TD, R (On the Application Of) v The Commissioner of Police of the Metropolis & Anor [2014] EWCA Civ 585

[2014] EWCA Civ 585Case No C1/2013/2205
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(LORD JUSTICE MOSES & MR JUSTICE BURNETT)
Venue Royal Courts of JusticeDate Thursday, 27 February 2014
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE LAWS
LORD JUSTICE JACKSON
LADY JUSTICE BLACK
Between
THE QUEEN ON THE APPLICATION OF TDApplicantv
Between
THE COMMISSIONER OF POLICE OF THE METROPOLIS & ANOTHERRespondentDAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
The Applicant appeared in person for in personMr J Johnson QC and Ms G Wolfe (instructed by Metropolitan Police Services) appeared for Respondent
J U D G M E N T

LORD JUSTICE LAWS:

This

[1]is an appeal with permission granted by Sir Stephen Sedley on 8 November 2013 against a decision of the Divisional Court (Moses LJ and Burnett J:[2013] EWHC Admin 2231) of 25 July 2013, by which the court dismissed the appellant's application for judicial review of the retention by the Metropolitan Police of certain records relating to him.[2]The essential facts of the case are crisply described by Moses LJ in the Divisional Court as follows:
"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 complaint 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 being deleted as part of a programme of mass destruction of samples."
[3]Now that the claimant's biometric data have been destroyed, 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 or involved 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.[4]Notwithstanding the insistent protestations of the appellant to the contrary, it is entirely clear that the biometric data have indeed been deleted. So much is plainly confirmed by the processes described at paragraphs 14 and following of the witness statement of Mr Jennings of the Home Office and by correspondence in the bundle before us, not least a letter from the Treasury Solicitor of 13 May 2013.[5]The process of deletion is required in light of the Protection of Freedoms Act 2012 to which Moses LJ referred. By that Act the Secretary of State is to make transitional provisions for the deletion of biometric data taken before the coming into force of the statute's relevant substantive provisions: see in particular section 25(3)(a). The Act of 2012 was enacted in the light of the Strasbourg decision in S v the United Kingdom [2009] 48, EHHR 50.[6]Mr Jennings confirms at paragraph 19 that a search of 22 April 2013 shows that the appellant's biometric data have been deleted. Accordingly, there remain only the CRIS reports and the PNC record. The CRIS report is a detailed record of the investigation made upon the original complaint. It is available only to Metropolitan Police officers. The PNC record, so we are informed by Mr Johnson QC today, is a much shorter summary of the investigation and contains no facts that are not in the CRIS report. It is, however, accessible to police nationally.[7]The retention of such material has to be considered by reference to the Guidance on the Management of Police Information (the MoPI Guidance) which is issued under the statutory Code of Practice on the Management of Police Information. The Metropolitan Police Commissioner is obliged to have regard to this material pursuant to section 39A of the Police Act 1996. In doing so, the Commissioner has published the Metropolitan Police's own policy in relation to the retention of police information. It is known as the Corporate Retention Review and Disposal Schedule. The schedule provides that in respect of what are called group 1 cases, that is serious specified offences under the Criminal Justice Act 2003, which include such allegations as were made in this case, information is to be retained for a hundred years and then automatically deleted.[8]The MoPI Guidance is in the process of being reviewed. The respondent Commissioner accepts that when that has been done the schedule -- that is the Metropolitan Police policy -- will have to be reconsidered. In the meantime, however, Mr Johnson makes these submissions. First, there is a clear value in retaining the CRIS information. That is robustly supported by the witness statement of Detective Inspector Pryde and is consummate with what was said by Richards LJ in C v the Commissioner of Metropolitan Police [2012] EWHC Administrative 1681:
"It seems to me that a PNC record which 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 failed 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]Mr Johnson secondly submits that the case is to be distinguished from Catt [2013] EWCA Civil 192 as to which the Divisional Court said this at paragraph 11:
"Mr Catt's records had been retained in a database which suggested extremism and the propensity to associate with those who committed violent crimes. The limited information showed no more than that he attended protests organised by a group contesting against the commercial manufacture of weapons. There was nothing to show that this information was of any use to the police at all."
So, it is said, that is an entirely different case; and it is plain in my judgment that the Catt decision by no means overrules or calls into question the conclusion of the Divisional Court in the case of C.[10]Thirdly, it is said by Mr Johnson that in any event in the present case the retained data makes it wholly clear that the appellant was eliminated as a suspect following the investigation and he has been assured more than once that that is so.[11]Fourth, any impact of the information's retention on the appellant's private or family life within the meaning of article 8 of the Human Rights Convention is, in the circumstances, extremely modest.[12]It is clear to my mind that given the reasoning of Richards LJ in C and the submissions for the Commissioner, the retention of information of this kind has an objective utility. Mr D, appearing in person before us today, has vigorously contested the contrary at any rate in relation to this particular case. It seems to me that those objections are not made out. The real question in the case is as to the terms upon which or the circumstances in which the Commissioner may freely retain such information as is in the CRIS report.[13]In the Divisional Court, Moses LJ said this at paragraphs 16-18:
"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 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 [I interpolate, that is MM of the United Kingdom application number 24029/07, decided in Strasbourg on 13 November 2012] 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."
[14]Granting permission to appeal to this court, Sir Stephen Sedley observed: 1. It can be argued with a decent prospect of success that it was not sufficient for the administrative court to hold that the lapse of 'only nine years' justified retention of data 'at least for the time being'. Given that this was an article 8 proportionality issue, a structure that place orders required. 2. The fact that the defendant had no policy at all for systematic review of retained data would have been important and might have been critical to the proportionality of continued retention as the appellant asks how long should he wait."[15]I do not consider that this court is in any position to hold here and now that the CRIS record in this case should be destroyed or deleted. I accept that there are sound reasons why the material should presently be retained. Such records can throw significant light on later events or allegations.[16]The fact that the Commissioner does not at present have in place any policy for the systematic review of retained data in a case like this in which, on the face of it, the material is to be kept for a hundred years is, however, much more troubling. There are plain potential objections to the absence of such a mechanism. That is not merely because of a possible impact on the article 8 rights of affected individuals case by case, (here such an impact may be very modest); there are, in my view, broader considerations.[17]Retention of personal information about individuals by authorities of the State, including the police, has a strategic effect on the balance of power between State and citizen. It may enlarge the State's effective powers and it may limit the confident security of the citizen. That is a prickly path; and our constitution needs to be wary of it. For this reason, quite aside from the consideration of article 8 in individual cases, such retention of information always stands in need of justification. It may, of course, be well justified; but this general point is an important one.[18]Turning to this case, as I have said, the MoPI Guidance is in the process of being reviewed. The present policy retention of the material in a case like the present for a hundred years with no review is, on the face of it, clearly objectionable. It appears over-rigid and not demonstrably proportionate to the legitimate purposes of such retention.[19]It is true that the context here involves much other litigation. MM v the United Kingdom in Strasbourg and T v Greater Manchester police [2013] 1 WLR 2515. That case went to the Supreme Court whose judgment is presently awaited. The practical position in this area is therefore fluid and changing. We are certainly in no position to prescribe the nature or frequency of any reviews that should be conducted; and it may well be unnecessary to require any reviews in certain other classes of case concerning lesser offences where the retention period is much less than a hundred years. In the present class of case, I should have thought that retention for a period of some ten years is not in any event shown to be unlawful. The question is whether we should grant a declaration to the broad effect that retention of such material for a hundred years is unlawful in the absence of any review mechanism whatsoever.[20]Mr Johnson has not today contested the desirability of reviews for such cases, but he has said that the grant or refusal of such a declaration was not the issue which he came here to confront. The case was primarily concerned with arguments about the appellant's biometric data and concerned also with whether the CRIS record should simply be destroyed or deleted rather than with refinements over the desirability or otherwise of reviews.[21]It is true there are indications in the papers that might have put the Metropolitan Police on some warning that the court might be concerned with the issue I have articulated. The judicial review claim form seeks relief not far off such a declaration, although it is not expressed in those terms. There is Sir Stephen Sedley's grant of permission to appeal which I have already cited and there are, of course, Moses LJ's observations about review, albeit the original court declined to grant a declaration.[22]In the event, I am persuaded by Mr Johnson, not without some considerable misgiving, that as the matter stands, it would not be right for this court to grant a declaration as to the need for periodic reviews in a case like the present. It is possible, however unlikely, that retention for a very long period -- I do not by any means say a hundred years -- could be justified without reviews. It may depend on material which we have not examined and about which no submissions have been made to us. It seems to me for what it may be worth that the likely outcome of any forward move in policy in this area will be and ought to be a system in which reviews are regularly conducted, whatever practical difficulties that may involve; but, for the reasons I have shortly indicated, I would not grant a declaration to that effect.[23]In those circumstances, if my Lord and my Lady agree, the appeal will fall to be dismissed. As I have said, the appellant invited the court to make findings to the effect that his biometric data have not been deleted. This is misconceived on the evidence. In addition, the appellant has sought to canvass various other matters, including the legality of his arrest in 2004. Those matters are all far out with the scope of these proceedings. For the reasons I have given, for my part I would dismiss the appeal.

LORD JUSTICE JACKSON: I agree.

LADY JUSTICE BLACK: I agree as well.

Cited in 1 later judgment