In R (TD) v Commissioner of Police for the Metropolis & Secretary of State for the Home Department  EWHC 2231 (Admin) the Divisional Court found that the retention of an “NFA’d” complaint of sexual assault by the Claimant on police databases for 9 years was not, on the facts of the case, a disproportionate interference with the Claimant’s Article 8 rights.
In October 2004, TD was accused of sexual assault by a woman staying in the same hotel as him. He was arrested. He was interviewed and denied the allegations. DNA and fingerprints were taken. No further action was taken against TD and he had not come to the attention of the police since. Biometric data taken from the Claimant had been destroyed by the time of the hearing. The Claimant’s challenge was to the police’s continued retention of 40 pages of information in relation to the allegations stored as crime reports on the CRIS. Pursuant to the Metropolitan Police’s policy, this information was to be stored for 100 years.
The key question for the Court was how long the records could be retained by reference to TD’s Article 8 rights.
Article 8 engaged
Moses LJ commented that “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”, referring to (R (L) v Commissioner of Police of the Metropolis,  UKSC 3. Moses LJ also referred to the Court of Appeal’s decision in R (Catt) v ACPO and Commissioner of Police of the Metropolis  EWCA Civ 192 that the systematic collection, processing and retention on a searchable database of personal information, “even of a relatively routine kind”, of a frequent protestor involved a significant interference with his Article 8 rights (for which no sufficient justification had been shown).
In balancing the competing interests of the MPS and TD, Moses LJ observed at  that:
“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…But the fact that material is of potential use… 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.”
Moses LJ concluded that the MPS had demonstrated that the use to which the records of the allegation may be put justified their retention for the time being. The retention of the records was not therefore a disproportionate interference with the Claimant’s Article 8 rights.
Important considerations underpinning Moses LJ’s decision were that:
- Only 9 years had elapsed since the allegation was made;
- The record would only be available to those authorised to access the CRIS;
- The record would not be disclosable to the public;
- The police were not prepared to disclose it to a potential employer. In 2010 TD had required an ECRC and the police did not consider it necessary to disclose the information;
- The allegation 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” .
Moses LJ did, however, raise concerns about the lack of a review period in the Metropolitan Police’s policy with respect to retention of information about allegations such as that made against the Claimant. He referred to ECtHR’s decision in MM v UK (App. No. 24029/07) that the retention of information relating to a caution in Northern Ireland 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″.
Moses LJ said that the lack of provision for review in TD’s case:
“…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 [Code of Practice on the Management of Police Information (July 2005)] provides for a review, so too should the Commissioner’s policy” .
No declaration as to the Metropolitan Police’s review period was made because the Court recognised that the Policy would have to be reviewed in light of the recent jurisprudence.
The law in relation to the retention of information about people in police records and the disclosure of those records in response to ECRC applications is in flux. Numerous challenges are being been made to police decisions to refuse to delete information held on individuals or to release that information to putative employers. Some of that litigation may be headed to the Supreme Court.
In short, there are few ‘bright lines’ for the police to apply to the retention of information about individuals that comes into their possession.
The collection, storage, processing and disclosure of that information is likely to engage the Article 8 rights of the individual concerned. Assuming that the police are able to demonstrate a basis in law for retaining the information, the key battleground is whether the information is proportionate for the purposes of Article 8(2). Proportionality can necessarily only be examined on a case-by-case basis. This inevitably means that that the police must divert resources to assessing the proportionality of retention of information for given periods, and that those assessments will be amenable to challenge by way of judicial review.
The decision in TD provides a good example of how the courts will approach challenges to the proportionality of retaining information considering, amongst other things:
- the reason for storing the information i.e. how useful the information will actually be operationally;
- how long the information has (and will be) stored for;
- whether, and how frequently, the retention of the information will be reviewed;
- the risk that the information might be disclosed to the public (eg. in response to an ECRC application).
Finally, an interesting observation was made by both Judges that merits the attention of those charged with reviewing police data retention policies. A simplistic approach to the issue of police storage of personal data is that there are two opposing interests – that of the individual who wishes the information to be stored for as short a period as possible (to minimise the risk of disclosure) and that of the police who wish to store the information for as long as possible (to maximise its crime fighting potential). However, the criminal justice system and society as a whole may also benefit from having a record of allegations an individual has made to the police in the past. Building on Moses LJ’s comments at , Burnett J suggested at  that:
“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.”