Processing of information - Personal data - Police

R (on the application of RMC and FJ) v Metropolitan Police Commissioner and others: Queen's Bench Division, Divisional Court (Lord Justice Richards and Mr Justice Kenneth Parker): 22 June 2012

The first claimant, RMC, was a middle-aged woman of good character. In April 2007, she attended voluntarily at a police station and was arrested on suspicion of an assault occasioning actual bodily harm. She was interviewed, fingerprinted and photographed and DNA samples were taken from her. The Crown Prosecution Service (CPS) subsequently decided not prosecute. RMC sought unsuccessfully to secure the destruction of her fingerprints, DNA samples and photographs. In April 2009, the second claimant, FJ, attended voluntarily at a police station at the age of 12 and was arrested on suspicion of rape.

He was also interviewed, fingerprinted and photographed and DNA samples were taken from him. It was subsequently decided to take no further action. FJ's Police National Computer (PNC) records included reference to the alleged rape. It was listed as one of four matters under the heading 'non-convictions'. Basic details of each matter were given. FJ also made unsuccessful requests for the destruction of the relevant data. The retention and destruction of fingerprints and DNA samples was governed by section 64 of the Police and Criminal Evidence Act 1984 (PACE).

In July 2005, the secretary of state issued a Code of Practice on the Management of Police Information (the Code). Chief police officers were required to have regard to the Code in discharging any function to which the Code related. Guidance on the Management of Police Information (the Guidance) was produced by the National Policing Improvement Agency. Section 7 of the Guidance contained detailed provisions on the review, retention and disposal of police information. The Guidance provided, inter alia, that all records which were accurate, adequate, up to date and necessary would be held for a minimum of six years from the date of creation. The claimants applied for judicial review, inter alia, of the retention of their photographs by the police.

The principal issues which fell to be determined were: (i) whether the retention of the claimants' photographs pursuant to section 64A of PACE and a policy to apply the Code and the Guidance constituted an interference with the claimants' rights to private and family life under article 8(1) of the European Convention on Human Rights; and (ii) if so, whether the interference was justified under article 8(2) of the Convention. A further issue arose as to whether the retention of the information in respect of the alleged rape was a disproportionate interference with FJ's rights under article 8(1). Consideration was given to S v United Kingdom [2009] 48 EHRR 50 (S v United Kingdom) and R (Wood) v Commissioner of Police of the Metropolis [2009] EWCA Civ 414 (Wood).

The court ruled: (1) In the instant case, the retention of the claimants' photographs by the defendant constituted an interference with their rights under article 8(1) of the Convention. In the light of the conclusion in S v United Kingdom that the retention of fingerprints constituted an interference with the right to respect of private life, it was difficult to see how any different conclusion could apply to the retention of photographs. That view was supported by subsequent European case law. The approach in the recent decisions of the Strasbourg court ought to be followed unless such a course was precluded by the domestic authorities. Wood did not assist the defendant's case (see [33]-[36], [38], [40] of the judgment).

R (on the application of Wood) v Metropolitan Police Comr [2009] 4 All ER 951 doubted; S v United Kingdom [2009] 48 EHRR 50 considered; Reklos v Greece (Application No 1234/05) [2009] EMLR 290 considered.

(2) The court was not satisfied that the existing policy struck a fair balance between the competing public and private interests and met the requirements of proportionality. The Code and the Guidance suffered from deficiencies of much the same kind as had led to the adverse finding under article 8(2) in S v United Kingdom. No adequate distinction was drawn between the convicted and those who were neither charged or were charged but acquitted.

There was nothing to meet the concern about the risk of stigmatisation of those entitled to the presumption of innocence, or the perception that they were not being treated as innocent. Further, retention of the photographs was for a long period and was likely in practice to be much longer. The concern that retention of unconvicted persons' data might be especially harmful in the case of minors also applied to the instant case (see [54], [55] of the judgment).

The retention of the claimants' photographs in application of the existing policy amounted to an unjustified interference with their respect to private life and was in breach of article 8 (see [55] of the judgment). S v United Kingdom [2009] 48 EHRR 50 considered.

(3) With regard to the further issue in respect of FJ, a PNC record that did not include the basic history of FJ's involvement with the police would be an incomplete and potentially misleading record. Further, if a similar allegation were made against FJ 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. If it engaged article 8 at all, the interference with FJ's right to respect for his private life was small and plainly proportionate (see [61] of the judgment). That aspect of FJ's claim would be dismissed (see [62] of the judgment).

Stephen Cragg and Azeem Suterwalla (instructed by Hickman & Rose) for the claimants; 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 party secretary of state as the interested party; Gordon Nardell QC and Rory Dunlop (instructed by Legal Director of Liberty) for Liberty as intervenor.