Some thoughts:
1. If entirely innocent of these "crimes" then I'm surprised that any individual would be happy with the Police solution proposed. No "crimes" have been committed by you; it is established beyond doubt that your identity has been appropriated and used; it is against the individual who did commit the crimes that the record of criminality should lie. So the police do have a proper way to record details of the offences - and that is on the record and against the true name and details of the person who committed the crimes, all of which are now known. The fact that he/she is an illegal immigrant is immaterial. The culprit is known and identified - and it's not you. To have records floating around about you attributing potentially serious crimes to you (and it doesn't have to be rape etc. since seriousness can vary substantially with your context, job etc.) and having to rely on someone picking up on a note or flag on the record to realise this was all a dreadful case of mistaken identity or incompetent investigation by the Police is, in my view, seriously inadequate and unacceptable. Anyway, Home Office researchers and other authorised individuals use the PNC and other sources for research purposes and this hardly seems a sensible way in which to leave completely erroneous data.
However, as with many short scenarios additional facts might change the answer (e.g. if you actually already had a criminal record for similar offences or related offences then that might change the situation somewhat). But assuming that you are talking about a law-abiding individual with no previous criminal history I would find the solution entirely unacceptable. People are entitled to maintain their unblemished reputations. I do not think anyone would object to a record or information being kept that they were the victim of some form of identity fraud, mistaken identity etc. and outlining the circumstances (particularly if the crimes were serious) but to suggest that you cannot have a completely false criminal record expunged but merely annotated in some unsatisfactory way seems to me utterly ridiculous.
2. I would do a number of things. Check if the Force's data protection policy is sound and conforms to the ACPO guidelines; use the IC's Office; consider using all suitable avenues of complaint (e.g. the Force's procedures; complaints procedures via the CRB who will make changes to false records; the new Independent Police Complaints Commission etc.). If none of this worked, I might consider getting expert legal advice on likelihood of success of a civil action against the police under a range of possible headings including breach of data protection rights; any possible human rights aspects; any grounds for a civil action against the police in relation to the investigation etc. I acknowledge the latter two (especially a civil action on the last grounds) will be expensive and possibly very difficult to establish a case. Finally, if I couldn't afford the latter and all other things failed (and I'd be worried if they did) I would send the Chief Constable a letter demanding a written explanation as to why and on what grounds the record cannot be put straight, wanting to know when the information would be removed according to the Force's own data retention policy and that it be recorded on the file that given the refusal to destroy the records completely and put it straight to my satisfaction, then any disclosure at all of the acknowledged erroneous information would be treated by me as providing grounds for further action.
It might be noted that individuals going through the Criminal Records Bureau who have had completely false criminal records attributed to them because of wrong information etc. on the PNC have had them removed by the CRB and received an apology.
And from April see the following stories which resulted from a parliamentary question on this issue by a Liberal Democrat MP:
http://news.bbc.co.uk/1/hi/uk/3630971.stm or
http://www.computerweekly.com/Article130026.htm or also
http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2002/09/05/do0501.xml
which is interesting because it states that the use of a pro forma letter by the CRB to a retired RAF officer who complained of a being wrongly attributed with a criminal record suggested that this type of mistake was rather common.
Laurence
Laurence W. Bebbington
Law Librarian
Information Services
The University of Nottingham
University Park
Nottingham
NG7 2RD
>>> <[log in to unmask]> 13/08/04 10:13:18 >>>
As it's Friday and raining, again, and in an effort to involve a few more
people, can we just have a straw poll on the following? I have changed the
details of the case so that now, the data subject is you.
Scenario: "As a result of a Police National Computer check you find out that
your record contains details of crimes which you have not committed. Your
innocence is confirmed through finger print evidence. It is established that the
person who had in fact committed the offences was an illegal immigrant who had
your identity. The Police think it is impossible to remove the record as they
have no other way of recording information about the offences. However they
agree to put comments on the record about your physical characteristics proving
that you are not the offender."
Questions:
1) Would you be happy with the solution proposed by the police?
2) What would you do to try to change the situation?
Ian B
Ian Buckland
Managing Director
Keep IT Legal Ltd
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