Data Protection Act 2018, section 38

The fourth data protection principle

PART 3 Law enforcement processing

(1)The fourth data protection principle is that—

(a)personal data processed for any of the law enforcement purposes must be accurate and, where necessary, kept up to date, and

(b)every reasonable step must be taken to ensure that personal data that is inaccurate, having regard to the law enforcement purpose for which it is processed, is erased or rectified without delay.

(2)In processing personal data for any of the law enforcement purposes, personal data based on facts must, so far as possible, be distinguished from personal data based on personal assessments.

(3)In processing personal data for any of the law enforcement purposes, a clear distinction must, where relevant and as far as possible, be made between personal data relating to different categories of data subject, such as—

(a)persons suspected of having committed or being about to commit a criminal offence;

(b)persons convicted of a criminal offence;

(c)persons who are or may be victims of a criminal offence;

(d)witnesses or other persons with information about offences.

(4)All reasonable steps must be taken to ensure that personal data which is inaccurate, incomplete or no longer up to date is not transmitted or made available for any of the law enforcement purposes.

(5)For that purpose—

(a)the quality of personal data must be verified before it is transmitted or made available,

(b)in all transmissions of personal data, the necessary information enabling the recipient to assess the degree of accuracy, completeness and reliability of the data and the extent to which it is up to date must be included, and

(c)if, after personal data has been transmitted, it emerges that the data was incorrect or that the transmission was unlawful, the recipient must be notified without delay.

Definitions used in section 38 3

the law enforcement purposes

For the purposes of this Part, “the law enforcement purposes” are the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.

Defined in s.31 · see it in the full Act
inaccurate

“inaccurate”, in relation to personal data, means incorrect or misleading as to any matter of fact;

Defined in s.205(1) · see it in the full Act
Recipient

(5) “Recipient”, in relation to any personal data, means any person to whom the data is disclosed, whether a third party or not, but it does not include a public authority to whom disclosure is or may be made in the framework of a particular inquiry in accordance with the law.

Defined in s.33(5) · see it in the full Act

Cases considering section 38 4

O, R (on the application of) v Chief Constable of Kent Police

[2024] EWHC 1678 (Admin) · 11 July 2024

Applies the fourth data protection principle. The crime report was inaccurate because it suggested that the claimant had committed common assault and inaccurately attributed anger to him. Confirms that the defendant failed to verify the quality of the personal data before recording the alleged assault. Confirms that the defendant failed to include information enabling assessment of the accuracy, completeness and reliability of the data, including the contemporaneous account and the absence of any interview of the claimant about smacking.

Muhammad Ibrahim v Ministry of Justice

[2024] EWHC 3521 (KB) · 18 April 2024Limits

Section 38 supplies the governing accuracy principle for law-enforcement data. The court construed it as distinguishing accurate recording of statements or opinions from challenges to the truth or merits of their contents. (see paras [15]-[21]) The court applied the requirement that law-enforcement personal data be accurate and, where necessary, kept up to date. It held that the requirement did not permit challenges to the underlying truth of recorded assessments in the circumstances of the claim. (see paras [15]-[21]) Section 38(2) distinguishes personal data based on facts from personal data based on personal assessments. The court treated probation officers’ evaluative conclusions as assessments rather than factual data open to challenge under the claimant’s proposed approach. (see paras [15], [25], [31]) The court set out the requirement concerning inaccurate, incomplete or outdated data being transmitted or made available for law-enforcement purposes. It did not treat that provision as requiring erasure of historic probation material. (see paras [15], [18])

AB v Chief Constable of British Transport Police

[2022] EWHC 2749 (KB) · 7 November 2022

Requires personal data to be accurate and, where necessary, up to date under the fourth data protection principle. The judgment applies that requirement to the OSRs. (see paras [26], [69]-[79]) Requires, so far as possible, personal data based on facts to be distinguished from data based on personal assessments. (see para [28]) Requires, where relevant and possible, a clear distinction between data concerning different categories of data subject, including convicted and suspected persons. (see para [28])

What each judgment says about section 38 is in the case-law panel in the full Act.

Amendments and notes

1 notes from legislation.gov.uk

Commencement

  1. I38S. 38 in force at 25.5.2018 by S.I. 2018/625, reg. 2(1)(c)