Issues about what information the state should retain, and what it should be permitted to reveal, continue to trouble the courts. In each situation there is a difficult balancing act to perform: the right of the individual to a private life, which limits the state’s right to retain information, against the interest of the state in preventing crime and protecting vulnerable individuals from harm, which is a public interest.

This fell to be considered by the European Court in the case of MM[1], a Northern Ireland case. Here the applicant had abducted her baby grandson during a family break-up, but only for a day and only to prevent him being taken abroad. She was not charged with an offence but was given a police caution. Some 12 years later, the caution was disclosed as part of a criminal record check and prevented her from getting a job as a health worker.

The European Court confirmed that both the storing and releasing of information concerning an individual’s private life engage Article 8. Criminal convictions start out as public information but as they become older, they can cease to be of public interest and become part of a person’s private life, because of the state policy of rehabilitation. Here, 12 years later, the caution was within the applicant’s private history. The Court held that the  provisions for storing data did not comply with Article 8 in the absence of clear and detailed statutory rules setting out what information should be collected, how long information should be held, what use it should be put to, and what safeguards applied. In particular, the rules on cautions were not statutory and did not allow for any deletion unless the data was inaccurate; and the law requiring disclosure did not take into account the seriousness of the offence or the time that had passed since it took place. Thus, the retention and disclosure of the information about the caution data could not be regarded as having been in accordance with the law and so was in violation of Article 8.

This was followed in the domestic case of T[2]. Here, the Court of Appeal had to consider the English law which permitted the disclosure of a person having received police cautions. The Court held that the statutory regime which required disclosure of all convictions and cautions relating to all recordable offences was disproportionate to the legitimate aims of the disclosure, which were protecting employers, protecting vulnerable individuals in their care and enabling employers to assess the suitability of a candidate. The blanket disclosure system went beyond what was necessary for these purposes and so was disproportionate. The relevant provision of the Police Act 1997 was therefore made the subject of a declaration of incompatibility and the statutory instrument relied on was quashed.[3]

Parliament has addressed storage of information recently in the Protection of Freedoms Act 2012, which addressed breaches of the Convention in the retention and use of biometric data such as fingerprints and DNA samples. It appears that more attention is needed to ensure that other data held by the police gives proper effect to Article 8.