Imagine the scene, you are 18 years old, you have rather unwisely been a bit rowdy after sampling your first shandy and the overworked police officer has arrested you for a breach of the peace. You are not judged to be a serious threat to society and are bound over to the peace for a year. Time passes, one grows up and, in your 30s, you apply for a great job. But your prospective employer says they do not employ anyone with a criminal conviction. And that is it – life as you know it has changed irreparably.

This is not a nightmare, this is reality. On 19 October, the Court of Appeal ruled that criminal records may be held on police records as long as the police feel is necessary. This was the judgment in the case of Chief Constable of Humberside Police, Chief Constable of Staffordshire Police, Chief Constable of Northumbria Police, Chief Constable of West Midlands Police, Chief Constable of Greater Manchester Police v The Information Commissioner [2009] EWCA Civ 1079.

According to the Court of Appeal, any details of offences, no matter how long ago they occurred, no matter how trivial the conviction, can now be shared with the Criminal Records Bureau in the UK. This bureau supplies information to employers vetting job applications.

The Court of Appeal’s ruling came about when a test case was brought by five individuals whose minor convictions became apparent when background checks were carried out. One defendant was found guilty in 1984 of stealing a packet of meat worth 99p, was fined £15 and was a child at the time. Originally the litigants won their case both with the Information Commissioner’s Office and at the Information Tribunal.

However that decision, which could have led to over a million convictions being removed from police databases, was appealed to the Court of Appeal. Lord Justice Waller stated that: ‘If the police say rationally and reasonably that convictions, however old or minor, have a value in the work they do, that should, in effect, be the end of the matter’. The Court of Appeal felt the commission had interfered in decisions that police forces alone should be making.

This seems to me to be at variance with the Rehabilitation of Offenders Act 1974, which states at section 4.7: ‘Subject to sections 7 and 8 below, a person who has become a rehabilitated person for the purposes of this act in respect of a conviction shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction; and, notwithstanding the provisions of any other enactment or rule of law to the contrary.

‘(7) Where in respect of a conviction a hospital order under part III of the Mental Health Act 1983 or under part VI of the Mental Health (Scotland) Act 1984 (with or without a restriction order) was made, the rehabilitation period applicable to the sentence shall be the period of five years from the date of conviction or a period beginning with that date and ending two years after the date on which the hospital order ceases or ceased to have effect, whichever is the longer.

‘(8) Where in respect of a conviction an order was made imposing on the person convicted any disqualification, disability, prohibition or other penalty, the rehabilitation period applicable to the sentence shall be a period beginning with the date of conviction and ending on the date on which the disqualification, disability, prohibition or penalty (as the case may be) ceases or ceased to have effect.’

Formerly the position was that information about an individual’s convictions or other involvement with the police (helping them with their enquiries, for instance) is considered particularly sensitive, and is protected by the Data Protection Act 1998, police forces were bound to delete information from the Police National Computer (PNC). This was further enhanced by the right to respect for privacy under article 8 of the European Convention on Human Rights.

The problem was always how to walk the tightrope of balance on these matters – on one side the need to have a protocol for legitimate reasons to disclose the information, and on the other the privacy of the individual and rehabilitation of offenders. The 1974 act allowed people to start with a clean slate once their debt to society had been paid. These convictions are termed as ‘spent’ convictions. The convictions in question, which were determined as spent, were not required to be disclosed by persons applying for jobs. Of course, there were significant safeguards built into the system – for example, those whose work brought them into contact with children and so on.

The exceptions to the 1974 act are, briefly, those who: work with children and vulnerable adults; certain professions in areas such as health, pharmacy, and the law; senior managers in banking and financial services; and appointments to jobs where national security may be at risk.

With regards to ECHR case law, the case law cited at the substantive hearing was the ECHR case of S and Marper v UK, 4 December 2008, as authority that retention of personal data can engage article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In that case, the applicants complained under articles 8 and 14 that the authorities had continued to retain their fingerprints and cellular samples and DNA profiles after the criminal proceedings against them had ended with an acquittal, or had been discontinued. The ECHR held that there had been a violation of article 8: the UK’s ‘blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences’. The devil is in the detail – persons ‘suspected’, not ‘convicted’.

The Court of Appeal felt that, in this case, the nature of the information held was quite different. The main issue related to the retention of fingerprints and DNA records of the unconvicted, whereas the Court of Appeal matter refers to actual convictions. Lord Justice Carnwath said: ‘What is in issue here is the rendering of assistance to other public agencies, not to the public in general.’

The ruling will cover over 11 million people. The Association of Chief Police Officers said that the information ‘assists police in their work in preventing crime and protecting the public’. I would agree with the sentiment, but surely there is another way. Benefits to the police are minimal, but a huge cost to the individual.

There is, however, a glimmer of hope. Lord Justice Carnwath states at the end of his judgement: ‘It is for parliament, and not for the commissioner alone, to consider any limitation on the indirect access of others to the contents of the PNC. I would respectfully agree that the time may well have come to review the accretions which there have been to the Rehabilitation of Offenders Act 1974 (Exceptions) Order.’

As a postscript, figures released on 20 October in the Annual Report to Parliament on the DNA database show that one million people have been added to the database, but the database is being used to detect fewer crimes. Police detections fell from 81,457 in 2005/5 to 64,949 in 2006/7. One in five of those on the system are men, and one in ten is aged 16-17 years old. The UK database is 50 times larger than the one in France.

Mindful of the maxim ‘innocent people have nothing to fear from the police’, and the reality of the miscarriages of justice of the past 10 years, the thought of never being free of the discretions of youth is daunting. One can only hope that the legislature addresses the matter sooner rather than later.

Terence O'Connor is a senior solicitor in the Legal & Democratic Division of Wigan Council