Job Applicants and Criminal Records

A recent ruling of the Court of Appeal means that employers will be able to access information on old minor convictions when carrying out criminal record checks on potential employees.

Following complaints from five people, the Information Commissioner issued enforcement notices against five Chief Constables to compel the deletion of the old convictions. On appeal, the Information Tribunal ruled that the convictions should be deleted from the police national computer as their retention was an infringement of principles 3 and 5 of the Data Protection Act 1998 – namely that the data held was excessive and being kept for longer than was necessary.

Four of the complaints arose following the disclosure of convictions as a result of a request for information by the Criminal Records Bureau (CRB). The fifth arose following a request by the individual concerned to see information held about her.

The Tribunal’s decision was appealed. The Court of Appeal stressed that the issue here was not the retention of the records per se but the fact that this meant that the information held could therefore be disclosed.

The Court held that providing the purpose for which data is kept is lawful, it can be processed by the data controller for any purpose which was identified when details were provided to the Information Commissioner’s Office for inclusion on the register of data controllers. The register is available to members of the public for inspection so that they can find out how personal information is being processed by data controllers. In this case, one of the purposes identified by the police of retaining old data on the national computer is so that an accurate record of convictions can be supplied to the Crown Prosecution Service, the courts and the CRB. As this record needs to be complete, the retention of the old data could not be said to be excessive nor was it held for longer than was necessary for the purpose.

The Court went on to say that if the police reasonably believed that keeping a record of all convictions, however old or minor, was useful to them, they should not be denied the right to do so. Furthermore, the circumstances in which information on old convictions would be disclosed would be those in which a job applicant would anyway have to answer truthfully if questioned on the subject.