England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/07/2013

Lord Justice Moses:

1. Nearly nine years ago, a woman staying in the same hotel as this claimant alleged that he had sexually assaulted her. He was arrested and his DNA sample and fingerprints were taken from him at Hammersmith Police Station. He was interviewed twice and denied the allegations. No further action was taken. By the time of the hearing, the Secretary of State for the Home Department was able to confirm that the claimant's biometric data had been destroyed. But 40 pages of information in relation to his arrest and the allegation are to be retained in the form of crime reports on the Crime Report Information System (CRIS) and a record shall be retained on the Police National Computer until 2104, when the claimant would be 128 years old.
2. Permission to apply for judicial review was granted in March 2013. When the relevant provisions of the Protection of Freedoms Act 2012 are brought into force, it will no longer be lawful to retain the biometric data of those in the position of the claimant. Biometric data are being deleted as part of a programme of mass destruction of samples. Now that the claimant's data have been destroyed, there is no live issue and this application concerns only the records to which I have referred. The claimant has described the great anxiety and distress the retention of the information has caused him. He has not come to the attention of the police as being suspected of involvement in any offence since the allegation was made on 17 October 2004. In 2006, he was told, through his MP, that the information would be removed. In 2010, when he required an enhanced criminal record certificate, the police told him that they did not believe it was necessary to disclose the information and did not do so.
3. The retention of this information is governed by Metropolitan Police policy contained in its Corporate Retention, Review and Disposal Schedule. This policy is derived guidance promulgated under the statutory Code of Practice on the Management of Police Information (July 2005). By section 39A of the Police Act 1996, the Commissioner is required to have regard to the statutory code of conduct. Under the Guidance the information will be retained until the subject is 100, with a review to ensure adequacy and necessity every 10 years. The Guidance distinguishes between different types of offence. Records are retained for a minimum period of six years, with a requirement to review at periods dictated by the type of offence (p.84). The review schedule asks whether the retention of the information is proportionate and still necessary for police purposes (p.161). The Guidance identifies features of the review process, and "critical information areas" (22-23). The policy relating to reviews acknowledges that:

"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…" (93)

4. It gives the examples of a murder where death turned out to have been from natural causes, or a proved malicious accusation, in which case it provides that the records must be updated so as to record what actually happened. It continues:

"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" (93)

5. But the Metropolitan Police's own policy (24 August 2012) in respect of Serious Specified Offences, under the Criminal Justice Act 2003, (under Group 1), into which category this allegation fell, merely provides for retention, without review, for 100 years from the date of creation. This is, so it contends, necessary, following research published in a UCL Academic Report of 17 September 2009, Management and Retention of Police Information.
6. The essential question in this case is how long the record may be retained. This will be resolved by striking a balance between the extent of interference, if any, with the claimant's rights enshrined in Article 8 of the European Convention on Human Rights and the use to which the police may legitimately put the information.
7. There was and could be no dispute but that the retention of the record of this allegation could amount to an interference with the claimant's private life and that, accordingly, Article 8 was engaged (R (L) v Commissioner of Police of the Metropolis, [2009] UKSC 3, [2010] AC 410 [27]). Disclosure, as Lord Hope acknowledged, is likely to affect a person's private life. But in the instant case the Commissioner was only prepared to accept that any interference was small.
8. This submission rested on Richards LJ's conclusions in R (C) and (J) v Commissioner of Police of the Metropolis [2012] 1 WLR 3007 in relation to the claimant J's PNC record of an allegation of rape which had, by the time of the judicial review application, been held for less than three years:

"It seems to me that a PNC record that did not include the basic history of J's involvement with the police would be an incomplete and potentially misleading record. Moreover, if a similar allegation were made against J in the future, it would be profoundly unsatisfactory if it fell to be considered without knowledge of the earlier allegation and the arrest and investigation to which it gave rise. I am satisfied that retention of this kind of information in the PNC record is justified on any view. If it engages article 8 at all, the interference with J's right to respect for his private life is small and is plainly proportionate."

9. C was primarily concerned with the retention of photographs, following the decision of the European Court of Human Rights in S v United Kingdom [2008] 48 EHRR 1169 in relation to biometric data and the Supreme Court's adoption of the ruling that indefinite retention of DNA and fingerprints was unlawful (in R (GC) v Commissioner of Police of the Metropolis [2011] 1 WLR 1230). Richards LJ concluded that the policy in relation to the retention of photographs was as objectionable as that which related to biometric data in S. He drew attention to the inadequate distinction between those convicted, those not charged and those charged but acquitted and to the potentially indefinite period of retention under the relevant MoPI Code and Guidance [54]-[55].
10. Since C the Court of Appeal has concluded, in R (Catt) v ACPO and Commissioner of Police of the Metropolis [2013] EWCA Civ 192, that the systematic collection, processing and retention of a searchable database of personal information, "even of a relatively routine kind" of a frequent protestor, involved a significant interference with his rights enshrined in Article 8. No sufficient justification had been shown [44].
11. It is important to contrast the nature of the records retained in relation to Mr Catt and the record of the allegation in the instant case. Mr Catt's records had been retained in a database which suggested extremism and a propensity to associate with those who committed violent crimes [36]. The limited information showed no more than that he attended protests organised by a group protesting against the commercial manufacture of weapons [37]. There was nothing to show that this information was of any use to the police at all [44].
12. More recently, in MM v the United Kingdom (App. No. 24029/07, 13 November 2012, final 29.4.13) in what is now a final judgment the Fourth Section of the ECrtHR, found that the retention of information relating to a caution, under the Northern Irish equivalent of MoPI, was a breach of Article 8 in the absence of :

"a clear legislative framework for the collection and storage of data and the lack of clarity as to the scope, extent and restrictions of the common law powers of the police to retain and disclose caution data. (The Court) further refers to the absence of any mechanism for independent review of a decision to retain or disclose data, either under common law police powers or pursuant to Part V (of the Police Act 1997) [2006]". [206]

13. Mr Johnson QC suggested that it was premature to reach any concluded view as to where the balance should be struck between the interference to the claimant and the advantage to the police. In light of recent Strasbourg authority it was inevitable that the rules in MoPI and the Metropolitan Police's own policy will have to be looked again. Only nine years have elapsed since the allegation: too short a time before it can be said with any confidence that the records are of no use.
14. It is necessary to be cautious as to how far the considerations of the use to which the records may be put take the Commissioner. Every record of an allegation of crime may be of use for the indefinite future, as the research to which the Commissioner refers demonstrates. This was the very argument on which the United Kingdom Government relied in Strasbourg in S, relying on the "inestimable value" of the data [91]. But S shows that the fact that material is of potential use, and, certainly, of greater use than in Catt, is not dispositive. Weighed against that there remains the discomfort or worse that any citizen must feel when the state retains personal information about him, particularly when it relates to an allegation, however unfounded, of a sexual nature. In S, it was recognised that the mere storage and retention of the data amounted to an interference within the meaning of Article 8 (para 67).
15. In the instant case, whilst I must emphasise that I am not for a moment suggesting that the allegation had any foundation whatever, it is necessary to recall that it was of a sexual nature and thus had potential use should a similar allegation be made by the same complainant against someone else or another complainant make a similar allegation against this claimant. The record of the allegation may, therefore, be of some use in the future. The record will, moreover, only be available to those who are authorised to access the CRIS. It is not disclosable to the public and the police have already shown that they are not prepared to disclose it to a potential employer for the purposes of an enhanced criminal record certificate.
16. In my view, now that only nine years have elapsed and in the knowledge that access to the information is restricted to those who seek to investigate a crime it seems to me, like Richards LJ in J, that the Commissioner has demonstrated that the use to which the records of the allegation may be put justifies their retention, at least for the time being.
17. But I do think that that conclusion must be subject to an important qualification. As MM teaches, such retention should be subject to review. No provision for any review has been made. This seems to me a significant flaw in the policy. There must be provided an opportunity for review in the light of the lapse of time without any use to which the record might be put. The MoPI Guidance provides for a review, so too should the Commissioner's policy.
18. Since the records have only been retained for about nine years so far and in the context that the policy will have to be considered again in the light of recent jurisprudence, I would not consider it necessary to make any declaration as to review. The Commissioner referred, in his detailed grounds of defence, to the power of the Information Commissioner to take enforcement action, under Part V of the Data Protection Act 1998, should the retention of the data prove inconsistent with data protection principles. But it was not suggested in the previous jurisprudence to which I have referred that that was an adequate alternative remedy and the argument was not advanced with any vigour in these proceedings. I would refuse an order to quash the decision to refuse to delete the records.

Mr Justice Burnett:

19. I agree. The time has not come when it can be said that the retention of the material records relating to the claimant for the purposes identified by Moses LJ is a disproportionate interference with his article 8 rights. The domestic and Strasbourg case law has been fast developing. Public authorities are catching up with the jurisprudence. When considering the policy for review and retention the interests at stake may be wider than the rights of the individual concerned and the detection of crime. The striking feature on the claimant's account of the allegation in this case is that it was fabricated altogether. It is not uncommon in cases alleging sexual impropriety for evidence of a complainant's history of previous unfounded allegations, disclosed by the prosecuting authorities, to be essential to ensure a fair trial.