Chiefs’ Council guidance on see Deletion of Data (National Police Chiefs’ Council guidance on)

457

Index Biometric information – contd retention of, 4.16 section 63D material, 4.15 C Caution see Police caution Child Sex Offender Disclosure Scheme application— categorising, 6.45, 6.46, 6.47 checklist of questions, 6.38 confidentiality, 6.55 decision as to see disclosure below face-to-face meeting— action following, 6.44, 6.45 attendance at, 6.41 procedure at, 6.42, 6.43 purpose, 6.41 risk assessment following, 6.44 initial contact— action at, 6.37, 6.38 action following, 6.39–6.43 face-to-face meeting see face-to-face meeting above method, 6.35 personal details, sharing of, 6.38 place of, 6.35 procedure, 6.35–6.38 representations, seeking, 6.55, 6.56 right to make, 6.04, 6.36 challenging decision under, 6.58, 6.59 confidentiality, 6.55–6.57 disclosure— challenging decision as to, 6.58, 6.59 confidentiality, 6.57 decision not to disclose, 6.48 decision to disclose, 6.48–6.54 Guidance, 6.53 matters to consider before decision, 6.49, 6.50 method of informing applicants, 6.51 multi-agency forum making decision, 6.48 subject of application, involvement of, 6.53 time for making, 6.54 to whom made, 6.04, 6.52 ECHR Article 8, whether compatible with, 6.05, 6.59 generally, 6.01, 6.05, 6.33, 6.34 Government Guidance, 6.39, 6.53, 6.55, 6.56 matters for disclosure, 6.33, 6.36 presumption in favour of disclosure, 6.33 purpose, 6.04 representations, seeking, 6.55, 6.56

Child Sex Offender Disclosure Scheme – contd right to ask, 6.33 Sarah’s Law, 6.04 statutory provisions, application of, 6.05, 6.34 Clare’s Law see Domestic Violence Disclosure Scheme Code of Practice Criminal Procedure and Investigations Act 1996, as to see CPIA Code of Practice DBS Registered Persons, as to, 5.09 Management of Police Information 2005, on— custody images, deletion of, 4.12 deletion of information, 1.39 entry into force, 1.35 generally, 1.35–1.39 guidance see Authorised Professional Practice management etc of police information— meaning, 1.36 duties, 1.37 key principles, 1.37 responsibility for, 1.36 police purposes: meaning, 1.36 public protection, and, 1.39 purpose, 1.35 review of information, 1.38 statutory nature of, 1.35 Police National Computer, records entered into, 2.06 Police National Database, operation and use of, 2.20, 2.21 Confidentiality misuse of private information, and, 12.05 CPIA Code of Practice duties placed on investigator, 1.22 matters governed by, 1.22 retention of material— categories of material, 1.22 conviction, following, 1.24 minimum time-periods, 1.25 proceedings instituted, where, 1.23 Crime records removing— Home Office Counting Rules, 4.02– 4.04 see also Deletion of data Criminal Record Certificate see under Disclosure and Barring Service Custody images deletion see under Deletion of data

458

Index D Data protection see also Data Protection Act 2018 access to data see Subject Access Request below application of law, 12.17, 12.20 compensation for breach of rights, 12.29 complaint under 2018 Act, application to progress, 3.16, 3.17 compliance order under 2018 Act, application for, 3.18, 3.19, 12.29 damages, right to, 12.30 data controller— meaning, 12.17 social media platforms, 12.24 data subject— meaning, 3.01 rights, 12.22 defendants to action, 12.23, 12.24 deletion of personal information etc see Deletion of data generally, 3.01, 12.01–12.04, 12.16– 12.19 Hosting Defence, 12.24 Information Commissioner’s Office, complaint to, 12.31 journalistic purposes exemption— evidence etc needed for, 12.26 generally, 12.25–12.28 journalistic activities: meaning, 12.27 limits, breadth of, 12.28 statutory authority for, 12.25 legislation, 12.16, 12.20 offences and convictions data: meaning, 12.18, 12.19 online information, availability of, 12.02 personal data: meaning, 12.17 principles and rights, 12.21, 12.22 processed information: meaning, 12.17 remedies, 12.29–12.31 rights, 3.01 rules, application of, 12.20 social media platforms, 12.24 spent convictions, 13.23 Subject Access Request— meaning, 3.01 ACRO Criminal Records Office, via, 3.03 application form, use of, 3.03 applicable time period: meaning, 3.02 contents of material, sought, 3.05 controller’s duties, 3.02 documents required to make, 3.04 locally-held information, 3.03 making, 3.02–3.04

Data protection see also Data Protection Act 2018 – contd Subject Access Request – contd response to— application to progress a complaint, 3.16, 3.17 challenging adequacy of, 3.05–3.15 common failings, 3.05 compliance order, application for, 3.18, 3.19 failure to respond within one month, 3.07–3.09 incomplete or redacted disclosure, 3.10–3.15 Information Commissioner, complaint to, 3.06 review, request for, 3.14 solicitor’s need for signed authority, 3.04 statutory authority, 3.02 Data Protection Act 2018 access to personal data under see Data protection application, 1.12 competent authority— meaning, 1.12 law enforcement purposes: meaning, 1.12 processing of date by, 1.12 complaint under, application to progress, 3.16, 3.17 compliance order under, application for, 3.18, 3.19 controller— meaning, 1.13 duties— correction of data, 1.16 erasure of data, 1.17, 1.19 see also rights of data subjects below obligation on, 1.13, 1.14 qualifying significant decision, taking, 1.21 data subjects, rights of see rights of data subjects below entry into force, 1.11 European Directives, and, 1.11 generally, 1.11 obligations under, 1.13, 1.14 principles, applicable, 1.14 processor— meaning, 1.13 obligation on, 1.13, 1.14 restriction of processing: meaning, 1.18 rights of data subjects— automated decision-making, no subjection to, 1.20, 1.21 erasure or restriction, 1.17–1.19

459

Index Data Protection Act 2018 – contd rights of data subjects – contd generally, 1.15 human intervention, obtaining, 1.21 rectification, 1.16 Databases Domestic Extremism Database, case law as to, 4.39 Fingerprint Database see Fingerprint Database generally, 2.01 National DNA Database see National DNA Database Police National Computer see Police National Computer Police National Database see Police National Database Deletion of data basis for record deletion, 4.22 biometric information— generally, 4.15, 4.16 National Police Chiefs’ Council guidance on see National Police Chiefs’ Council guidance on below complaint to Information Commissioner, 4.30, 4.31 compliance order, application to court for, 4.32–4.34 court convictions, 4.19 custody images— applicant under or over 18, whether, 4.11, 4.12 application for deletion, procedure, 4.14 Authorised Professional Practice, under, 4.05–4.11 circumstances for requesting deletion, 4.06 Code of Practice, reference to, 4.12 discretion to retain image, 4.09, 4.13 first scheduled review, deletion at, 4.10 generally, 4.05–4.14 matters for police consideration, 4.11 no presumption, where, 4.08 National Retention Assessment Criteria, importance of, 4.09, 4.13 PACE, under, 4.05 policing purpose, retention for, 4.09 presumption in favour of deletion, 4.07, 4.11 recordable offence, in case of, 4.08 refusal to delete, 4.14 Data Protection Act 2018 remedy on refusal to delete, 4.35–4.39 Domestic Extremism Database, information on, 4.39

Deletion of data – contd generally, 4.01 grounds for, 4.21 Home Office Counting Rules, 4.02–4.04 judicial review on failure to delete, 4.35– 4.39 locally-held records— meaning, 4.24 application for deletion, 4.26–4.28 case law, 4.29 disclosure, 4.25 generally, 4.23–4.28 management, 4.24 National Police Chiefs’ Council guidance on— application to delete pursuant to, 4.17 basis for record deletion, 4.22 controllers, chief officers as, 4.19 discretion to delete records, 4.19 generally, 4.17–4.22 grounds for deletion, 4.21 purpose, 4.17 records covered by, 4.18 non-court disposals, 4.19 refusal to delete, remedies— case law, 4.38, 4.39 generally, 4.35–4.38 Disclosure and Barring Service barred lists— adults’ barred list, 5.32 appeals— case law, 5.36 error of law, 5.45 inclusion on barred list, 5.43 legal aid for, 5.48 mistake of fact or law, 5.47 procedure— by whom heard, 5.44 case law, 5.46 Form UT10, use of, 5.48 grounds for appeal, 5.44, 5.45 late appeal, 5.48 permission requirement, 5.44 time for lodging appeal, 5.48 review decision, against see under review of decision for inclusion on below automatic inclusion on, 5.33 challenge to inclusion on see appeals above children’s barred list, 5.32 creation of, 5.32 discretionary inclusion on, 5.33 ECHR Article 8, and, 5.45, 5.46 effect of inclusion on, 5.34

460

Index Disclosure and Barring Service – contd barred lists – contd irrational or unreasonable decision to place on, 5.45 regulated activity, and— barring of persons from engagement in, 5.32, 5.34 persons working with groups in, where, 5.33 review of decision for inclusion on— appeal against decision— certain statutory conditions met, where, 5.41 minimum barring period, after, 5.38 person not meeting test for regulated activity, where, 5.40 procedure see under appeals above statutory authority for, 5.39 certain statutory conditions met, where, 5.37 generally, 5.35 minimum barring period, after, 5.38 regulated activity, where role not meeting test for, 5.36 vulnerable adults, protection of, 5.32 Criminal Record Certificate— application for, 5.07 challenging accuracy of information disclosed, 5.17, 5.18 contents, 5.11–5.13 convictions and cautions eligible for disclosure, 5.15, 5.16 enhanced see enhanced certificate below exempted question: meaning, 5.08 filtering, 5.15, 5.16 issue of, 5.11 registered person— Code of Practice as to, 5.09 countersigning certificate, 5.07, 5.08 standard see standard certificate below types, 5.07, 5.10 enhanced certificate— challenging accuracy of information disclosed, 5.17, 5.18 challenging disclosure of information in, 5.19–5.21 challenging disclosure of non-conviction information in— application to independent monitor, by, 5.31 case law, 5.26, 5.27 generally, 5.22 matters for consideration, 5.23, 5.25 Quality Assurance Framework, 5.24, 5.25

Disclosure and Barring Service – contd enhanced certificate – contd challenging disclosure of non-conviction information in – contd representations, right to make, 5.28– 5.30 Statutory Disclosure Guidance, 5.23 contents, 5.13 convictions and cautions eligible for disclosure, 5.15, 5.16 information requested prior to issue, 5.14 issue, 5.13 establishment, 5.07 Safeguarding Vulnerable Groups Act 2006, barring decisions under— barred lists see barred lists above generally, 5.32–5.35 vulnerable adults, protection of, 5.32 standard certificate— challenging accuracy of information disclosed, 5.17, 5.18 challenging disclosure of information in, 5.19–5.21 contents, 5.12 convictions and cautions eligible for disclosure, 5.15, 5.16 issue, 5.12 Disclosure of criminal records ACRO police certificate— application for, 5.49 contents— challenging, 5.54 generally, 5.50 inaccuracies, dealing with, 5.54 generally, 5.04 issue, 5.49 relevant immigration authorities, 5.49 Step-Down Model, use of— generally, 5.50 matters to be listed on certificate,  5.53 ‘No Live Trace’, use of phrase, 5.53 ‘No Trace’, use of phrase, 5.53 periods, 5.51, 5.52 re-offending within clear period, effect. 5.51 requirements in, 5.51 case law, 5.03 Disclosure and Barring Service see Disclosure and Barring Service ECHR Article 8, and, 5.03 filtering scheme, 5.03 generally, 5.01–5.04 immigration context, in, 5.04 legislation as to, 5.02

461

Index Disclosure of criminal records – contd Rehabilitation of Offenders Act 1974, under, 5.05, 5.06 self-disclosure, 5.05, 5.06 spent convictions, 5.05, 5.06 DNA retention, case law on, 1.08 Domestic Extremism Database case law, 4.39 Domestic Violence Disclosure Scheme challenging decision under, 6.32 circumstances for disclosure, 6.09 Clare’s Law, 6.03 confidentiality, 6.30, 6.31 disclosure, persons entitled to, 6.07 ECHR Article 8, and, 6.05 generally, 6.01, 6.05, 6.06, 6.07 Home Office Guidance, creation by, 6.06 introduction, 6.03 judicial review of decision under, 6.32 Multi-agency Risk Assessment Conference, involvement of, 6.22–6.25 offences triggering disclosure, 6.09 operation, 6.08, 6.09 procedures for disclosure, 6.08 Public Protection Unit, reference to, 6.15 purpose, 6.03, 6.07 right to ask— ‘a concern’, matter classified as, 6.18, 6.19, 6.20 completion of process, 6.26–6.28 generally, 6.08 initial contact— meaning, 6.11 action following, 6.13–6.18 checks following, 6.13 confidentiality, 6.17 crime alleged, where, 6.14 DBS request, whether, 6.14 evidence to be presented by applicant, 6.16 face-to-face meeting, 6.15, 6.16 freedom of information request, whether, 6.14 information to be obtained during, 6.12 no disclosure given during, 6.12 place, means and timing, 6.11 Public Protection Unit, reference to, 6.15 risk assessment, 6.13, 6.18 safeguarding action, taking, 6.14 safety of person making request, 6.11 Subject Access Request, whether, 6.14 subject of disclosure, informing, 6.17

Domestic Violence Disclosure Scheme – contd right to ask – contd making application for disclosure, 6.10 ‘no concern’, matter classified as, 6.18, 6.21 referral to multi-agency forum, 6.22– 6.25 right to know— generally, 6.08 triggering, 6.29 statistics, 6.02 statutory provisions, application of, 6.05 E Erasure application for, procedure and process— procedure, 14.14 refusal to delist, action following, 14.14 search engine see search engine below right to— bloggers, 14.08 burden of proof, 14.04 case law, search engines, 14.13, 14.17 EU Regulation, 14.03 exemptions, 14.06 generally, 1.17, 1.19, 14.01, 14.02 legislation, applicable, 14.03, 14.06, 14.09 media organisations, 14.08 not an absolute right, 14.05 persons against whom right directed, 14.07 police etc as publisher, 14.09 primary publishers, 14.07, 14.08, 14.09 reasons for erasure, 14.03 refusal to erase, grounds for, 14.05 right to object, and, 14.03 search engines, 14.07, 14.10–14.13 social media platforms, 14.26 tort of misuse of private information, and, 14.02 Twitter, 14.08 search engine— assessment of whether results should be delisted, 14.17 Axel Springer criteria, 14.19 delisting criteria, 14.18–14.21 journalistic purposes exemption, 14.22– 14.25 right to erasure, 14.07, 14.10–14.13 scope of delisting, 14.15, 14.16 European Convention on Human Rights Article 8— anonymity of suspected murderer, 10.70 Axel Springer criteria, and, 12.10

462

Index European Convention on Human Rights – contd Article 8 – contd balancing act, need for, 1.08, 12.09, 12.10 barred lists, and, 5.45, 5.46 case law, 1.08, 1.09 child, protection of identity in murder trial, 10.70 Child Sex Offender Disclosure Scheme, and, 6.05, 6.59 criminal trials and other court proceedings, privacy in, 13.14 disclosure interfering with, 1.09, 5.03 DNA samples, retention of, 2.14 Domestic Extremism Database, information on, 4.39 domestic law incorporation into, 1.08 Domestic Violence Disclosure Scheme, and, 6.05 freedom of expression, and, 12.09, 12.10 misuse of private information, and, 12.05 national security, 12.07 personal data, and, 1.07 police caution, and, 8.15, 8.16, 9.07, 9.19 provisions, 1.05 public authority— acting incompatibly with rights under, 1.06 disclosure, planning to make, 1.09 qualified nature of right, 1.06 spent convictions, and, 13.22 Supreme Court ruling on, 1.07 Article 10— Axel Springer criteria, 12.10 balancing exercise with Article 8, 12.06, 12.09 privacy claim, as defence to, 12.07 spent convictions, 13.23 F Family life right to respect for see European Convention on Human Rights (Article 8) Fingerprint Database capabilities, 2.15 deletion of records— application for, 2.17 locally held records, 4.23–4.29 National Police Chiefs’ Council guidance, 4.17–4.22 see also Deletion of data destruction of fingerprints etc, 2.16 ‘Livescan’, 2.15

Fingerprint Database – contd management, 2.15 PACE, provisions in, 2.16 retention of fingerprints etc— case law on, 1.08 time for, 2.16 H Home Office Counting Rules binding nature of, 1.26 categories of crime under, 1.27 Force Crime Registrar, appointment of, 1.28 generally, 1.26 National Crime Recording Standard, and, 1.29 Offence Classification Index, 1.30 outcome types, assignment of, 1.30 Schools Protocol, and see Schools Protocol Homosexuality historic convictions, disregarding see under Protection of Freedoms Act 2012 I IDENT1 see Fingerprint Database Immigration authorities ACRO police certificates, and see under Disclosure of criminal records Information Commissioner’s Office complaint to, 3.06, 4.30, 4.31, 12.31 supervisory jurisdiction, 3.06 Investigation anonymity order application for, 10.33 grant of, circumstances justifying, 10.34 investigations meriting, 10.33 purpose, 10.33 statutory authority, 10.33 witness anonymity order, additional entitlement to, 10.35 J Judicial review alternative remedies first, need to pursue, 9.03, 9.04 application for see procedure below burden of proof, 9.36 caution, of refusal to expunge— generally, 8.27, 9.03, 9.04, 9.07 remedy sought, 9.37 claim for— acknowledgment of service, 9.26 arguability threshold, subject to, 9.28 bundle of documents, service, 9.24 certificate of service, filing, 9.25

463

Index Judicial review – contd claim for – contd court at which heard, 9.36 duty of candour, 9.24 filing claim, 9.22, 9.23 form, 9.21 forum for hearing, 9.21 grounds of , service, 9.24 guidance for completing form, 9.21 issue, 9.23 letter before claim see letter before claim below no formal right of reply, 9.27 place for filing claim, 9.22 reply, filing and service, 9.27 sealed claim form, provision of, 9.23 service, 9.24, 9.25 substantive stage, 9.36–9.38 see also procedure below costs— acknowledgment of service, for preparation of, 9.34 case law, 9.32 conclusion of proceedings, at, 9.35 exceptional circumstances justifying,  9.33 generally, 9.32–9.35 held over, where, 9.35 recovery, limits on, 9.32 refusal of permission to proceed, on, 9.32, 9.33 successful claim, following, 9.38 data, on failure to delete, 4.35–4.39 decisions most likely to lead to, 9.02 Domestic Violence Disclosure Scheme, of decision under, 6.32 duty of candour, 9.24 Enhanced Criminal Record Certificate, in respect of, 9.03 generally, 9.01, 9.02 grounds for, 9.15–9.20 letter before claim— contents, 9.11, 9.12, 9.13 failure to reply within prescribed period, 9.14 generally, 9.10–9.12 purpose, 9.10 reply date within, need for, 9.12 limitation period— commencement of, 9.04 continuing breaches, in case of, 9.07 filing claim, for, 9.23 Pre-Action Protocol, and, 9.08 need to exhaust other avenues, 9.03 permission stage, 9.28–9.31

Judicial review – contd Pre-Action Protocol— aims, 9.09 compliance with, 9.08 key requirement, 9.10 letter before claim see letter before claim above limitation period, and, 9.08 procedure— burden of proof, 9.36 claim see claim for above costs see costs above duty of candour, 9.24 evidence, provision of, 9.36 forum for hearing claim, 9.21 generally, 9.05 letter before claim see letter before claim above limitation period see limitation period above permission stage, 9.28–9.31 Pre-Action Protocol see Pre-Action Protocol above substantive stage, 9.36–9.38 prompt action, need to take, 9.06 quashing order, 9.37 refusal of relief, 9.37 remedy of last resort, as, 9.03 remedy sought, 9.37 time limit, 9.05–9.07 M Management of Police Information 2005 Code of Practice see under Code of Practice N National Crime Recording Standard general principles, 1.29 National DNA Database Anti-Social Behaviour Crime and Policing Act 2014, and, 2.11 Case law, 2.14 contents, 2.09 deletion of records— application for, 2.13 locally held records, 4.23–4.29 National Police Chiefs’ Council guidance, 4.17–4.22 see also Deletion of data destruction of samples, 2.11, 2.12 establishment, 2.09 Forensic Service Provider, role of, 2.10 Home Office responsibility for, 2.09 indefinite retention, 2.12, 2.14

464

Index National DNA Database – contd NPCC Record Deletion Process, 2.13 PACE, powers under, 2.10, 2.11 Protection of Freedoms Act 2012, and,  2.11 retention of samples— case law, 2.14 drink-driving matter, after, 2.14 ECHR Article 8, 2.14 indefinitely, 2.12, 2.14 time for, 2.12 Strategy Board, and, 2.09 O Open justice principle anonymity see Anonymity consequences, 10.03 constitutional importance, 10.06 departure from, limits on, 10.85 exceptions— judicial analysis, 10.07 justification for, 10.07 see also Anonymity generally, 10.01, 10.02, 10.08–10.11 importance, 10.03, 10.04, 10.06 judicial analysis of concept, 10.03, 10.05– 10.07 Judicial College Guidelines, 10.04 private hearing see Private hearing P Personal data access to see Data protection deletion see Deletion of data European Court ruling on, 1.07 protection of, importance, 1.07 retention and storage, 1.07, 4.19 Supreme Court ruling on, 1.07 Police and Criminal Evidence Act 1984 cautions under, 8.08 generally, 1.10 Police caution application to expunge— ACRO Criminal Records Office, submission to, 8.05 cases over six years old, 8.18 cases pre-dating current MOJ Guidance, 8.19 documents to accompany, 8.05 evidence, need for, 8.17, 8.18 generally, 8.01, 8.04, 8.05 grounds for making, 8.22 Home Office Circular, relevance of guidance in, 8.19 information to be obtained prior to, 8.17

Police caution – contd application to expunge – contd letter accompanying, date for response in, 8.23 NPCC procedure, 8.20–8.23 NPCC Record Deletion Process form, 8.21 NPCC Record Deletion Process Guidance, 8.20 pre-application matters, 8.17 pre-conditions see under expunging below prescribed form, use of, 8.05 questions to be considered, 8.19 representations, accompanying letter of, 8.21 response to, time for, 8.23 Subject Access Request, and, 8.17 case law, 8.16 child abduction for, 8.16 conditional, 8.03, 8.06 court’s power to quash, 8.25 disclosure, 8.03 European Convention on Human Rights, Article 8, and, 8.15, 8.16, 9.07, 9.19 expunging— agreement to expunge, action on, 8.24 application see application to expunge above case law, 8.16 child abduction, where caution for,  8.16 judicial review of refusal to expunge, 8.27, 9.03 power to expunge, 8.05 pre-conditions— deviations from, as basis for expunging, 8.14 generally, 8.06 guidance, 8.06 necessary, 8.07–8.14 refusal to expunge, challenging, 8.25– 8.27 right to privacy, and, 8.15, 8.16 unlawfully administered, where, 8.15 generally, 8.02 Gravity Factors Matrix, consideration of, 8.09 implications, 8.02 incorrect disposal, as, 8.22 judicial review of refusal to expunge, 8.27, 9.03, 9.04 Police National Computer, deletion from, 8.24 privacy, whether interfering with, 8.15, 8.16

465

Index Police caution – contd simple— clear and reliable admission, need for, 8.08, 8.08 compliance with PACE, in, 8.08 consensual nature of, 8.07, 8.10 factors to be considered before offering, 8.13 Gravity Factors Matrix, consideration of, 8.09 guidance, 8.12, 8.13, 8.14 implications, need to explain, 8.11, 8.12 nature of, 8.03 necessary pre-conditions for, 8.07–8.14 public interest, whether in, 8.07, 8.09, 8.22 refusal to accept, 8.10 sufficiency of evidence, need for, 8.08, 8.09 spent, where, 8.03 unlawfully administered, where, 8.15 wide margin of appreciation, existence of, 8.25, 8.26 Police investigation private law principles, and see Privacy (arrests and police investigations) Police National Computer access to information on see Data protection (Subject Access Request) applications, 2.04 arrests, recording duties following, 2.05 A/S number, creation of, 2.07 Code of Practice, 2.06 deletion of records— application process, 4.20 caution, 8.24 generally, 2.08 grounds for, 4.21 locally held records, 4.23–4.29 National Police Chiefs’ Council guidance, 4.17–4.22 see also Deletion of data generally, 2.02 ‘Names’ application, 2.04 nominals, data on, 2.04 report, creation of, 2.07 retention of records on, 2.08 statutory authority for, 2.03 Police National Database Authorised Professional Practice, compliance with, 2.21, 2.23 Bichard Inquiry, following, 2.18 Code of Practice, 2.20, 2.21 contents, 2.19 creation, 2.18

Police National Database – contd disposal of information on, 2.23 management of information on, 2.21 nature of, 2.19 POLE, 2.19 police force policies as to, 2.22 policing purposes, use for, 2.20 review, retention and disposal of information on, 2.23 searchable elements of, 2.19 Sussex Police policy, 2.22 Police records meaning, 1.02 categories, 1.03 law governing, 1.04 management: meaning, 1.01 Privacy arrests and police investigations— balancing exercise, 13.06 case law, 13.02, 13.03, 13.06, 13.07 College of Policing guidance, 13.05 Data Protection Act 2018, Sch1 condition, 13.09 data protection grounds, publication challenged on, 13.09 examples of court’s approach, 13.07 generally, 13.01, 13.02 journalistic purposes exemption, 13.09 Leveson Report, 13.05 matters for court’s consideration, 13.06 Offences and Convictions Data, effect, 13.09 rape case, 13.04 reasonable expectation of privacy, 13.03 criminal trials and other court proceedings— case law, 13.10, 13.15 data controller’s defence, 13.12 data manifestly made public, where, 13.12, 13.13 ECHR Article 8, and, 13.14 generally, 13.10 journalistic purposes exemption, 13.12 justifiable publication, 13.12 limits on bringing claim, 13.11 no reasonable expectation of privacy, 13.15 open justice principle, and, 13.12, 13.15 publishing court information, effect, 13.14 freedom of expression, and, 12.07 generally, 12.01–12.04, 13.01 misuse of private information see privacy claim below online information, availability of, 12.02

466

Index Privacy – contd privacy claim— balancing exercise, 12.09, 12.10 damages, 12.14 defendants, 12.07, 12.11–12.13 elements of, 12.06 freedom of expression, and, 12.07 generally, 12.05–12.07 Hosting Defence, 12.12, 12.13 injunction, 12.13, 12.14 limitation period, 12.15 origins, 12.05 reasonable expectation of privacy, 12.08 remedies, 12.14 reputational harm, 12.05 safe harbour defences, 12.12 social media platform, and, 12.12 right to respect for private life see European Convention on Human Rights (Article 8) spent convictions— balancing exercise, 13.22 case law, 13.21 data protection, 13.23 defence to disclosure, 13.18 disclosure by third parties, 13.18 ECHR Article 8 rights, and, 13.22 factors for court’s consideration, 13.22 freedom of expression, and, 13.23 generally, 13.20 manslaughter case, 13.21 reasonable expectation of privacy, 13.21, 13.22 right to rehabilitation, 13.21 see also Spent conviction Private hearing application to exclude public, 10.73 assisting offender, hearing relating to, 10.79–10.81 common law powers to exclude public, 10.83–10.85 Crown Court powers, 10.84 generally, 10.71–10.73 interests of justice, in, 10.84 national security, in interests of, 10.82, 10.84 obscenity trial, 10.83 Official Secrets Acts, offences contrary to, 10.82 part of trial, for, 10.85 power to exclude public, 10.72 vulnerable witnesses, proceedings involving, 10.78 young people, proceedings involving, 10.77, 10.78 youth court hearings, 10.74–10.76

Private life right to respect for see European Convention on Human Rights (Article 8) Protection of Freedoms Act 2012 homosexual activity, disregarding historic convictions etc— appeal against refusal to disregard, 7.20– 7.23 application— contents, 7.10–7.12 determining, Secretary of State’s procedure, 7.13, 7.14 matters covered by, 7.03, 7.04 persons making, 7.09 procedure for making, 7.09–7.12 representations, 7.11, 7.12 requirements, 7.10 statutory conditions to be met, 7.05– 7.08 convictions not to be disregarded, 7.06, 7.07 effect of conviction etc being disregarded, 7.15–7.19 generally, 7.01, 7.02 notice requirement, 7.08 statutory conditions to be met— Condition A, 7.05–7.07 Condition B, 7.08 Public exclusion from hearing see Private hearing R Reporting restrictions automatic restrictions in criminal proceedings— applicable cases, 11.07 breach, offence, 11.09 contempt of court, and, 11.08 dismissal hearing, 11.20, 11.21 female genital mutilation, 11.10 generally, 11.06–11.09 magistrates’ court, allocation or sending proceedings in, 11.22 preparatory hearing, 11.16–11.19 pre-trial hearing, 11.14, 11.15 prosecution appeals, 11.23 publication impeding course of justice, 11.08 sexual offences, victims of, 11.10, 11.11 young person, involvement of, 11.12 convictions and investigations, as to, 11.55 court’s power to make, 11.04 CPR 2015, Part 6, 11.04

467

Index Reporting restrictions – contd discretionary restrictions in criminal proceedings— adult witness, as to, 11.45–11.47 appeal against, 11.52 application for, 11.26 burden of proof, 11.25 CPR 2015, r 6.4, 11.26 derogatory remarks made in mitigation, postponement of reporting of, 11.49– 11.51 generally, 11.24–11.28 key restrictions, list of, 11.28 postponement of reporting, 11.29– 11.31 procedure for grant of, 11.26 re-trial, matters affecting, 11.48 test for grant of, 11.25, 11.26 under-18s, prevention of identification of, 11.35–11.39 variation or lifting of, application for, 11.27 withheld matters, prevention of reporting of, 11.32–11.34 young people, lifelong restriction as to, 11.40–11.44 generally, 11.01–11.05 judicial analysis, 11.02, 11.03 open justice principle as starting point, 11.02 special measures, 11.53, 11.54 witness’s identity, as to, 10.36 Right to be forgotten see Erasure (right to) S Sarah’s Law see Child Sex Offender Disclosure Scheme Schools Protocol crimes governed by, 1.31 generally, 1.31 nature and seriousness of incident, consideration of, 1.32 normal school procedures, incident dealt with under, 1.33 recording duties, 1.34 serious incidents, list of, 1.32

Spent conviction defence to disclosure, 13.18 disclosure by third parties, 13.18 effect, 13.17 generally, 13.16–13.19 rehabilitated person: meaning, 13.16 rehabilitation period— meaning, 13.16 treatment of person following, 13.17 right to privacy see under Privacy statutory authority, 13.16 Subject Access Request data protection see under Data protection police caution, on application to expunge, 8.17 V Victim anonymity in criminal proceedings see under Anonymity W Witness anonymity in criminal proceedings— order see Investigation anonymity order; Witness anonymity order see under Anonymity reporting restrictions as to identity of, 10.36 vulnerable, private hearing where proceedings involving, 10.78 Witness anonymity order application for— contents, 10.29 identity of witness, prosecutor’s right to know, 10.26 matters court will have regard to, 10.28 persons able to apply, 10.25 statutory authority, 10.29 witness statement accompanying, 10.30 breach, 10.32 conditions for making, 10.27 identity of witness, prosecutor’s right to know, 10.26 measures involved in, 10.24 statutory authority, 10.24 where made, 10.31

468