Rights of access
Under the Data Protection Act 1998 those who collect and use personal information have to follow rules of good practice for handling this information, which are the data protection principles.
The 6th Data Protection principle grants the right of “subject access” which is your right as an individual to request disclosure from an organisation of all data which that organisation holds in regard to you.
You are entitled to have copies of all of an organisations information about you subject to various common sense exemptions such as confidential information regarding other people (which will be redacted from any document you are sent), information subject to legal professional privilege or which is prejudicial to the prevention and detection of crime.
If an organisation fails to disclose to you some or all of the data to which you are legitimately entitled then you can bring a complaint to the Information Commissioner’s Office.
When considering a claim against the Police or other public body for wrongful arrest, false imprisonment, assault or malicious prosecution I and my clients will frequently use subject access rights to obtain necessary documentation from the Police prior to presenting the claim.
This is therefore a very important tool in the maintenance of an open and just society.
Rights of deletion
Of equal importance to many of my firm’s clients is an individual’s right to have their personal data held by public authorities, whether it be in the form of written records or biometric samples, deleted in certain circumstances or after the expiry of time.
This is particularly relevant in regards to claims against the Police. For innocent individuals wrongly accused of criminal offences, one of the most important outcomes which they hope to achieve in bringing a claim or complaint against the Police is the deletion or their data and the record of their unlawful or unnecessary arrest.
Section 63F of the Police and Criminal Evidence Act 1984 (as amended by Section 3 of the Protection of Freedoms Act 2012) provides that the retention period for biometric data (such as fingerprints and DNA samples taken from a person who has been arrested but not convicted of a qualifying offence shall be one of only 3 years, after which time all such material should be destroyed.
If the Police were to retain such material beyond that period that would constitute an unlawful interference with an individual’s right to private and family life under article 8 of the European Convention on Human Rights, as well as a breach of the Data Protection Act 1998, and would therefore form the basis for a claim for damages in compensation.
A separate right of appeal exists to the national records deletion unit in regards to an individual’s data on the Police national computer (PNC).
In the ordinary course of events, records of an individual’s arrest will remain indefinitely on the PNC even in situations where the individual was not charges or convicted of any offence, and even where a successful claim has be brought against the Police to establish that the said arrest was unlawful or unnecessary.
My firm has assisted numerous individuals in present appeals for the deletion of their PNC records on some or all of the following grounds –
1. That no crime had been committed.
2. That the arrest was based on a malicious or false allegation.
3. That the PNC record was in consequence of an unlawful arrest – a request for deletion of personal data on this ground is often brought in conjunction with a claim for compensation for wrongful arrest/false imprisonment against the Police.
4. Public interest – I have acted in the past for individuals such as social workers to whom references to an arrest, even an arrest which has subsequently been proven to be unnecessary, and did not result in any criminal charges whatsoever, could be detrimental to that person’s employability and reputation. If an individual has to apply for a criminal records bureau certificate prior to taking up a position of employment, then it is likely that arrests, even those which went no further than Police interview, will be flagged up on that persons PNC record and in those circumstances cause wrongful and avoidable damage to that individual.
Our rights to the lawful deletion of our data are therefore just as important in my opinion, as our right to lawful access to our data and protection from unlawful disclosure of that data.
Please contact me if you think I can be of assistance in regards to legal advice for any of the matters which are discussed here.