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DATA-PROTECTION  2004

DATA-PROTECTION 2004

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Subject:

Re: It's Friday - straw poll (just for fun)

From:

Laurence Bebbington <[log in to unmask]>

Reply-To:

Laurence Bebbington <[log in to unmask]>

Date:

Fri, 13 Aug 2004 16:41:28 +0100

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (276 lines)

I completely agree with what you say and let me make clearer what I was thinking of when I wrote:

“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).”

I was not for a moment suggesting that someone with previous convictions for similar offences has a lesser case in any way at all to have them expunged from his/her record, than someone who has no criminal history. No individual should be expected to tolerate being attributed with criminal offences he/she did not commit. 

But I was thinking that where somebody had absolutely no criminal record whatsoever then it seems to me they have a very strong case to have *everything* relating to a case of completely mistaken identity removed from any sources if they feel it is likely to cause them any damage or distress at all (they may not, however, have a totally unanswerable case for this).  In the case of someone who did not commit these particular offences but who had committed the same or related offences previously, it might be harder for them to deploy the argument that some mention that they were investigated for these crimes – but were found not to be responsible - should not be retained somewhere for an appropriate period of time. It would depend on all of the circumstances of the case. I don’t actually subscribe to that view myself but I’m sure some police officers would.

But I agree entirely that nobody irrespective of previous behaviour should have any offence attributed to them that they clealry did not commit.

Laurence


>>> Ian Welton <[log in to unmask]> 13/08/04 16:06:37 >>>
Laurence Bebbington on 13 August 2004 at 15:25 said:-

> 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.

I largely agree with the spirit of your e-mail but being Friday...

Treating people with a previous criminal history and people who have no
previous criminal history differently would seem at odds with DPA
requirements.  

Either the offence(s) in question are recorded against the correct
individual for the appropriate period of time, or they are not.  The issue
of the existence of a record relating to an individual who is innocent of
that particular offence is something completely different.  The fact that
cross referencing existing records simplifies some technical difficulties
does not resolve any difficulties caused to the individual innocent of that
offence.  

The correct level of training and maintenance of training in the computer
application could resolve those difficulties, but many organisations merely
skimp over computer training because of the immediately perceived costs and
other priorities.  Sad for individuals when the results adversely affect
them and there is no simple recourse to resolve the difficulties.  

DPO's are sometimes in a position to assist, but as you state clearly the
system/computer rules (which are generally formulated/changed to match the
perfect state of training and use) are there to be adhered to, and this
should assist the individual. It appears this is not always the case though
and that some human mechanism is sometimes required.


Ian W

> -----Original Message-----
> From: This list is for those interested in Data Protection 
> issues [mailto:[log in to unmask]] On Behalf Of 
> Laurence Bebbington
> Sent: 13 August 2004 15:25
> To: [log in to unmask] 
> Subject: Re: It's Friday - straw poll (just for fun)
> 
> 
> 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/200 
> 2/09/05/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
> 
> Please Note: The information given above does not replace or 
> negate the need
> for proper legal advice and/or representation. It is 
> essential that you do not
> rely upon any advice given without contacting your solicitor. 
>  If you need
> further explanation of any points raised please contact Keep 
> I.T. Legal Ltd at
> the address below:
> 
> 55 Curbar Curve
> Inkersall, Chesterfield
> Derbyshire  S43 3HP
> (Reg 3822335)
> Tel: 01246 473999
> Fax: 01246 470742
> E-mail: [log in to unmask] 
> Website: www.keepitlegal.co.uk 
> 
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