This High Court ruling on criminal records is only a minor win for human rights

This ruling may limit the disclosure of historic information, but what about its retention?

Click to follow
The Independent Online

My neighbour is not a Police and Crime Commissioner. I have no idea whether he would have been a good one, a bad one or somewhere in between. I shall never know. For faced with a requirement to declare that he was entirely spotless, innocent of all crime, he was forced to come clean.

Yes, Phil Dilks, former Labour County Councillor, District Councillor, Parish Councillor, 8 years a member of his local police authority, is a crim. Should I be worried? After all, he lives within sight of my front door. Or have I better things to fret over than the fact that some 44 years ago, a pillar of my local community, then aged 16, received a £5 fine after pleading guilty to “handling stolen goods”: in this case, a friend’s motorbike helmet, taken in jest and left overnight in his garage. 

That, it seems, is the gist of an eminently sensible judgment handed down by Master of the Rolls, Lord Dyson and two other judges, ruling in the Appeal Court earlier this week that current law on criminal record checking, now managed by something called the Disclosure and Barring Service (DBS),  is contrary to human rights. 

Is that a sharp intake of breath I hear, as Tory backbenchers line up to condemn yet another outbreak of “political correctness gone mad”? Not to mention this awfully Europhile notion of 'human rights'. Surely not. 

After all, I’m sure his Lordship, the second highest judge in the land, has given due consideration to the matter. In this instance, he was not impressed by the case of a young man identified in court as “T”. Aged 11, he had twice received warnings from Manchester Police in connection with two stolen bicycles. Since then, the information has been disclosed on two occasions, once when applying for a job and a second time when applying for a university course. This seems something of an unfair burden to lay on a young man just setting out in life.

Lord Dyson has not condemned the DBS system root and branch. Rather, he has made a declaration that in its present form it is “disproportionate”. The point is a good one, wholly in line with a recent Government review that recommended the introduction of a filter to remove old and minor conviction information. No one - repeat: no one - is recommending the removal of information relating to serious offences, such as crimes of violence, rape or child abuse.

That, at least, is the conventional wisdom, though reality is possibly a good deal more complex.  Consternation over at the Home Office stems in large part from a toxic mix of practical consideration and culture. On the one hand, civil servants and IT analysts alike are loath to give up their data. Ever.

On the other: well, deciding what to remove and when and how is complicated; and behind those complicated debates sits the overhanging fear that if they get it wrong and another Ian Huntley slips through the intelligence net, someone’s head will be on the block.

Then, too, there is the sense in which this entire debate is sleight of hand: a three card trick in which the real target is never revealed. The retention of data is not at issue here, though many papers fail to make the distinction. We are talking disclosure only. The argument, not entirely without merit, is that the pattern of offending, including even the least offences, may prove useful in identifying future offenders. Scary stuff. Especially when one learns that in recent months, the police, under the auspices of something named “Operation Nutmeg”, have been out demanding the DNA of men convicted of the now repealed consensual offence of gross indecency..

It seems the mooted “gay amnesty”, under which those with a historic conviction for consensual gay sex would have the details removed from official records, never happened. Or, as I suggested to the Home Office at the time – ruffling not a few feathers in the process - is it simply being flagged as no longer relevant, leaving these convictions on the system for those who know how to find them?

Sadly, for all the fine words of Appeal Court judges, we are a nation wedded to our past. A mixture of fear and caution and bloody-mindedness means that we may, occasionally, decide that transforming the minor indiscretions of childhood into a sackable offence twenty years on is a step too far. But actually purge our systems of such data?  Never!