Saturday Hassan and Human Rights

The case of Saturday Hassan, widely reported in the Daily Telegraph, Daily Main and on BBC Radio 4 Today on 21 December 2012, highlights the confusion that still exists about the interaction between the Data Protection Act 1998, the Freedom of Information Act 2000 and, indirectly, the Human Rights Act 1998.

Saturday Hussan is serving a life sentence for the murder of Darren Deslandes – he was shot dead on New Year’s Eve 2009. Darren’s parents, Wintworth and Lurline Deslandes, want the Home Office to disclose Hussan’s immigration status, so that it can be confirmed that if he is an illegal immigrant or foreign national, he will be deported when he is finally released from jail. It is reported that the Home Office have refused the request, on the grounds of the protection of Hussan’s right to privacy (under Article 8 of the European Convention of Human Rights, incorporated into UK law by the Human Rights Act 1998).

This is an inadequate reason, without further explanation from the Home Office. It may also be wrong at law, but the relevant law is complex. I set out below one way in which the information could be lawfully disclosed, but there are others that would need careful analysis of all the relevant facts.

There are various offences related to immigration under, for example, the Immigration Act 1971. It can therefore be legitimately argued that information concerning Hussan’s immigration status is sensitive personal data under the Data Protection Act 1998, for which higher level of safeguards apply. However, sensitive personal data can be processed for a number of lawful reasons, including for the administration of justice or for the exercise of any functions of a Minister of the Crown or government department. Its disclosure, if for these purposes, would therefore not be a breach of the data protection principles, and so would be permitted under the Freedom of Information Act 2000.

What is covered by the “administration of justice” purposes in the Data Protection Act 1998 has not been judicially determined, but in other cases that have reached the European Court of Human Rights (ECHR) in Strasburg, it has been made clear that the ECHR would consider whether any interference to a citizen’s Article 8 right to privacy was justified. In the terms set out in S and Marper v The United Kingdom [2008] ECHR 30562/04 (a case involving retention of DNA records by the police), the ECHR said:

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”. While it is for the national authorities to make the initial assessment in all these respects, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention (see Coster v. the United Kingdom [GC], no. 24876/94, § 104, 18 January 2001, with further references). (paragraph 101)

It is therefore arguable that the Home Office could decide that the Deslandes and other similar indirect victims of crime do have a pressing social need to know whether they are safe from the perpetrator of the relevant crime reappearing on their doorstep. It certainly is not as simple as saying Hussan’s right to privacy trumps every other consideration.

Once bitten; twice shy?

Humberside Police will forever be remembered in data protection circles for being the police force that blamed the Data Protection Act 1998 for its policy of deleting information relating to allegations about the commission of criminal offences, including those of the Soham murderer Ian Huntley (aka Ian Nixon).  Huntley was thus able to secure a position as a school caretaker despite the fact that he had been investigated in the past for sexual offences (one act of indecent assault, four acts or underage sex and three rapes – he had even been charged with rape, but the case was dropped by the Crown Prosecution Service for lack of evidence) and burglary.  His only recorded conviction was for riding a motorcycle without a licence or insurance.

The pendulum has clearly swung the other way, as Humberside and four other constabularies were the subject of separate enforcement notices from the Information Commissioner for retaining records of convictions that were spent under the terms of the Rehabilitation of Offenders Act 1974.  The constabularies appealed to the Information Tribunal.  The decision of the Information Tribunal was to uphold the Information Commissioner’s enforcement notices.  The constabularies appealed to the Court of Appeal, where they were successful. The Court of Appeal judgement has recently been published.

The Court of Appeal decided that the Information Commissioner and Information Tribunal had misconstrued the data protection principles to determine that as the records were not necessary for the “core” police purpose of the detection of crime, they should be deleted.  It was for the data controller to determine the purposes for which personal data was processed, including determining the necessary retention period for data to meet those purposes.  The only restriction in the Data Protection Act 1998 was that those purposes had to be fair and lawful, which included being communicated to the data subject (and included on the data controller’s notification/registration).

It is clear that there is continuing unease about retention of criminal records or other information by police forces, which first became evident in the cases involving indefinite retention of DNA and fingerprint information on persons who have not been charged.  This practice has been ruled to be against an individual’s right to privacy under Article 8 of the European Convention on Human Rights by the European Court of Human Rights in Strasburg (see the S and Marper -v- United Kingdom).

Whilst the constabularies are correct to apply their own judgement to the appropriate retention period for criminal records, this is a sensitive area that calls for legislative intervention. After a consultation on the retention of DNA database records, the Home Office reported in November 2009 that it is considering a limit of six years for the retention of DNA data for innocent persons, but there has been no Home Office response to the Court of Appeal case on the retention of other police records.