QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE KENNETH PARKER
| The Queen, on the application of
(1) RMC and (2) FJ
|- and -
|Commissioner of Police of the Metropolis
- and -
Secretary of State for the Home Department
- and -
(1) Liberty and (2) Equality and Human Rights Commission
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Jeremy Johnson QC (instructed by the Directorate of Legal Services, Metropolitan Police Service) for the Defendant
Jonathan Moffett (instructed by The Treasury Solicitor) for the Secretary of State
Grodon Nardell QC and Rory Dunlop (instructed by the Legal Director of Liberty) for Liberty
The Equality and Human Rights Commission made written submissions settled by Alex Bailin QC and Elizabeth Prochaska
Hearing dates: 15-16 March 2012
Crown Copyright ©
Lord Justice Richards :
Legislative and policy framework
"(1) A person who is detained at a police station may be photographed –
(a) with the appropriate consent; or
(b) if the appropriate consent is withheld or it is not practicable to obtain it, without it.
(4) A photograph taken under this section –
(a) may be used by, or disclosed to, any person for any purpose related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution or to the enforcement of a sentence; and
(b) after being so used or disclosed, may be retained but may not be used or disclosed except for a purpose so related."
"3.1 National guidance on management of police information
3.1.1 Guidance under this Code will: -
(b) direct the management of police information within police forces so as to ensure consistent procedures throughout the police service for obtaining, recording, storing, reviewing, deleting and sharing information …
3.2. An Information Management Strategy to be applied within each police force
3.2.1 Chief officers will establish and maintain within their forces an Information Management Strategy, under the direction of an officer of ACPO rank or equivalent, complying with guidance and standards to be issued under this Code ….
3.3 National system requirements for the management of police information
3.3.1 For the purpose of achieving throughout the police service the standards described at 3.1.1 above, guidance issued under this Code … may specify procedures to be adopted within police forces for the management of police information systems ….
4.1 Duty to obtain and manage information
4.1.2 Chief officers must ensure that arrangements within their forces for the management of police information comply with the principles set out in the following paragraphs, and with guidance issued under this Code to give effect to these principles.
4.5 Review of police information
4.5.1 Information originally recorded for police purposes must be reviewed at intervals to be prescribed in guidance under this Code ….
4.6 Retention and deletion of police information
4.6.1 On each occasion when it is reviewed, information originally recorded for police purposes should be considered for retention and deletion in accordance with criteria set out in guidance under this Code …."
"7.4 This subsection sets out the framework for decision making on the retention of police information. The key points relating to the National Retention Assessment Criteria are:
- The infringement of an individual's privacy created by the retention of their personal information must satisfy the proportionality test;
- Forces should be confident that any records they dispose of are no longer needed for policing purposes;
- There should be a consistent approach to the retention of police information.
All records which are accurate, adequate, up to date and necessary for policing purposes will be held for a minimum of six years from the date of creation. This six-year minimum helps to ensure that forces have sufficient information to identify offending patterns over time, and helps guard against individuals' efforts to avoid detection over lengthy periods.
Beyond the six-year period, there is a requirement to review whether it is still necessary to keep the record for a policing purpose. The review process specifies that forces may retain records only for as long as they are necessary. The template in Appendix 4 provides guidance on establishing whether or not information is still needed for a policing purpose.
The national retention criteria asks a series of questions, focused on known risk factors, in an effort to draw reasonable and informed conclusions about the risk of harm presented by individuals or offenders. These questions are: Is there evidence of a capacity to inflict serious harm? … Are there any concerns in relation to children or vulnerable adults? … Did the behaviour involve a breach of trust? … Is there evidence of established links or associations which might increase the risk of harm? … Are there concerns in relation to substance misuse? … Are there concerns that an individual's mental state might exacerbate risk? …
Where the answer to any of the questions above is 'Yes' then information relating to the individual being assessed should be retained and reviewed again at intervals designated by the review schedule given in Appendix 4 ….
There may be other circumstances not covered by the criteria listed above, where forces consider that they have a genuine need to retain records. Wherever a record is assessed as being necessary and proportionate to the purpose it serves, it can be retained …."
"7.6.2 Wherever further police information is submitted on an individual which relates to certain public protection matters or other sexual, violent or serious offending (Groups 1 and 2 …), or the risk thereof, or relates to a person previously identified as presenting such a risk, a review should be conducted in relation to all police information held on that person.
The policy for triggered reviews in each force should be published and clearly communicated to all staff to ensure understanding and adherence across the organisation.
Triggered reviews should also be held in the following circumstances:
- Subject Access Requests – subject access requests should be used as a trigger for review. Forces must disclose the information available at the time of the request and only update or dispose of records once the request has been responded to."
Cases falling within "Groups 1 and 2" are described in the subsection dealing with scheduled reviews, as set out below.
"Group 1: Certain Public Protection Matters
The MoPI Code of Practice acknowledges that there are 'certain public protection matters' which are of such importance that information relating to them should only be disposed of if it is found to be entirely inaccurate or no longer necessary for policing purposes.
Certain public protection matters are defined fully in 2.3 Critical Information Areas. They are:
- Information relating to all offenders who have ever been managed under MAPPA;
- Information relating to individuals who have been convicted, acquitted, charged, arrested, questioned or implicated in relation to murder or a serious offence as specified in the Criminal Justice Act 2003 (CJA) or historical offences that would be charged as such if committed today;
- Potentially dangerous people.
Forces must retain all information relating to certain public protection matters until such time as a subject is deemed to have reached 100 years of age (this should be calculated using the subject's date of birth). There is still a requirement, however, to review this information regularly to ensure that it is adequate and up to date. …
There may be extreme cases where the retention of records relating to certain public protection matters would be disproportionately injurious to the individual they are recorded against. For example, an individual arrested on suspicion of murder for a death that is subsequently found to have been the result of natural causes, or an entirely malicious accusation that has been proved as such, would both generate records that can only be adequate and up to date if they reflect what actually happened. Particular care must be exercised in disclosing any such records to avoid any unnecessary damage to the person who is the subject of the record.
Group 2: Other Sexual, Violent or Serious Offences
… A violent offence is any of those specified as such in the current Home Office Counting Rules for recorded crime ….
Information relating to sexual, violent or serious offences that are not listed as serious specified offences in the CJA can only be retained for as long as the offender or suspected offender continues to be assessed as posing a risk of harm, using the NRAC in Appendix 4.
After every ten-year clear period, these records should be reviewed and a risk-based decision made as to whether they should be retained or disposed of. This group includes any information related to persons convicted, acquitted, charged, arrested, questioned or implicated with an offence within this group. If the individual in question continues to offend or is implicated in continued offending then records relating to them must be retained ….
Group 3: All Other Offences
Records relating to people who are convicted, acquitted, charged, arrested, questioned or implicated for offending behaviour which does not fall within Group 1 or Group 2 are dealt with in Group 3.
Records that fall within this group do not necessarily have to be reviewed. Forces may opt to use a system of time-based, automatic disposal for classes of information in this group if it is considered that the risk of disposing of these records is outweighed by the administrative burden of reviewing them or the cost of retaining them.
Forces who opt to use time-based disposal for all or a proportion of their Group 3 records must observe the following principles: …
- All records subject to time-based disposal must still be retained for an initial six year period;
- Any Group 3 records that forces wish to retain for longer than six years must be reviewed at five-yearly intervals and risk assessed using the NRAC in Appendix 4. …"
(1) In a note submitted after the hearing, Mr Johnson drew the court's attention to the fact that work to revise the existing policy was already underway and that in some respects revisions had already been agreed internally. He referred to evidence on this subject that was filed in T and R v Commissioner of Police of the Metropolis, a case then before the Administrative Court but judgment in which has since been handed down (see  EWHC 1115 (Admin)). He told us that the changes referred to in that evidence did not apply to custody photographs. In a written response, Mr Cragg drew attention to the detail of the evidence filed in T and R and relied on it as indicating that the defendant has in fact devised its own policy on the retention of information and that this policy takes precedence over the MoPI guidance. He submitted that it could not therefore now be said that the defendant applies the MoPI guidance to the retention of photographs. It seems to me, however, that we have to proceed by reference to the evidence filed in the cases before us. In any event the evidence filed in T and R, whilst suggesting a somewhat confused picture, does not contradict or directly undermine the defendant's evidence in the present cases about the application of the MoPI guidance to the retention of photographs.
(2) As explained below, the retention decisions taken in the present cases make no reference to the MoPI guidance. Whilst this adds to the confused picture, it is not inconsistent with the defendant's evidence that the current policy in relation to custody photographs is to apply the MoPI guidance.
(3) There is, however, no clear statement of that policy in published documents. Various of the defendant's policy documents were in evidence before us, including an Information Management Strategy, an Information Management Policy and a Visual Evidence Policy, all of which are said to be available on the internet. None of them contains a statement that the policy in relation to custody photographs is to apply the MoPI Code of Practice and the MoPI guidance; nor do the documents themselves add materially to the picture. The Visual Evidence Policy refers in turn to a number of Standard Operating Procedures, including the Visual Identification of Suspects Standard Operating Procedure, which were also in evidence before us. The Standard Operating Procedures do include statements that the retention and disposal of data must be in accordance with the MoPI guidance, but we were told that those documents are not available on the internet or otherwise published.
(4) In the circumstances it is not surprising that the claimants were in a state of some uncertainty at the outset of the hearing as to which policy documents were relevant. But looking at the evidence overall, I think it right to approach the case on the basis that it is the defendant's policy in relation to custody photographs to apply the MoPI Code of Practice and the MoPI guidance and that nothing turns on the various other policy documents to which I have referred above, whether published or unpublished. The lack of clarity on the subject will, however, be relevant to the issue of justification under art.8(2) to which I will come later in this judgment.
The retention decisions in these cases
"Retention decision in FJ
13. In line with the Exceptional Case Procedure I considered the representations made by Hickman and Rose on behalf of FJ and reviewed the circumstances of the case ….
14. My assessment of the application was as follows. Police had a video taped interview from an alleged victim saying that the offence had occurred. The CPS had been influenced in their decision-making by inconsistencies in the account given by the alleged victim. There was no forensic evidence. The report was made a good while later from the date of the alleged offence. The report from the alleged victim remains as an accepted and recorded incidence of rape. Accepted in this context means that there were no substantive reasons, under the National Crime Reporting Standards, for not believing a crime took place. In accordance with these Standards, there was no evidence to show or to conclude that the offence had not taken place and hence to classify the allegation as 'no crime'. I did not agree that the arrest of FJ was unnecessary or that the taking of fingerprints, DNA and photograph was disproportionate. I was in possession of advice from the Association of Chief Police Officers Criminal Records Office that 'a substantive and undetected crime is still recorded, therefore under current guidelines provided the necessity for arrest was established and the whole process lawfully conducted, retention [of the records] is justified'.
15. Based on the information before me, I concluded that no exceptional criteria under the Exceptional Case Procedure were made out and my decision was that the fingerprints, DNA and PNC records would be retained.
16. Under the Exceptional Case Procedure the fingerprints, DNA and PNC record are treated as an integrated whole …. Accordingly, if the retention of the DNA and fingerprints continue to be retained then so too should be the PNC data.
17. Custody photographs, although they have a value as means of confirming identity, are not regarded in the same way as DNA and fingerprints and are not intrinsically linked when decisions are made under the Exceptional Case Procedure. As explained above, custody photographs are not uploaded onto the Police National Computer. My decision in the FJ case therefore did not touch upon the issue of his custody photograph. If I had considered this my decision would have been to retain the photograph using the same reasoning as for the DNA and fingerprints.
Retention decision in RMC
18. On 2nd March 2012 I considered an application under the Exceptional Case Procedure from RMC made through her solicitors, Bindmans LLP, in a letter dated 28th September 2009. Due to an oversight, this matter had not previously been referred to me for a decision ….
19. The circumstances of the case were that RMC was arrested for assault occasioning actual bodily harm to a police community safety officer after she had been stopped riding a pedal cycle on the footway. The allegation was denied and RMC made a counter allegation of assault. The officer's account was corroborated by a fellow police community safety officer. RMC's account was corroborated by a man who worked in the block where RMC lived. The matter was investigated and was referred to the Crown Prosecution Service for a decision. They decided not to prosecute RMC and the matter was taken no further by police. RMC subsequently lodged a complaint which was considered and the Independent Police Complaints Commission judged that RMC's arrest had been lawful and did not uphold the complaint.
20. I considered the circumstances of the case and the grounds argued by Bindmans for deletion of RMC's person information under the Exceptional Case Procedure. My judgment was that it was not an exceptional case and that the information should be retained. My reasoning was as follows. The arrest of RMC was lawful and proper process was followed. The allegation of assault remains classified as a substantive crime and RMC was the only suspect. The fact that RMC was not charged and no prosecution followed is not an exceptional criterion under the Exceptional Case Procedure. On this occasion I did specifically consider the custody photograph in my decision making. I do not accept the argument that no policing purpose is served by the retention of the information. For the reasons given above, my view is that the information continues to serve a policing purpose.
21. However, as I explain above, the Metropolitan Police's policy in this area is being reviewed (in part in the light of the Protection of Freedom Bill). It is therefore likely that new policy will soon be promulgated. This will affect whether the Claimants' photographs continue to be retained thereafter."
(1) The MoPI guidance provides in subsection 7.4 (see para  above) that all records which are accurate, adequate, up to date and necessary for policing purposes (as Commander Gibson evidently considered the claimants' data still to be) will be held for a minimum of six years.
(2) Moreover, scheduled reviews under subsection 7.6.3 (see para  above) are not due even then. There was a degree of uncertainty at the hearing as to the group within which each of the claimants fell for the purposes of scheduled reviews, but it was confirmed after the hearing that RMC falls within Group 2 (because the offence of assault occasioning actual bodily harm for which she was arrested is specified as a violent offence in the Home Office Counting Rules), and that FJ falls within Group 1 (because the offence of rape for which he was arrested is a serious offence as specified in the Criminal Justice Act 2003). This means that in RMC's case the guidance provides for a scheduled review after a period of 10 years, whilst in FJ's case it provides for the information to be retained until FJ is aged 100, subject to review every 10 years to ensure that it is adequate and up to date.
(3) That leaves the question of triggered reviews under section 7.6.2 (see para  above). In the course of his submissions Mr Johnson relied on the provision that subject access requests should be used as a trigger for review. A subject access request is a formal application to the Public Access Office requesting a copy of all personal data held on the applicant by the defendant. There is late evidence from RMC's solicitor, to which I think it right to have regard notwithstanding an objection on behalf of the defendant, that RMC made such a request on 23 September 2008. There is nothing to show that it triggered a review under the MoPI guidance.
(4) But even if a review should have been triggered, I see no realistic possibility that it would have led to any outcome other than the continued retention of RMC's photographs, having regard to the six year minimum period and the other provisions of the MoPI guidance.
Whether the retention of the photographs is an interference with article 8(1) rights
"(1) Everyone has the right to respect for his private … life ….
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society … for the prevention of disorder or crime".
"66. The Court recalls that the concept of 'private life' is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can therefore embrace multiple aspects of the person's physical and social identity …. Beyond a person's name, his or her private and family life may include other means of personal identification or linking to a family …. The concept of private life moreover includes elements relating to a person's right to their image.
67. The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of art.8. The subsequent use of the stored information has no bearing on that finding. However, in determining whether the personal information retained by the authorities involves any of the private-life aspects mentioned above, the Court will have due regard to the specific context in which the information at issue has been recorded and retained, the nature of the records, the way in which these records are used and processed and the results that may be obtained."
"78. It is common ground that fingerprints do not contain as much information as either cellular samples or DNA profiles. The issue of alleged interference with the right to respect for private life caused by their retention by the authorities has already been considered by the Convention organs.
79. In McVeigh, the Commission first examined the issue of the taking and retention of fingerprints as part of a series of investigative measures. It accepted that at least some of the measures disclosed an interference with the applicants' private life, while leaving open the question of whether the retention of fingerprints alone would amount to such interference.
80. In Kinnunen, the Commission considered that fingerprints and photographs retained following the applicant's arrest did not constitute an interference with his private life as they did not contain any subjective appreciations which called for refutation. The Commission noted, however, that the data at issue had been destroyed nine years later at the applicants' request.
81. Having regard to these findings and the questions raised in the present case, the Court considers it appropriate to review this issue. It notes at the outset that the applicants' fingerprint records constitute their personal data which contain certain external identification features much in the same way as, for example, personal photographs or voice samples.
82. In Friedl, the Commission considered that the retention of anonymous photographs that have been taken at a public demonstration did not interfere with the right to respect for private life. In so deciding, it attached special weight to the fact that the photographs concerned had not been entered in a data-processing system and that the authorities had taken no steps to identify the person photographed by means of data processing.
83. In PG, the Court considered that the recording of data and the systematic or permanent nature of the record could give rise to private-life considerations even though the data in question may have been available in the public domain or otherwise. The Court noted that a permanent record of a person's voice for further analysis was of direct relevance to identifying that person when considered in conjunction with other personal data. It accordingly regarded the recording of the applicants' voices for such further analysis as amounting to interference with their right to respect for their private lives.
84. The Court is of the view that the general approach taken by the Convention organs in respect of photographs and voice samples should also be followed in respect of fingerprints. The Government distinguished the latter by arguing that they constituted neutral, objective and irrefutable material and, unlike photographs, were unintelligible to the untutored eye and without a comparator fingerprint. While true, this consideration cannot alter the fact that fingerprints objectively contain unique information about the individual concerned allowing his or her identification with precision in a wide range of circumstances. They are thus capable of affecting his or her private life and retention of this information without the consent of the individual concerned cannot be regarded as neutral or insignificant.
85. The Court accordingly considers that the retention of fingerprints on the authorities' records in connection with an identified or identifiable individual may in itself give rise, notwithstanding their objective and irrefutable character, to important private-life concerns.
86. In the instant case, the Court notes furthermore that the applicants' fingerprints were initially taken in criminal proceedings and subsequently recorded on a nationwide database with the aim of being permanently kept and regularly processed by automated means for criminal-identification purposes. It is accepted in this regard that, because of the information they contain, the retention of cellular samples and DNA profiles has a more important impact on private life than the retention of fingerprints. However, the Court … considers that, while it may be necessary to distinguish between the taking, use and storage of fingerprints, on the one hand, and samples and profiles, on the other, in determining the question of justification, the retention of fingerprints constitutes an interference with the right to respect for private life."
"43. … The case is in my judgment quite different from the X case [X v United Kingdom, cited above], in which the photographs were taken on and after the applicant's arrest, when the police might well have been expected to do just that. It is possibly closer to the Friedl case [Friedl v Austria, cited above], but in that case there had been a demonstration – a sit-in – where again the taking of police photographs could readily have been expected. In R (Gillan) v Comr of Police of the Metropolis  2 AC 307, para 28, … Lord Bingham referred to: 'an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports'; another instance in which the putative violation of article 8 (if any violation were suggested) consists in something familiar and expected. In cases of that kind, where the police or other public authority are acting just as the public would expect them to act, it would ordinarily no doubt be artificial and unreal for the courts to find a prima facie breach of article 8 and call on the state to justify the action taken by reference to article 8(2)."
"57. There are a number of elements relevant to a consideration of whether a person's private life is concerned by measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectation as to privacy may be a significant, although not necessarily conclusive, factor. A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example, a security guard viewing through closed-circuit television) is of a similar character. Private-life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain …."
"54. On the other side of the scales, the lengthy, perhaps indefinite, retention by the police of the Applicant's photographic images seems incompatible with the broad and elastic formulations of the scope of Article 8(1) considered … above. As each person grows older, photographic images of their appearance at an earlier age will increasingly belong to their inner, private sanctum. The court is of the opinion that a person's physical appearance falls within the personal sphere protected by Article 8, as it is a means of identifying the individual and forging a link between the individual and exclusively private aspects of his life, including family membership and other matters and activities properly to be regarded as falling outwith the public gaze and belonging to a person's private sphere. The photographic images of the Applicant go further than simply displaying his physical appearance at a particular age: they disclose that he was in police custody when a young teenager. Thus they contain, and convey, both his physical appearance and the fact of police arrest and detention (Lord Nicholls' 'thousand words') [a reference to Lord Nicholls' observation in Campbell v MGM Ltd at para  that in general photographs of people contain more information than textual description; that is why they are more vivid; and that is why they are worth a thousand words]. A person's photographic image is, in the words of Baroness Hale, in S and Marper [R (S and Marper) v Chief Constable of the South Yorkshire Police, cited above], 'informational privacy'. Furthermore, it is no less unique than each person's genetic code. It is a fact of life that no two members of society truly share the same physical appearance: even genuinely identical twins are likely to develop differing physical appearances as they grow older."
Whether the interference is justified under article 8(2)
In accordance with the law
"119. In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken – and retained – from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed; in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.
122. Of particular concern in the present context is the risk of stigmatisation, stemming from the fact that persons in the position of the applicants, who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons. In this respect, the Court must bear in mind that the right of every person under the Convention to be presumed innocent includes the general rule that no suspicion regarding an accused's innocence may be voiced after his acquittal. It is true that the retention of the applicants' private data cannot be equated with the voicing of suspicions. Nonetheless, their perception that they are not being treated as innocent is heightened by the fact that their data are detained indefinitely in the same way as the data of convicted persons, while the data of those who have never been suspected of an offence are required to be destroyed.
124. The Court further considers that the retention of the unconvicted persons' data may be especially harmful in the case of minors such as the first applicant, given their special situation and the importance of their development and integration in society. The Court has already emphasised, drawing on the provisions of art. 40 of the UN Convention on the Rights of the Child of 1989, the special position of minors in the criminal justice sphere and has noted in particular the need for the protection of their privacy at criminal trials. In the same way, the Court considers that particular attention should be paid to the protection of juveniles from any detriment that may result from the retention by the authorities of their private data following acquittals of a criminal offence. The Court shares the view of the Nuffield Council as to the impact on young persons of the indefinite retention of their DNA material and notes the Council's concerns that the policies applied have led to the over-representation in the database of young persons and ethnic minorities, who have not been convicted of any crime.
125. In conclusion, the Court finds that the blanket and indiscriminate nature of powers of retention of fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society …."
"58. … However, if Article 8(1) ECHR is engaged, we conclude that the indefinite retention by the Police Service of the Applicant's photographic images, for a minimum period of seven years and potentially for a period of many years, unconnected to any concrete measure or exercise linked to any of the statutory purposes, is plainly disproportionate. We consider that this manifestly fails Lord Steyn's three tests of statutory purpose justification, rational connection with the statutory purpose and minimal interference with the Applicant's right to respect for his private life. The image of using a sledgehammer to crack a barely visible nut springs readily to mind."
(1) No adequate distinction is drawn between the convicted and those who are either not charged (the position of the two claimants) or are charged but acquitted. There is nothing to meet the concern expressed by the Strasbourg court about the risk of stigmatisation of those entitled to the presumption of innocence, or the perception that they are not being treated as innocent. The reasons given by Commander Gibson in support of the individual decisions to continue retention of the claimants' photographs (para  above) underline that concern: notwithstanding that no charges were brought (let alone proved) against either claimant, the reasons rely inter alia on the fact that the allegation against each claimant remains recorded as a substantive crime and the claimant was in each case the only suspect.
(2) Retention of the photographs is on any view for a long period (a minimum of 6 years), is likely in practice to be much longer (given that a scheduled review is due only after 10 years in RMC's case, and there is provision for retention until the age of 100 in FJ's case), and is potentially indefinite.
(3) The particular concern of the Strasbourg court that retention of unconvicted persons' data may be especially harmful in the case of minors applies here too, given FJ's age at the time of arrest. It is plain that the age of the applicant was also one of the factors that led the Northern Ireland High Court to express itself as strongly as it did in JR 27's Application about the application of the proportionality test to the (admittedly different) policy under consideration in that case.
Retention of photographs: relief
"46. In these circumstances, in my view it is appropriate to grant a declaration that the present ACPO guidelines (amended as they have been to exclude children under the age of 10) are unlawful because … they are incompatible with the ECHR. It is important that, in such an important and sensitive area as the retention of biometric data by the police, the court reflects its decision by making a formal order to declare what it considers to be the true legal position. But it is not necessary to go further. Section 8(1) of the HRA gives the court a wide discretion to grant such relief or remedy within its powers as it considers just and appropriate. Since Parliament is already seised of the matter, it is neither just nor appropriate to make an order requiring a change in the legislative scheme within a specific period.
47. … The legislature must be allowed a reasonable time in which to produce a lawful solution to a difficult problem.
48. Nor would it be just or appropriate to make an order for the destruction of data which it is possible (to put it no higher) it will be lawful to retain under the scheme which Parliament produces.
49. In these circumstances, the only order that should be made is to grant a declaration that the present ACPO guidelines (as amended) are unlawful. If Parliament does not produce revised guidelines within a reasonable time, then the claimants will be able to seek judicial review of the continuing retention of their data under the unlawful ACPO guidelines and their claims will be likely to succeed."
The issue concerning FJ's PNC records
Mr Justice Kenneth Parker :