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In Truter & ors v Ministry of Justice [2024] EWHC 1668 (KB), five serving prisoners brought claims against His Majesty’s Prison & Probation Service (HMPPS) which were said to be in misfeasance in public office. So far, so unsurprising. The facts underlying the claims were that HMPPS had made use of the claimants’ full record of convictions for the purposes of its OAsys Sexual Reoffending Predictor (OSP), an actuarial risk assessment tool designed to assess the risk of – as the name suggests – sexual reoffending. Risk levels under the OSP are part of the information which affects decisions about management of prisoners, release on licence, licence conditions and recall.
The complaint was that many of the convictions used by HMPPS for the purpose of the OSP were ‘spent’ under the Rehabilitation of Offenders Act 1974. Linden J determined whether or not this practice was unlawful as a preliminary issue.
He noted that ‘the drafting of the 1974 Act is dense in parts, and is not particularly user friendly’. The case turned on s.4 of the Act and the qualifications to it. By s.4(2), questions seeking information about a person’s previous convictions – whether put to that person or to any other person – are to be treated as not relating to spent convictions. There is no exemption in the Rehabilitation of Offenders Act (Exceptions) Order 1975 which applies to this case. At first blush, therefore, this is a fairly cut-and-dried – albeit quite surprising – outcome. The questions in the OSP about number of previous offences should be answered without reference to spent convictions.
But HMPPS submitted that this was an absurd result. S.4 was only intended to apply where the reliance on the spent convictions was intended to have direct legal consequences.
Linden J agreed that HMPPS were entitled to make use of spent convictions in the OSP, but reached that by a different route from HMPPS. He held that the proper analysis of s.4(2) was that a person would not face adverse legal consequences for treating a question about convictions as relating only to spent convictions. And in any event, s.4(2) would not apply where information already held by HMPPS is being inputted into an actuarial tool, rather than new information being elicited. So the practice was lawful, and the claims were dismissed.
It is though illustrative of a number of difficult issues around the handling of information as sensitive as spent convictions. All data protection practitioners know that ‘criminal offence data’, as broadly defined, is subject to additional protections under the UK GDPR (though not, for obvious reasons, under Part 3 DPA). The complexities relating to spent convictions under the 1974 Act are perhaps less well-known, but can be equally important. That is especially the case if seeking to rely on spent convictions in court, which would ordinarily be prohibited by s.4(1) but may be permitted in certain kinds of proceedings under the 1975 Order, or (under s.7) where justice cannot be done in the case except by admitting evidence about the spent convictions. Simple reliance on a PNC record (which does not indicate which convictions are spent) may well breach that prohibition – and while misfeasance in public office will always face additional hurdles, it is easier to see how it might lead to a claim under breach of confidence, misuse of private information or under the data protection legislation from someone who thinks as laterally as Mr Truter.
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.
