In R (CL) v Chief Constable of Greater Manchester & Secretary of State for the Home Department  EWHC 3333 (Admin), the Divisional Court held that the retention by the police of crime reports which related to sexting incidents in which a schoolboy had allegedly been involved did not breach his rights under Article 8 ECHR.
The decision confirmed that the retention of data by the police in accordance with the prevailing regulatory and statutory data protection framework and relevant guidance was in accordance with the law for the purposes of Article 8(2) whether the alleged offender was an adult or a child.
The duty to have regard to the need to safeguard and promote the welfare of children did not mandate the deletion of data: the best interests of any children concerned was a primary, but not determinative, consideration.
The claimant was alleged to have been involved in three incidents of ‘sexting’ when he was 14 or 15 years old, the circumstances of which were disputed during the proceedings. The first was said to have entailed mutual exchange of sexual images with a female student. Both children were warned about their behaviour, and no crime report was created.
The second incident was said to have entailed another mutual exchange of sexual images with a different female student, but the claimant was then alleged to have passed the female’s image on to a third party. A crime report was created, noting that “all parties fully admit the offence and parents aware”, and it was recorded that it was not in the public interest to pursue. The claimant requested deletion of the information and, when this was refused, he applied for judicial review on the ground that retention breached his Article 8 rights.
In the third incident the claimant was alleged to have asked a third female student to send him indecent pictures of herself, and, when she refused, to have threatened to tell people that they had slept together. The girl did not want to pursue a formal complaint and it was decided, in her best interests, not to inform the claimant or his parents of her allegation at the time. A crime report was created, identifying the claimant as the suspect, and it was recorded that it was not in the public interest to investigate further.
This crime report was subsequently disclosed to the claimant, during a review by the police of the continued retention of the first crime report, leading to a further application for judicial review on the grounds that the creation of the crime report in respect of the third incident, without notifying the claimant of the allegation, breached his rights under Articles 6 and 8 ECHR.
The grounds for the two applications for judicial review were, in summary, that:
(i) recording details of the third incident as a serious sexual offence without informing the claimant or his parents of the allegation was a breach of his Article 6 rights and was procedurally unfair;
(ii) the regime for the collection and retention of data concerning reports of matters that might amount to the commission of a crime by a minor breached Article 8 because it was not in accordance with the law:
(a) there was a blanket and indiscriminate approach to recording personal details without regard to the fact that the claimant was a minor, with no adequate safeguards against arbitrary treatment;
(b) it was not possible to predict with a reasonable degree of certainty whether the information in the crime reports would be disclosed if an application for an enhanced criminal record certificate (“ECRC”) was made;
(iii) insofar as the information was recorded and maintained in pursuit of the legitimate aims of preventing disorder or crime and the protection of the rights and freedoms of others, the adverse impact of retention of the data on the claimant’s right to respect for his private life was disproportionate.
The Divisional Court roundly rejected the claimant’s arguments.
The Court held that it was unarguable that Article 6 ECHR was engaged in the making of the second crime report: the claimant had not been the subject of a criminal investigation, he had not been “accused” of anything, and he was not charged with any crime.
It was not procedurally unfair that the allegation was initially recorded as a crime without the claimant and his parents being informed of it, because the police had to take into account the best interests of the complainant, which, on the facts of this case, the police were entitled to find outweighed other factors. By the time of the later review, it was decided by the police that the claimant now had to be given an opportunity to respond to the allegation, and the requirement for procedural fairness outweighed the complainant’s best interests as they then were. The Court found no fault with this approach.
The Supreme Court’s decision in R (Catt) v Association of Chief Police Officers  UKSC 9;  AC 1065 that retention of data by the police, in accordance with the prevailing regulatory and statutory data protection framework and the relevant guidance, was in accordance with the law for the purposes of Article 8(2) ECHR, applied to child subjects as well as to adults.
The Court was unpersuaded by the claimant’s arguments that the system was unlawful in failing to differentiate between adults and children. The duty under s.11 of the Children Act 2004 to have regard to the need to safeguard and promote the welfare of children did not affect the nature and scope of police functions, but how those functions were to be performed. In that context, it was relevant that police guidance relating to sexting required forces to consider the long-term impact on a child of investigation and prosecution and gave chief officers a discretion whether or not non-conviction information relating to sexting should be disclosed on an ECRC.
The regime provided adequate safeguards against arbitrary treatment:
(i) each element of recording, retaining and disclosing non-conviction information by the police was the subject of intensive regulation and guidance;
(ii) there were myriad safeguards for the subjects of the information to ascertain what information was held and to challenge its collection and/or continued retention.
Given the infinite variety of situations in which a decision might have to made about disclosure of information it was impossible to give any guarantee as to the result of any future application for an ECRC, but this did not render the regime for retention arbitrary: neither Article 8 nor the rule of law required any such guarantee.
The Court upheld the balancing exercise undertaken by the police in determining to retain the data. The information in respect of the second and third incidents had been collected and retained for several purposes permitted by Article 8(2), notably the prevention of crime and disorder and the protection of the rights and freedoms of others, including potential victims of crime in the future. It would be curious, where, as here, the police had not pursued a potentially criminal matter on account of the age of the persons concerned, if they were not permitted at least to retain sufficient information to ascertain whether any pattern of behaviour was forming.
On the facts of the case, the Court found that the balance fell firmly on the side of the public interest in retention. The interference with the claimant’s right to privacy was modest, and retention was proportionate. Regard must be had not only to the best interests of the claimant as a child but also to the interests of potential victims of future sexting incidents involving the claimant.