QSA & Ors, R (On the Application Of) v National Police Chiefs' Council & Anor

A bright-line policy retaining all recordable convictions on the Police National Computer until the person reaches 100 is sufficiently clear and foreseeable to satisfy the Article 8 requirement that an interference be in accordance with the law. The absence of individual exemptions or an independent review mechanism concerns proportionality rather than legality where the policy confers no discretion.

Retention of a complete conviction record is rationally connected to legitimate policing, criminal justice, safeguarding, vetting and licensing purposes. Its utility depends on completeness, so deleting individual records would undermine the objective. The policy was proportionate overall, notwithstanding the serious personal impact on individuals whose historic convictions arose in circumstances of exploitation.

The claimants had historic convictions for loitering or soliciting for prostitution contrary to section 1 of the Street Offences Act 1959. The convictions remained recorded on the Police National Computer under the National Police Chiefs’ Council policy requiring retention until the person reached 100.

The proceedings followed earlier judicial review litigation. The Divisional Court allowed a challenge to the multiple-convictions rule: [2018] EWHC 407 (Admin). The Court of Appeal later dismissed the criminalisation challenge but allowed the retention challenge and remitted it to a fresh Divisional Court: [2020] EWCA Civ 130. The central issues were whether the 100-year rule was in accordance with Article 8 and whether retention was necessary and proportionate.

1. Legality. The 100-year rule was accessible, precise and foreseeable. It imposed a mandatory rule and conferred no relevant discretion. The requirements of legality did not require the policy itself to contain exemptions or an independent review mechanism. Those matters went to proportionality, not whether the rule was in accordance with the law. The court distinguished the discretionary arrangements considered in MM v United Kingdom, and applied the approach in Re Gallagher.
2. Proportionality. Applying the four-stage test in Bank Mellat v HM Treasury (No 2), the first three stages were satisfied together. Maintaining a complete national record of convictions was sufficiently important. Completeness was rationally connected to the objective, and no less intrusive measure could achieve it without compromising the value of the Police National Computer.
3. The complete record served policing and criminal justice functions, including investigation, prosecution, bail, trial, sentencing, probation and the assessment of witness character. It also supported safeguarding, vetting, licensing, immigration and other public functions. The relevance of even old or minor convictions meant that deletion of a single recordable conviction would undermine confidence that the database was complete.
4. The court accepted the claimants’ distress and the stigma associated with their convictions. However, the challenge had to address the proportionality of the rule as a whole, rather than its application to individual circumstances. The public interest in a comprehensive record outweighed the claimants’ personal interests. A review mechanism would also risk requiring the police to replicate the role of the criminal courts or the Criminal Cases Review Commission.
5. The challenge to the 100-year rule failed. The alternative defence under section 6 of the Human Rights Act 1998 did not require determination. The application for judicial review was dismissed.

1. Court of Appeal: dismissed the criminalisation challenge, allowed the retention challenge and remitted it to a fresh Divisional Court: [2020] EWCA Civ 130.
2. High Court (Administrative Court): dismissed the retained challenge to the NPCC 100-year rule.