T, R (on the application of) v The Commissioner of Police for the Metropolis [2012] EWHC 1115 (Admin)

[2012] EWHC 1115 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 27 April 2012

Before

THE HONOURABLE MR JUSTICE EADY

Between

Case No: CO/13202/2010Claimant

THE QUEENClaimant

on the application ofClaimant

TClaimant

THE COMMISSIONER OF POLICE FOR THE METROPOLISDefendant

Case No: CO/414/2011Claimant

THE QUEENClaimant

on the application ofClaimant

RClaimant

THE COMMISSIONER OF POLICE FOR THE METROPOLISDefendant

Paul Bowen QC (instructed by Bindmans LLP) for T

Stephen Cragg (instructed by Christian Khan) for R

Jeremy Johnson QC (instructed by Metropolitan Police Legal Services) for Defendant

Hearing Hearing dates: 21 & 22 March 2012

Judgment

Mr Justice Eady :

Introduction

[1]In these conjoined applications for judicial review, for which permission was granted by Collins J, the common issue arising is police practice in relation to warnings given to those have been accused of harassment or stalking by means of what is known as a Prevention of Harassment Letter or a Police Information Notice. It is suggested by the Claimants that in certain respects the current practice may not accord with data protection principles and/or the right to respect for a private and family life enshrined in

Article 8 of the European Convention on Human Rights

and Fundamental Freedoms and/or common law requirements of procedural fairness.

[2]I need briefly to refer to the factual background in each of the cases.

The facts relating to Ms T

[3]In the case of T, she lives in a block of flats in which she is a close neighbour of a man whom I shall refer to as Mr B. In the summer of 2009, T had complained to the anti-social behaviour team attached to the housing association which manages the block. She claimed to have suffered from excessive noise emanating from Mr B’s flat over a number of weeks. She felt vulnerable because, after the complaint, the noise appeared to increase. Again she complained to the anti-social behaviour team.

[4]An incident seems to have occurred on 20 July 2010, when T was leaving her flat. She saw Mr S, a friend of Mr B, on the balcony outside his flat and he said something to her which she interpreted as “black bitch”. On her account of the matter, she “tutted” her disapproval and Mr S “tutted” back. T thought his behaviour insulting and on 21 July 2010 reported the matter to the anti-social behaviour team. At that point she was informed that Mr S had also reported the incident and made a complaint against her. He had even reported the matter to the police.

[5]According to the evidence of a detective sergeant in the Community Safety Unit, a complaint was made at 8.00 a.m. on 20 July 2010 to the effect that T came out of her front door and blew him a kiss with the comment “you faggot”. This appeared to cause Mr S some distress. Mr B had also stated that he had experienced insulting remarks on earlier occasions from T, relating to his sexuality, but had never troubled to report it before. The police crime report recorded that “this is a homophobic crime and he is extremely distressed by it”. It also recorded that police officers had apparently attended T’s home address but had failed to make contact.

[6]According to the officer, various steps were taken on 21 July 2010 which included liaising with the Safer Neighbourhood Team regarding a “FIHW” (i.e. a first instance harassment warning) being issued at T’s home address. Also there was to be “victim contact, support and referral to voluntary agencies if required”.

[7]On 6 August 2010, the detective sergeant requested the investigating officer to attend T’s address and issue the warning. No contact had been made with T in the meantime. It appears that there was some delay and it was finally delivered by PC Paly Vera, still without having spoken to her at any time, on 7 October 2010. This is the document which is the subject of T’s current application. It gave her name, address and date of birth and described the allegation that had been made against her as follows:

“On the 20/07/2010 you went outside Flat 5 and told a visitor who was making a phone call ‘YOU FAGGOT’.”

[8]It was pointed out that harassment is a criminal offence and that any such acts on T’s part could result in her arrest and prosecution. It was added:

“A copy of this letter … will be retained by police but will not be disclosed now to the victim. However a copy could be disclosed in any subsequent criminal proceedings against you as proof that police have spoken to you about this allegation. This does not in any way constitute a criminal record and will only be referred to should further allegations of harassment be received.”

[9]I should record that T denies the allegation made against her completely and says that any such behaviour on her part would have been completely out of character.

[10]The letter was undated and gave no contact details and T was very upset by it; in particular, she was concerned that she had been given no opportunity to respond to or to refute the allegation in question (despite the claim in the notice that she had been “spoken to”). She would have liked to explain the background of the complaint she had made about Mr B and the surrounding circumstances. She commented in one of her witness statements that she felt as though she had been branded a criminal from the outset.

[11]It does not seem that the police were entirely neutral in the matter, since the detective sergeant said in evidence that:

“It was my assessment of this report that previous homophobic comments had been made towards the complainant and/or the complainant’s friend by the same female occupant and that on 20/07/2010 the same occupant had ‘kissed her teeth’ at the complainant and called him a ‘faggot’. Clearly this use of words is homophobic … ”

It is hardly surprising that T is of the view that the police had made up their minds against her. She is especially concerned that she had no opportunity to refute the allegation before the warning notice was issued.

[12]It is also said that such a warning notice has potentially serious implications. It seems that one of the functions of such warnings is to lay the ground, in the event of later complaints of harassment, for establishing a “course of conduct” within the meaning of the Prevention of Harassment Act 1997. They may also be relied upon to refute any evidence from a person charged with harassment that he or she had been unaware that the conduct in question was causing offence.

[13]Because of the dispute between T and Mr B, she was concerned that there might be further unfounded allegations made by him against her to similar effect and that the warning notice would at that stage be produced as evidence establishing a course of conduct against her. It is something that could easily be taken into account by the CPS when determining whether to bring a prosecution against her. Furthermore, in accordance with standard police practice, the warning notice would be retained for a period of at least seven years. There is also concern that, at any time during that period, there would be a risk of the warning, and the underlying allegations by Mr B, being referred to as part of an Enhanced Criminal Record Certificate (“ECRC”): see s.113B(4) of the Police Act 1997. If this were to happen, it could jeopardise, for example, a future job application by T or the opportunity to do voluntary work. According to the Defendant’s evidence (that of Mr Graham Morris, Head of Operational Informational Services), such notices can be disclosed when providing an ECRC, although only where, in the chief officer’s opinion, the allegation might be relevant and ought to be included in the ECRC. The relevance test itself may be sub-divided into two stages. The officer concerned would have to be satisfied both that the allegation might be true and that it was sufficiently relevant: see the observations of Lord Hope in R (L) v Metropolitan Police Commissioner

[2010] 1 AC 410

at [39]. This obviously leaves a good deal of scope for individual judgment. Accordingly, the concern would be likely to remain at the back of T’s mind throughout the period of retention and the two stage test would, so far as it goes, offer little in the way of reassurance.

[14]After the hearing had concluded, I was provided with further evidence from T’s solicitor. This referred to question 55 on the form which has to be completed by anyone seeking a criminal records certificate. This seeks to elicit information from applicants as to any warnings received. It is suggested that this would in itself be an inhibiting factor for anyone who has received one of these warning notices. There is force in this argument. By reason of the very lack of clarity in the status of warning notices, many people are likely to come to the conclusion that they would have to be disclosed. It seems that this is not the intention (see below at [50]), but there needs to be clarity.

[15]According to the detective sergeant, it is clear that Mr S was told that the warning notice had been sent, although it was not the local practice to provide a copy to “the victim”. It is obvious that in circumstances of this kind there would be scope for a victim to pass the word around, so that it could become common knowledge that the person concerned had received a warning.

[16]Harassment warnings are addressed in Practice Guidance which was issued in 2009 by the National Policing Improvement Agency (“NPIA”), which is a body established by the Police and Justice Act 2006, on behalf of the Association of Chief Police Officers (“ACPO”). It is called “Investigating Stalking and Harassment” and its purpose is to assist policing in the United Kingdom generally by offering “practice advice”. It is not of statutory force and the extent to which it is followed seems to vary somewhat according to the discretion of the chief officers of police.

[17]It is important to note in this context that the Practice Guidance contains the following passage at paragraph 3.9.2:

“Before a police information notice is given to a suspect, this process should be explained to the potential victim and a copy of the notice given to them.”

Thus there is, to say the least, uncertainty over whether copies are generally supplied to “victims” or not.

[18]It is T’s objective, against this background, to have the warning notice expunged from police records and a declaration granted to the effect that it should never have been issued without obtaining her comments or, at least, by making realistic efforts to obtain her reaction before the decision was taken to serve it. It has to be recognised that the notion of “realistic efforts”, however, is elastic and uncertain.

The facts relating to Dr R

[19]The other Claimant, Dr R, is a man of good character who happened to have been involved in a relationship with a woman, to whom I shall refer as Ms A, for some 15 months. It was rather an on/off relationship and during the periods when they were not in immediate contact, there would be regular communications by way of text messages.

[20]As I understand it, by January 2010 the couple were not seeing each other any more, but R sent her a text on 10 January asking how she was. The following day, he received a telephone call from a police officer saying that an allegation of harassment had been made by Ms A. Unlike T, therefore, R was given the opportunity to comment. His response was to say that he was perfectly content not to contact her again and he made an appointment to attend at the police station the following day.

[21]On his arrival, R was told by another officer that he was under arrest. The officer concerned, Det Con Murphy, has produced a witness statement in which he says he had been instructed to arrest R. He explained to R that Ms A had claimed that he had been making nuisance telephone calls (i.e. in the plural) and he was under arrest for harassment “so that you can be interviewed on tape”. The custody record identifies the reasons for detention as “to obtain evidence by questioning” and the grounds of detention as being “to interview on tape and consider disposal options”.

[22]Some hours later, between 12.45 and 1.20 p.m., an interview took place. It emerged that Ms A had claimed that she told R that he was to stop making contact with her in October 2009. R denied that this was so. The officer told him that it was accepted that there had been no allegations that the communications he made were malicious. His account was recorded in the course of the interview as follows:

“He stated that he and the victim were going out for a few years and that the victim has got mental health issues in relation to an eating disorder she had. He stated that he has been in touch with her because he cares about her welfare and he wants to make sure she is ok. He stated that [he] has had never been specifically told (sic) by the victim to leave her alone and not to contact her.”

[23]Conditional bail was granted to R at 3.20 p.m. on 12 January 2010 and he was bailed to return on 26 February. In due course, however, there was a bail cancellation notice which informed him:

“You are no longer required to surrender to bail at the time and date shown. The reason for cancelling your bail is 1st Instance Harassment Notice served.”

[24]It seems that on 2 February 2010 an “allegation of harassment form” was served on R and this recorded the nature of the complaint:

“That you contacted [A] on a number of occasions after you have been specifically told by her not to and she instructed you to delete her contact details from your phone on 09/12/2009. [A] has told the police that she does not want to hear from you again and any contact you make with her further to this notice could amount to a criminal offence.”

[25]Once again, the form contains the statement that the Metropolitan Police Service makes no comment as to the truth, or otherwise, of these allegations at this stage. It is added that:

“This information is being brought to your attention in the spirit of crime prevention and to make clear to you that this allegation has been made.”

On the other hand, a similar warning was given as in the case of T:

“It is important that you understand that should you commit any act or acts either directly or indirectly that amount to harassment, you may be liable to arrest. A copy of this notice can be produced if necessary in any subsequent criminal proceedings against you.”

The document records that it will be retained for seven years.

[26]Certain matters emerge from the CRIS records which have been disclosed. On 11 January 2010 there was an entry:

“As the risk level is standard i contacted the S [i.e. the “suspect”] via the given mobile telephone number and arranged he attend the front office at WALWORTH road Police Station 11/01/2010 @ 15:00 hours, so that this matter can be resolved.”

[27]On 26 January, there was an entry to the effect that the matter should be “no crimed” as there was “no direct instruction” to R that he should “leave her alone”. It was noted that “This will be suitable for a harassment warning”.

[28]There is an entry on 27 January 2010, to the effect that there was nothing “malicious” in R’s communications with A, and that he “only sent texts asking to go the gym and asking how she was … I cannot see any offences. However, it would be appropriate to issue 1st HW … Report shown no crime”. Ms A had told the police earlier that she had asked R to delete her details from his mobile, but she also accepted that she had not made it clear that R was no longer to communicate with her. Moreover, he had already told the police before he was bailed on 12 January that he had no intention of contacting her again. (“He said that now he knows, he will not contact her again”.) If it was right to register “no crime”, the question arises why a warning was appropriate at all. The communications up to that point would hardly provide even the first step in a “course of conduct” amounting to harassment (as the 27 January entry appears to confirm). That is because the information the police had been given did not include any clear statement from A to the effect that he had been told in clear terms that he was not to make contact with her.

[29]On 23 December 2010, R’s solicitors wrote a pre-action protocol letter criticising the fact that the form had been issued and suggesting that it was disproportionate and a breach of R’s right to respect for private life for it to be retained. A request was made that both the issue and retention of the document should be reviewed. The stance of the Defendant was made clear by way of letter dated 4 January 2011:

“I can now confirm that, having considered your request and the full circumstances in which your client was issued with the Notice, the Notice will not be quashed and that the records held in relation to the said Notice, will remain on the police national computer. I hope this clarifies the defendant’s position.”

Further clarification emerges from the detailed grounds:

“The Harassment Letters will be retained for seven years and thereafter will automatically be deleted from the system.”

[30]Against those backgrounds, I will now address the legal framework relevant to the issues I have to determine.

The nature of the legal challenges in outline

[31]The starting point is that the warning notice is not itself a statutory concept, although the practice of issuing them has arisen as a way of implementing the legislative intentions underlying the Protection from Harassment Act.

[32]When Collins J gave permission and directed that these applications be listed together, he referred to a challenge to “the system”. It is appropriate to consider exactly how the challenge is focused in the claim forms and grounds.

[33]By the time of the hearing, it had become clear that T and R challenge not only the decision to issue and serve a warning notice but also the retention of the information. There was some dispute between Mr Johnson and Mr Bowen as to whether T had notified an intention to challenge the retention of the underlying information (as opposed to the retention of the warning notice itself). The debate concerned the interpretation of the words in the claim form “ … and the ongoing retention of that notice, and information about it”. I need not resolve that dispute, as I intend to address the complaint about retention of underlying information in any event. (I was also told that R is also pursuing a private law claim in the county court alleging wrongful arrest and detention.)

[34]The Practice Guidance at paragraph 3.9 contemplates circumstances in which a charge, caution or prosecution would not be possible. For example, it is suggested:

“This may be because actions complained of were reasonable and lawful and adequately explained by the suspect, or the report may be of a single act which does not constitute a course of conduct. Where this is the case, relevant records should be kept, e.g. a non-crime incident record … ”

As I understand it, the purpose of this passage is to give helpful advice rather than to prescribe any exhaustive definition. As so often, the facts of the cases now before the court do not fit easily into one or other of the “boxes”. Although, for example, I am asked to view the allegation against T as a report of “a single act”, when one combines the allegations of S and B they would appear to reflect a series of supposedly “homophobic” remarks. Also, regarding R, I am invited to conclude that there was a clear cut-off point when R had it spelt out to him by a police officer on 12 January that he was no longer to contact Ms A. But it seems that she was under the impression that she had told him, as early as the previous October, that she wished to cease contact, and/or on 9 December that he was to delete her contact details from his mobile phone. Nothing is quite so clear cut, therefore, as might at first appear.

[35]It is said by Mr Johnson QC, on behalf of the Commissioner, that the receipt of such a warning in itself serves a useful social purpose in the discouragement and reduction of this type of crime; on the other hand, it does not impact upon the rights of the recipient. He argues that neither the serving of such a warning, nor its subsequent storage, involves any determination of where the truth lies. It thus gives rise to no public law entitlement. Nor does it impinge either upon a citizen’s rights under Article 8 or upon any right under common law to procedural fairness. Since no trial process is involved, the common law principle of audi alterem partem does not come into play.

[36]It is claimed on the other side that the warning notice system has certain consequences for the recipient which do engage legal rights.

[37]First, it is common ground that as a matter of practice such notices are stored by the police for seven years. This information appears on the bottom left hand corner of the notice itself, but so far it has not proved possible to identify the source of this practice. It is relevant to note that the underlying crime report (i.e. the record of the complaint which led to the notice being served) is similarly retained. It is argued by Mr Johnson that the mere storage of allegations cannot give rise to any infringement of the subject’s Article 8 rights. It will be necessary to consider, however, a number of domestic and Strasbourg authorities in order to see whether this is so.

[38]Secondly, there is the suggestion that the service and storage of the notice signify, in practice, that the police have come to a conclusion that the allegation is true. It is certainly the case that a notice is not automatically served every time a complaint is made. Where the relevant officers decide that the complaint was unfounded, such a notice will normally not be served. On the other hand, according to the Commissioner, the fact that a notice is served does not mean that any decision has been made. They will often be served in circumstances where the police are not in a position to form a view on whether the allegation is true. The only reasonable interpretation of such a letter is that an allegation has been made which may or may not be true.

[39]Thirdly, as I have said, one of the principal purposes of the notice system is to log complaints with a view to establishing a course of conduct if any further complaint is made later. There is obviously an argument that, for this purpose, it would hardly be necessary to maintain the record for seven years, since two incidents seven years apart are unlikely to amount to a course of conduct in any common usage. That point will need to be addressed later. For the moment, I am recording the issues in outline. The suggestion has been made by T that the warning notice would itself “stand as evidence” of harassment. That cannot be right. In itself, it can only demonstrate, if it becomes relevant, that a warning was given. The original act(s) would still have to be proved in the normal way. The Commissioner does not suggest otherwise.

[40]Fourthly, one of the main concerns is that the information may find its way into an ECRC in accordance with s.113B(4) of the Police Act 1997. The apprehension is understandable, given the scope for judgment and discretion on the part of different police officers in different parts of the country. Yet Mr Johnson is entitled to point to the lack of any evidence of such a disclosure ever having taken place hitherto. Moreover, his client has adduced positive evidence to the contrary; it is said that the information in these two cases could not fulfil the criteria for inclusion in a certificate: see [13] above. There may be little comfort in this assurance, however, since “relevance” is a somewhat elastic concept. It is perhaps more important to note, however, that the mere retention of the notices themselves would make little difference, since there is almost always going to be the underlying crime report containing similar information. Mr Bowen sought to argue, however, that the remedies the Claimants are seeking should extend to the crime reports themselves. That would seem to have implications far wider than harassment cases.

[41]Mr Johnson made a number of points as to the necessity for retaining records for a period of time. There is always the possibility that further evidence will come to light which would require a review of the original material in order to see whether it is appropriate, after all, to bring criminal proceedings. It is sometimes the case that the person who is the subject of an allegation of crime becomes involved in some further potentially criminal acts. The report which has been retained of the earlier incident will, or may, assist in the investigation of the later allegation.

[42]It is also said that the retention of crime reports is necessary to assist in the compilation of statistics as to the incidence of different types of crime in different areas, although it is perhaps questionable to what extent this task is assisted by the retention of mere allegations and, in particular, where the allegations themselves would not establish a completed criminal offence.

[43]Reference was made to the guidance of the NPIA on the Management of Police Information (2nd edn, 2010) at para 7.7:

“The retention of information relating to criminal activity and known and suspected offenders allows the Police Service to develop a more proactive approach to policing. By contributing to the identification of criminal patterns and threats and helping to prioritise the subsequent deployment of policing resources, information retention assists forces to prevent and detect crime and protect the public.”

[44]Finally, the point was made that the police need to keep such records against the possibility of having to deal with a complaint by a member of the public, based on a supposedly inadequate response to his or her original report to the police; or having to respond to civil litigation, such as that brought by Dr R now pending in the county court.

[45]It is not obvious that any of these police purposes would necessitate the provision of a copy of such a notice to the complainant (generally referred to in police parlance as the “victim”).

Is there a current settled practice for issuing a warning notice?

[46]I must ask whether there was unfairness in issuing and serving either of the Claimants with the warning notice. An important preliminary question in that context is the scope of investigation that has to be carried out prior to that stage and, correspondingly, the extent to which, as part of such investigation, it is necessary to explore the allegation with the person accused and to give him/her an opportunity of responding.

[47]Both the NPIA guidance and the Defendant’s own policy recommend against serving such a notice where the allegation has been shown to be unfounded. It is clear that, once it has been served, retention policy generally is such that it is going to be lying around for a long time. It is surely right, therefore, that some element of discrimination should be applied at the outset to ensure that it is a necessary step to take. It cannot be appropriate to give notice of what are potentially quite serious allegations in a routine way. When measured against the police purposes that are supposed to be advanced by this procedure, one can readily see that the service of such a notice, where the allegation can already be seen to be baseless, or to give rise to no realistic risk for the future, is not going to be of any real use. It will simply clutter up the system to no advantage. Against this background, therefore, I need to focus on the extent to which it is necessary to interview the suspect prior to serving a notice. Not only would it seem to be fair to the accused person to do so, but it would be a significant factor in helping the police officers to decide whether the allegation is or is not well founded. Indeed, some of the available guidance appears to suggest that a notice should not be served until the police investigation is complete. Yet it has to be said that none of the evidence is unequivocal on the point nor of binding legal force.

[48]The Practice Advice contemplates that suspects should be approached. What is more, the evidence in this case includes the outcomes of requests to other forces around the country under the Freedom of Information Act 2000. These bear out that it is common practice generally.

[49]I naturally recognise that this cannot be a universal rule, since there may be difficulties in making contact – not least because the suspect may in some cases be making himself scarce. Nevertheless, genuine and determined efforts to interview the person would seem to be appropriate.

[50]It is provided at paragraph 3.9 of the Practice Advice as follows:

“All allegations of harassment should result in an initial police investigation in accordance with this Practice Advice (see 2 Initial Police Response to Harassment). Where there is sufficient evidence that an offence has been committed and the public interest test is met, the CPS will generally proceed with a prosecution (see 3.7 Pre-Charge Advice and Charging and 3.8 Crown Prosecution Service). When the police investigation is complete, there may be circumstances in which a charge, caution or prosecution is not possible. For example, there may not be sufficient evidence of a course of conduct which breaches the PHA (see 1.3 Applying the Protection from Harassment Act 1997). This may be because actions complained of were reasonable and lawful and were adequately explained by the suspect, or the report may be of a single act which does not constitute a course of conduct. Where this is the case relevant records should be kept, e.g. a non-crime incident recorded according to national and local guidance (see 1.7 Crime Recording and Management of Information). A suspect does not need to be informed by the police that their behaviour may constitute a criminal offence before the PHA can be applied (see 1.3 Applying the Protection from Harassment Act 1997). The terminology of ‘warnings’ and ‘orders’ should be avoided in the context of police action in relation to harassment. Such terminology may be misinterpreted by victims, suspects and others as constituting formal legal action. There are some circumstances in which it can be useful for the police to inform a suspect verbally and/or in writing that their alleged actions may constitute an offence under the PHA (described here as a police information notice).”

[51]In paragraph 3.9.2 the following guidance is offered:

“The use of a police information notice will not be appropriate when an investigation has established evidence of a course of conduct under the PHA. Where the victim is unwilling to support a prosecution or there are other elements of the case which mean that the CPS has decided not to continue with the prosecution, the CPS should be consulted about any further action which could be considered. This could, for example, be a letter from the CPS to the victim or suspect to explain this decision not to prosecute, and to clarify the requirements of the PHA. Individuals should not be issued with notices relating to behaviour which would not constitute a breach of the PHA, even if it were to be repeated and then form part of a course of conduct. In general, the issuing of police information notices will not be helpful when dealing with entrenched disputes such as those between neighbours (see 1.4.11 Neighbour Disputes), although they can be useful at an earlier stage to make the parties aware that their actions may constitute breaches of the PHA if continued. There may be situations where there is not a reasonable explanation for the behaviour complained of, or the explanation given is in doubt, and the police will need to consider taking further action by issuing a police information notice. This will usually be at the early stage of a situation when there is no evidence that an offence of harassment has occurred (i.e., a course of conduct has not been proved). The suspect may appear to be genuinely unaware of the provisions of the PHA and that their actions could constitute a criminal offence. Early intervention by using a police information notice may prevent the behaviour escalating into harassment. Even if further harassment is not prevented, the delivery of the notice could be relevant evidence in future criminal or civil proceedings to show that an individual knew that their conduct could amount to harassment under the PHA. Any decision to issue a police information notice should be authorised by a supervising officer. Before a police information notice is given to a suspect, this process should be explained to the potential victim and a copy of the notice given to them. In particular, it should be explained that the police information notice is not a court order and is simply information for the suspect. The victim should be informed that the only way it would be possible for a court order to be granted at this stage would be by a private civil case brought by the victim, and the victim could seek independent legal advice about this from a solicitor (see 1.3.8 Civil Remedies Under the Protection from Harassment Act 1997 and 2.7.7 Civil Remedies Available to the Victim).”

One could be forgiven for thinking that this guidance is less than clear when one bears in mind the need to apply it, on a practical basis, in an infinite variety of situations.

[52]To add to the complexities, the Defendant has adopted a specific policy and standing operating procedures (“SOP”), a copy of which was put in evidence before me. This seems to go further than the Practice Guidance quoted above, in that it emphasises that a warning notice should only be issued at the end of a thorough investigation:

“Prevention of Harassment Letter (Form 9993) It should be noted that, in some cases, the suspect may be unaware that their attentions are unwelcome to the victim, or of their potential criminal liability. Conversely, a suspect may try to use such ignorance as an excuse for their activity. While the suspect’s real intent may not easily determined by an investigating officer, in cases where they are genuinely unaware, early intervention by use of a police warning could be sufficient to prevent further harassment. Where a suspect has claimed ignorance, the delivery of the warning will be relevant evidence to prove that they knew their conduct amounted to harassment should any further incidents take place.” [I interject to point out what appears to be an inconsistency between these suggestions that a warning notice could be served where harassment has already taken place and, on the other hand, the Practice Guidance which says that this “will not be appropriate”.] “The police should warn a suspect whenever a first allegation of any harassment is received and if, following a thorough investigation, there is insufficient evidence available to establish a course of conduct or prove another substantive offence. A warning may also be used when the conduct could appear normal to others but causes the victim harassment, alarm or distress (for example, sending the victim flowers every week). The warning should be sufficient to advise the suspect that harassment, alarm or distress has been caused to the victim (or that this may be caused should the conduct continue) and that any further conduct is likely to amount to a criminal offence. A Prevention of Harassment Letter (Form 9993) must be used to issue the warning. The letter consists of two copies. One copy is designed for service on the suspect, and the other must be retained by police and filed locally. The fact that such a warning has been given must be clearly recorded on the relevant CRIS entry including the location of the police copy of the Form 9993. The issue of a warning may be used as evidence in subsequent proceedings and, if this is the case, the police copy becomes an exhibit and should be recorded as such in the box provided. Such a warning should be given personally so that there is absolute clarity about the suspect’s identity and that they received and understood the warning. In exceptional circumstances, sending a warning letter may be the only means available to warn the suspect and, if this is the case, consideration should be given to using a personal delivery service or recorded delivery. Where a suspect either denies the alleged behaviour or knowing the victim, and there are no reasonable grounds to support or corroborate the allegation or the suspect’s involvement, it is not appropriate to issue a warning, as the allegation may be false or the suspect may have been wrongly identified. … ”

(emphasis added)

… ” (emphasis added)

[53]It is perhaps worth noting two relevant aspects of the SOP at this stage. First, it is not contemplated that a copy of the notice should be served on or provided to the “victim”. This contrasts with para 3.9.2 of the Practice Guidance. Secondly, it does appear to acknowledge that the “thorough investigation” will include an interview with the “suspect”, which would give him/her the opportunity to refute the allegations.

[54]Overall, I can summarise the position by saying that it simply remains unclear whether there is a generally recognised current practice for issuing warning notices. There is thus inevitably room for individual judgments to be made.

What is the effect of issuing and serving a notice?

[55]The next step is to try to identify precisely the character of the document itself in the light of the guidance provided. In this context, I take note of para 3.9.1 of the Practice Guidance:

“CONTENT OF A POLICE INFORMATION NOTICE A national template for police information notices in cases of harassment is available on the Genesis website. The notice itself should be sufficient to advise the suspect of the following: • That the police information notice is not a court order or any form of conviction or caution; • The requirements and scope of the PHA; • That all allegations of harassment are taken seriously and investigated by the police; • That harassment, alarm or distress has been caused, or may have been caused, to the victim by specified actions of the suspect (or that this may be caused should the conduct continue or be repeated); • That any further, similar conduct could amount to a criminal offence under the PHA; • The fact that the police information notice has been received could be used as evidence in any future criminal investigation or prosecution, or civil proceedings taken by the victim; • That acknowledging receipt of the notice does not mean that the suspect is admitting any wrongdoing – simply accepting information about the PHA and the police position on investigating allegations of harassment.” • That the police information notice is not a court order or any form of conviction or caution; • The requirements and scope of the PHA; • That all allegations of harassment are taken seriously and investigated by the police; • That harassment, alarm or distress has been caused, or may have been caused, to the victim by specified actions of the suspect (or that this may be caused should the conduct continue or be repeated); • That any further, similar conduct could amount to a criminal offence under the PHA; • The fact that the police information notice has been received could be used as evidence in any future criminal investigation or prosecution, or civil proceedings taken by the victim; • That acknowledging receipt of the notice does not mean that the suspect is admitting any wrongdoing – simply accepting information about the PHA and the police position on investigating allegations of harassment.”

[56]This passage closely corresponds to Mr Johnson’s submissions about the effect of serving such a notice: i) It draws the relevant person’s attention to the fact that an allegation has been made. ii) It does not purport to come to a conclusion on the truth or otherwise of the allegations. iii) It summarises the law and the ingredients of the criminal offence of harassment. iv) It does not purport to be, nor can it be characterised as, part of a criminal record, which is generally to be defined by reference to s.27(4) of the Police and Criminal Evidence Act 1984 and is concerned with what is on the national database. (It will be recalled, however, that R was told that “the records held in relation to the said Notice will remain on the police national computer”.) v) It does not fall within s.113A of the Police Act 1997, which refers to the provision of criminal record certificates. These relate to convictions and cautions. Warning notices are self-evidently neither. Yet, as I noted at [14] above, anyone filling up a form in order to obtain a criminal record certificate (without any enhancement) would be confronted by question 55, asking inter alia for details of any “warning”. Even though the Practice Guidance at paragraph 3.9 cautions against the terminology of “warnings”, it is not easy to understand why a police officer is not giving a warning when he or she informs a suspect that the alleged actions may constitute an offence of harassment. vi) It provides a warning as to future conduct. (As I have just observed, that submission would(a) appear to be inconsistent with paragraph 3.9 of the Practice Guidance and

(b) require such a notice to be disclosed in answer to question 55 on the application form for a criminal record certificate.) vii) It is to be retained and may be used in criminal proceedings to establish that a warning has been given. (The same point applies.)

[57]None of these characteristics of a warning notice could be said in itself to give rise to a breach of the law when it is served. On the other hand, what was described as T’s “composite ground of judicial review” is that procedural unfairness was involved in both the issue and retention of the notice. The term “composite” is used because it is submitted that the same conclusion is reached whether the route taken is via the Data Protection Principles under the 1998 Act,

Article 8 of the European Convention

or the common law requirements of procedural fairness. Counsel were agreed that the answer should be the same whichever of these “prisms” is applied to the problem.

The aspects of the procedure challenged for illegality

[58]I turn to the characteristics of the warning notice procedure which are said to give rise to illegality.

[59]First, it is the practice to store such notices for at least six years in police forces generally, by reason of the MoPI guidance on review, retention and disposal for the relevant category of offences (Group 3). This provides at 7.6.3 for retention for an initial six year period. In the Metropolitan Police, the practice would appear to be to retain for seven years. By contrast, the evidence suggests that CRIS records would be kept for 12 years.

[60]Secondly, it is central to the Claimants’ cases that such a notice carries with it an implication that the police have given credence to the underlying allegation. I am not persuaded that this is so, save in the sense that the relevant complaint has not been dismissed by the officers concerned as manifestly unfounded. It remains, however, an allegation and is in no sense a finding.

[61]Thirdly, it is said that the notice is(a) evidence capable of establishing a course of conduct and

(b) material liable to be taken into account by the CPS in determining whether to prosecute for harassment. The latter proposition would clearly be true of any allegation to the police capable of constituting a criminal offence or an ingredient of such an offence. On the other hand, as noted above, the notice would not be admissible in itself to prove a course of conduct (as opposed to the mere fact of a warning having been given).

[62]Fourthly, there is the concern that the contents of such a warning notice could find their way into an ECRC under s.113B of the Police Act 1997. That is certainly possible, but there is no evidence that this has ever happened so far to anyone at all. It could, in theory, create a chilling effect for the person who is the subject of it, if he or she is thinking of applying for any post where a certificate may be required (e.g. working with children or other vulnerable groups). As to a chilling effect, however, no evidence has been produced from either Claimant to suggest that any such post was under consideration. Again, however, there is the concern about question 55 on the standard application form for a CRC.

[63]Fifthly, it seems likely that in some cases the complainant, or “victim”, will not only be told that a warning notice has been served but will be provided with a copy. Indeed, he or she may be consulted on whether a notice should be served. I am told that in T’s case this did not happen, but there is reason to suppose that this is the recommended course in some forces, as emerges from the Practice Guidance at 3.9.2 (quoted above). I can well understand the Claimants’ concerns in this respect, since it would then be to all intents and purposes in the public domain. Depending on the facts of the particular case, it could create as much of a “chilling effect” as the apprehension of its incorporation in an ECRC. There is no effective means of maintaining confidentiality once it has been passed on in this way.

[64]There are two closely linked submissions on the part of the Claimants; namely, those which relate to the issue and service of the notice in the first place and those relating to the retention of the document in police records thereafter. It will be noted that the fifth of the concerns I have mentioned above is primarily linked to issue rather than storage. If the supposed “victim” is to be served with a copy of the notice, that is likely to happen at or shortly after the subject of the notice has been served. Moreover, it would not seem to fall obviously within any of the legitimate police purposes which are supposed to justify issue and retention. While it may be reasonable to keep such a “victim” in touch with what is going on, it is difficult to see why he or she needs a copy of the police document (which can be retained indefinitely and shown to all and sundry). There is a risk, for example, that it could be exploited tactically in an ongoing “entrenched” neighbours’ dispute.

The complaint in relation to the Data Protection Act 1998

[65]Reliance was placed by Mr Bowen, on behalf of T, upon the principles contained in the Data Protection Act 1998, which he says would govern the “processing” of warning notices.

[66]It is provided by s.4 of the Act that someone in the position of the Commissioner is obliged to comply with the “data protection principles” identified in Schedule 1, Part 1 governing the “processing” of data (which, it is submitted, would include a warning notice). Each of the Claimants in these proceedings would fall within the definition of a “data subject”.

[67]I do not believe that it can be seriously challenged that the material in question is “personal data”, since it passes the two tests suggested by Auld LJ in Durant v Financial Services Authority

[2004] FSR 28

at [28]. It is “biographical” and, in each case, the Claimant is the “focus” of the information. Additional statutory safeguards are provided under s.2 of the Act in respect of what is categorised as “sensitive personal data”, which would include information about the commission or alleged commission of a criminal offence.

[68]“Processing” is defined to include “obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data”. This would extend to “disclosure of the information or data”: see s.1.

[69]My attention was drawn to a number of data protection principles said to be relevant to the present proceedings: 1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless –(a) at least one of the conditions in Schedule 2 is met, and

(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met. 2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes. 3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed. 4. Personal data shall be accurate and, where necessary, kept up to date. 5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes. 6. Personal data shall be processed in accordance with the rights of data subjects under this Act. (a) at least one of the conditions in Schedule 2 is met, and (b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

[70]There is a dispute as to whether or not the content of a warning notice would be categorised as “sensitive personal data”, since Mr Johnson argues that an allegation from a member of the public that a suspect has behaved in a way falling short of a criminal offence (for example, because there was no “course of conduct”) would not be an allegation of the commission of a completed criminal offence. I regard this as a somewhat artificial approach. I consider that the contents of both these warning notices can legitimately be considered as containing allegations of crime.

[71]At all events, where sensitive personal data are involved, they are not to be processed unless at least one of the conditions identified in Schedule 3 is met: “1. The data subject has given his explicit consent to the processing of the personal data. 2. –(1) The processing is necessary for the purposes of exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment.

(2) The Secretary of State may by order – (a) exclude the application of sub-paragraph (1) in such cases as may be specified, or (b) provide that, in such cases as may be specified, the condition in sub-paragraph (1) is not to be regarded as satisfied unless such further conditions as may be specified in the order are also satisfied. 3. The processing is necessary – (a) in order to protect the vital interests of the data subject or another person, in a case where – (i) consent cannot be given by or on behalf of the data subject, or (ii) the data controller cannot reasonably be expected to obtain the consent of the data subject, or (b) in order to protect the vital interests of another person, in a case where consent by or on behalf of the data subject has been unreasonably withheld. 4. The processing – (a) is carried out in the course of its legitimate activities by any body or association which – (i) is not established or conducted for profit, and (ii) exists for political, philosophical, religious or trade-union purposes, (b) is carried out with appropriate safeguards for the rights and freedoms of data subjects, (c) relates only to individuals who either are members of the body or association or have regular contact with it in connection with its purposes, and (d) does not involve disclosure of the personal data to a third party without the consent of the data subject. 5. The information contained in the personal data has been made public as a result of steps deliberately taken by the data subject. 6. The processing – (a) is necessary for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), (b) is necessary for the purpose of obtaining legal advice, or (c) is otherwise necessary for the purposes of establishing, exercising or defending legal rights. 7. – (1) the processing is necessary – (a) for the administration of justice, (aa)for the exercise of any functions of either House of Parliament, (b) for the exercise of any functions conferred on any person by or under any enactment, or (c) for the exercise of any functions of the Crown, a Minister of the Crown or a government department. (2) The Secretary of State may by order – (a) exclude the application of sub-paragraph (1) in such cases as may be specified, or (b) provide that, in such cases as may be specified, the condition in sub-paragraph (1) is not to be regarded as satisfied unless such further conditions as may be specified in the order are also satisfied. 7A. (1) The processing – (a) is either – (i) the disclosure of sensitive personal data by a person as a member of an anti-fraud organisation or otherwise in accordance with any arrangements made by such an organisation; or (ii) any other processing by that person or another person of sensitive personal data so disclosed; and (b) is necessary for the purposes of preventing fraud or a particular kind of fraud. (2) In this paragraph ‘an anti-fraud organisation’ means any unincorporated association, body corporate or other person which enables or facilitates any sharing of information to prevent fraud or a particular kind of fraud or which has any of these functions as its purpose or one of its purposes. 8. – (1) The processing is necessary for medical purposes and is undertaken by – (a) a health professional, or (b) a person who in the circumstances owes a duty of confidentiality which is equivalent to that which would arise if that person were a health professional. (2) In this paragraph ‘medical purposes’ includes the purposes of preventative medicine, medical diagnosis, medical research, the provision of care and treatment and the management of health care services. 9. – (1) The processing – (a) is of sensitive personal data consisting of information as to racial or ethnic origin, (b) is necessary for the purpose of identifying or keeping under review the existence or absence of equality of opportunity or treatment between persons of different racial or ethnic origins, with a view to enabling such equality to be promoted or maintained, and (c) is carried out with appropriate safeguards for the rights and freedoms of data subjects. (2) The Secretary of State may by order specify circumstances in which processing falling within sub-paragraph (1)(a) and (b) is, or is not, to be taken for the purposes of sub-paragraph (1)(c) to be carried out with appropriate safeguards for the rights and freedoms of data subjects. 10. The personal data are processed in circumstances specified in an order made by the Secretary of State for the purposes of this paragraph.” (1) The processing is necessary for the purposes of exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment. (2) The Secretary of State may by order – (a) exclude the application of sub-paragraph (1) in such cases as may be specified, or (b) provide that, in such cases as may be specified, the condition in sub-paragraph (1) is not to be regarded as satisfied unless such further conditions as may be specified in the order are also satisfied. (a) in order to protect the vital interests of the data subject or another person, in a case where – (i) consent cannot be given by or on behalf of the data subject, or (ii) the data controller cannot reasonably be expected to obtain the consent of the data subject, or (b) in order to protect the vital interests of another person, in a case where consent by or on behalf of the data subject has been unreasonably withheld. (a) is carried out in the course of its legitimate activities by any body or association which – (i) is not established or conducted for profit, and (ii) exists for political, philosophical, religious or trade-union purposes, (b) is carried out with appropriate safeguards for the rights and freedoms of data subjects, (c) relates only to individuals who either are members of the body or association or have regular contact with it in connection with its purposes, and (d) does not involve disclosure of the personal data to a third party without the consent of the data subject. 6. The processing – (a) is necessary for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), (b) is necessary for the purpose of obtaining legal advice, or (c) is otherwise necessary for the purposes of establishing, exercising or defending legal rights. 7. – (1) the processing is necessary – (a) for the administration of justice, (aa)for the exercise of any functions of either House of Parliament, (b) for the exercise of any functions conferred on any person by or under any enactment, or (c) for the exercise of any functions of the Crown, a Minister of the Crown or a government department. (2) The Secretary of State may by order – (a) exclude the application of sub-paragraph (1) in such cases as may be specified, or (b) provide that, in such cases as may be specified, the condition in sub-paragraph (1) is not to be regarded as satisfied unless such further conditions as may be specified in the order are also satisfied. 7A. (1) The processing – (a) is either – (i) the disclosure of sensitive personal data by a person as a member of an anti-fraud organisation or otherwise in accordance with any arrangements made by such an organisation; or (ii) any other processing by that person or another person of sensitive personal data so disclosed; and (b) is necessary for the purposes of preventing fraud or a particular kind of fraud. (2) In this paragraph ‘an anti-fraud organisation’ means any unincorporated association, body corporate or other person which enables or facilitates any sharing of information to prevent fraud or a particular kind of fraud or which has any of these functions as its purpose or one of its purposes. 8. – (1) The processing is necessary for medical purposes and is undertaken by – (a) a health professional, or (b) a person who in the circumstances owes a duty of confidentiality which is equivalent to that which would arise if that person were a health professional. (2) In this paragraph ‘medical purposes’ includes the purposes of preventative medicine, medical diagnosis, medical research, the provision of care and treatment and the management of health care services. 9. – (1) The processing – (a) is of sensitive personal data consisting of information as to racial or ethnic origin, (b) is necessary for the purpose of identifying or keeping under review the existence or absence of equality of opportunity or treatment between persons of different racial or ethnic origins, with a view to enabling such equality to be promoted or maintained, and (c) is carried out with appropriate safeguards for the rights and freedoms of data subjects. (2) The Secretary of State may by order specify circumstances in which processing falling within sub-paragraph (1)(a) and (b) is, or is not, to be taken for the purposes of sub-paragraph (1)(c) to be carried out with appropriate safeguards for the rights and freedoms of data subjects. 10. The personal data are processed in circumstances specified in an order made by the Secretary of State for the purposes of this paragraph.” (a) for the administration of justice, (aa)for the exercise of any functions of either House of Parliament, (b) for the exercise of any functions conferred on any person by or under any enactment, or (c) for the exercise of any functions of the Crown, a Minister of the Crown or a government department. (a) exclude the application of sub-paragraph (1) in such cases as may be specified, or (b) provide that, in such cases as may be specified, the condition in sub-paragraph (1) is not to be regarded as satisfied unless such further conditions as may be specified in the order are also satisfied. (a) is either – (i) the disclosure of sensitive personal data by a person as a member of an anti-fraud organisation or otherwise in accordance with any arrangements made by such an organisation; or (ii) any other processing by that person or another person of sensitive personal data so disclosed; and (b) is necessary for the purposes of preventing fraud or a particular kind of fraud. (2) In this paragraph ‘an anti-fraud organisation’ means any unincorporated association, body corporate or other person which enables or facilitates any sharing of information to prevent fraud or a particular kind of fraud or which has any of these functions as its purpose or one of its purposes. (1) The processing is necessary for medical purposes and is undertaken by – (a) a health professional, or (b) a person who in the circumstances owes a duty of confidentiality which is equivalent to that which would arise if that person were a health professional. (2) In this paragraph ‘medical purposes’ includes the purposes of preventative medicine, medical diagnosis, medical research, the provision of care and treatment and the management of health care services. (1) The processing – (a) is of sensitive personal data consisting of information as to racial or ethnic origin, (b) is necessary for the purpose of identifying or keeping under review the existence or absence of equality of opportunity or treatment between persons of different racial or ethnic origins, with a view to enabling such equality to be promoted or maintained, and (c) is carried out with appropriate safeguards for the rights and freedoms of data subjects. (2) The Secretary of State may by order specify circumstances in which processing falling within sub-paragraph (1)(a) and (b) is, or is not, to be taken for the purposes of sub-paragraph (1)(c) to be carried out with appropriate safeguards for the rights and freedoms of data subjects.

[72]The overall context of this Schedule suggests that a narrow construction is required, since the concern is to restrict the purposes for which sensitive data can be processed. Whether the processing of any of the relevant data in either of these cases could be said to fulfil one or other of the specified conditions is open to question. Conditions 6 and 7 require particular consideration.

[73]I do not consider that “the administration of justice” would require these warning notices to be stored and retained. The phrase is used in different contexts, sometimes broadly and sometimes less so. But here I note that the only specific provision relating to crime is contained in paragraph 7A and is concerned with fraud. This rather suggests that if sensitive personal data are to be processed for detecting or preventing crime, outside the context of particular legal proceedings, specific provision would be made. The matter is dealt with more generally in s.29, to which I shall turn shortly.

[74]Whereas paragraph 6 addresses “prospective” legal proceedings, I would regard the mere possibility of future harassment or other proceedings in which the warning notices could be introduced as more remote than the draftsman had in mind.

[75]The Act provides specific statutory remedies in relation to the processing of information otherwise than in accordance with the Act; that is to say, an appeal to the Information Commissioner under s.14 and an application for assessment under s.42. This is potentially relevant, as it has been suggested that the Claimants should have availed themselves of these opportunities as alternatives to seeking judicial review.

[76]In the context of Principle 5, both Claimants have focused upon the practice of retaining warning notices for at least seven years. This does not appear to be governed by any specific statutory provision and I can see no reason why it should fall outside the scope of the 1998 Act. Principle 5 would appear to require, wherever possible, an individual assessment to be made in respect of particular categories of data as to what period of retention could be said to be “necessary” in the light of the purpose or purposes for which it is retained. There is no reason, however, why each case has to be determined separately, which would make for great inconvenience and uncertainty. What seems to be required is a clear, accessible and transparent policy.

[77]There was some discussion of s.29 of the 1998 Act, which provides for a qualified exception from the first data protection principle in respect inter alia of processing for the purpose of the prevention or detection of crime. That would appear to entail the kind of exercise that has become so familiar in the context of reconciling competing Convention rights in a variety of circumstances. It seems that it would require the striking of a balance, depending on the extent to which the principle of fairness has been infringed and the extent to which that infringement aids the prevention or detection of crime on a particular set of facts. It seems to have been accepted by the Court of Appeal in Chief Constable of Humberside Police v Information Commissioner

[2010] 1 WLR 1136

that s.29(1) does not provide for a blanket disapplication of the first data protection principle.

[78]That being so, it is necessary to focus on the extent to which the data processing in these cases has been unfair, if at all, notwithstanding the acceptance that the processing of warning notices may be necessary in general terms for the purpose of preventing or detecting harassment.

[79]I have already referred to the Management of Police Information (or “MoPI”) which identifies minimum periods for the retention of information for policing purposes. At para 7.4, the minimum period of retention is stated to be six years. It is also provided that, outside that period, there is a requirement to keep the matter under review in order to establish whether it is still necessary to keep the record for a policing purpose. In para 7.6.3, it is made clear that police forces should maintain an Information Management Strategy which would set out the criteria according to which decisions are made whether to review and/or automatically dispose of what are called Group 3 records (those which relate to minor offences). It is not clear to me what are the Commissioner’s criteria for review and disposal. All I know is that, as a matter of practice, such notices are destroyed after a period of seven years. This is subject to some uncertainty, however, because the original response to the letter before claim suggested that warning notices were retained indefinitely. If this were indeed the case, it would appear to be unlawful. It would neither comply with data protection Principle 5 nor take into account the guidance to which I have referred.

The analysis by reference to Article 8

[80]Turning to the “prism” of Article 8, I refer to the statement of general principles to be found in S v UK

(2009) 48 EHRR 50

at [66]-[67]:

“66. The Court recalls that the concept of ‘private life’ is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can therefore embrace multiple aspects of the person’s physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by art.8. Beyond a person’s name, his or her private and family life may include other means of personal identification and of linking to a family. Information about the person’s health is an important element of private life. The Court furthermore considers that an individual’s ethnic identity must be regarded as another such element. Article 8 protects in addition a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. The concept of private life moreover includes elements relating to a person’s right to their image. 67. The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of art.8. The subsequent use of the stored information has no bearing on that finding. However, in determining whether the personal information retained by the authorities involves any of the private-life aspects mentioned above, the Court will have due regard to the specific context in which the information at issue has been recorded and retained, the nature of the records, the way in which these records are used and processed and the results that may be obtained.”

[81]In the context of domestic law, I had my attention drawn to the similar observations of Laws LJ in R (Wood) v Commissioner of Police for the Metropolis

[2010] 1 WLR 123

at [19]-[22] where, having referred to S v UK, he continued: “19. These and other cases show that the content of the phrase ‘private and family life’ is very broad indeed. Looking only at the words of the article, one might have supposed that the essence of the right was the protection of close personal relationships. While that remains a core instance, and perhaps the paradigm case of the right, the jurisprudence has accepted many other facets; so many that any attempt to encapsulate the right’s scope in a single idea can only be undertaken at a level of considerable abstraction. But it is an endeavour worth pursuing, since we need if possible to be armed at least with a sense of direction when it comes to disputed cases at the margin.20. The phrase ‘physical and psychological integrity’ of a person … is with respect helpful. So is the person’s ‘physical and social identity’ … These expressions reflect what seems to me to be the central value protected by the right. I would describe it as the personal autonomy of every individual. I claim no originality for this description. In Murray v Express Newspapers Plc

[2009] Ch 481

, para 31, Sir Anthony Clarke MR, giving the judgment of the court, referred to Lord Hoffmann’s emphasis in Campbell v MGN Ltd

[2004] 2 AC 457

, para 51, upon the fact that ‘The law now focuses upon the protection of human autonomy and dignity – “the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people”.’

21. The notion of the personal autonomy of every individual marches with the presumption of liberty enjoyed in a free polity: a presumption which consists in the principle that every interference with the freedom of the individual stands in need of objective justification. Applied to the myriad instances recognised in the article 8 jurisprudence, this presumption means that, subject to the qualifications I shall shortly describe, an individual’s personal autonomy makes him – should make him – master of all those facts about his own identity, such as his name, health, sexuality, ethnicity, his own image, of which the cases speak; and also of the ‘zone of interaction’ (the Von Hannover case 40 EHRR 1, para 50) between himself and others. He is the owner of these aspects of his own self; his control of them can only be loosened, abrogated, if the state shows an objective justification for doing so.

22. This cluster of values, summarised as the personal autonomy of every individual and taking concrete form as a presumption against interference with the individual’s liberty, is a defining characteristic of a free society. We therefore need to preserve it even in little cases. At the same time it is important that this core right protected by article 8, however protean, should not be read so widely that its claims become unreal and unreasonable. For this purpose I think there are three safeguards, or qualifications. First, the alleged threat or assault to the individual’s personal autonomy must (if article 8 is to be engaged) attain ‘a certain level of seriousness’. Secondly, the touchstone for article 8(1)’s engagement is whether the claimant enjoys on the facts a ‘reasonable expectation of privacy’ (in any of the senses of privacy accepted in the cases). Absent such an expectation, there is no relevant interference with personal autonomy. Thirdly, the breadth of article 8(1) may in many instances be greatly curtailed by the scope of the justifications available to the state pursuant to article 8(2). … ” ‘The law now focuses upon the protection of human autonomy and dignity – “the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people”.’

[82]Mr Johnson submits that the retention of these notices, and of the underlying crime reports, would not infringe either of the Claimants’ Article 8 rights. It does not show a lack of “respect” for family life: see e.g. Secretary of State for Work and Pensions v M

[2006] 2 AC 91

at [62] and [83], per Lord Walker. Nor, it is said, do the alleged infringements achieve the necessary level of seriousness for a fundamental human right to be infringed. My attention was drawn in this context to the words of Lord Bingham in R (Gillan) v Commissioner of Police for the Metropolis

[2006] 2 AC 307

at [28]:

“ … It is true that ‘private life’ has been generously construed to embrace wide rights to personal autonomy. But it is clear Convention jurisprudence that intrusions must reach a certain level of seriousness to engage the operation of the Convention, which is, after all, concerned with human rights and fundamental freedoms, and I incline to the view that an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach that level.”

[83]It may be that as a matter of first impression the retention of the data contained in warning notices does not seem to have much to do with respect for family life. It is, however, by now well established, both here and in Strasbourg, that the reach of Article 8 is significantly broader than its wording would suggest if taken literally. It does seem clear from paragraph [67] in S v UK, cited above, that mere retention of data which relates to family life can indeed constitute an infringement. The use to which it is put would thus be immaterial. So far as R is concerned, leaving aside for the moment the issue of harassment, it would appear that what was recorded about the termination of his relationship with Ms A is subject matter falling readily within the scope of Article 8.

[84]As to T, on the other hand, that dimension is missing. Even so, however, that does not mean that Article 8 has no application. It is necessary to have in mind what was said by Lord Hope in R (L) v Commissioner of Police for the Metropolis

[2010] 1 AC 410

at [27]. His Lordship referred to the Convention jurisprudence contained in Leander v Sweden

(1987) 9 EHRR 433

, Rotaru v Romania

(2000) 8 BHRC 449

, Segerstedt-Wiberg v Sweden

(2006) 44 EHRR 14

and Cemalettin Canli v Turkey (Application No 22427/04), 18 November 2008, and continued as follows:

“This line of authority from Strasbourg shows that information about an applicant’s convictions which is collected and stored in central records can fall within the scope of private life within the meaning of article 8(1), with the result that it will interfere with the applicant’s private life when it is released. It is, in one sense, public information because the convictions took place in public. But the systematic storing of this information in central records means that it is available for disclosure under Part V of the 1997 Act long after the event when everyone other than the person concerned is likely to have forgotten about it. As it recedes into the past, it becomes a part of the person’s private life which must be respected. Moreover, much of the other information that may find its way into an ECRC relates to things that happen behind closed doors. A caution takes place in private, and the police gather and record information from a variety of sources which would not otherwise be made public. It may include allegations of criminal behaviour for which there was insufficient evidence to prosecute, as in R v Local Authority and Police Authority in the Midlands, ex p LM [2000] 1 FLR 612 where the allegations of child sexual abuse were unsubstantiated. It may even disclose something that could not be described as criminal behaviour at all. The information that was disclosed on the appellant’s ECRC was of that kind.”

In that instance, the information related to the inclusion of the appellant’s son on the child protection register by reason of neglect.

[85]Thus it appears that, after a sufficient lapse of time, even criminal convictions, a matter of public concern and public record, can themselves come to be regarded as information pertaining to the person’s private life. It may be difficult to decide where to draw the line, but there is nothing surprising or new about this, since the Rehabilitation of Offenders Act has been in place in this jurisdiction for nearly 40 years. Once it is recognised that criminal convictions can, at some point, fall under Article 8 protection, it would seem to follow that less serious matters such as (say) a mere allegation of harassment, or of conduct not yet amounting to harassment, could a fortiori also be embraced under Article 8. As I understand Lord Hope’s reasoning, there is a distinction between “public information”, such as convictions, which will at some stage be regarded as having receded into the past to such an extent that there will arise a reasonable expectation of privacy, and “things that happen behind closed doors”. In the latter case, since there was no public element at any stage, there would be a reasonable expectation of privacy from the outset. Furthermore, because of the harassment context and the potential for impinging upon work and/or social opportunities, I would regard the circumstances as attaining the required level of seriousness. If it were to be released, therefore, or is “available for disclosure under Part V of the Police Act 1997”, there could be an interference with the person’s Article 8 rights. Thus, according to S v UK, mere storage will need to be justified in relation to such material. What is left for consideration, therefore, is the third of the “safeguards” described by Laws LJ in the Wood case; that is to say, I need to focus on the scope of the state’s justification under Article 8(2).

[86]If the purposes which the police seek to fulfil do justify the service and retention of warning notices, then any corresponding infringement of a person’s Article 8 rights could well be regarded as necessary and proportionate. The outcome of such a question would be likely to turn on such factors as the seriousness of the allegation(s) made by the complainant; the credence to be attached to the allegation(s); the degree of risk that such conduct will be repeated and/or of a course of conduct amounting to harassment occurring in the future; and the length of time for which it is proposed to retain the data on record.

[87]At the stage of deciding whether to serve a warning notice, it would be clearly undesirable, unnecessary and disproportionate merely to move straight from receipt of the complaint to issuing and serving a warning notice. The “supervising officer” will need to make a judgment as to whether it is appropriate in the light of such very specific questions as those identified in the SOP: i) Has the suspect been given a fair opportunity to respond? ii) If so, has he denied the behaviour alleged? iii) If so, are there nonetheless reasonable grounds to support or corroborate the “charges” made against him? iv) If so, does there remain a risk of any such behaviour occurring in the future? It would seem right for these issues to be resolved according to the standard of the reasonable police officer on the spot.

Common law procedural fairness

[88]I believe counsel were all of the view that the arguments based on common law procedural fairness overlapped with those based on the Data Protection Principles and Article 8 and that it would not add anything of value if those were in themselves unsuccessful. In any event, Mr Johnson submits that the police are not in these cases purporting to determine who is in the right but simply whether the allegations are such as to merit a warning notice. Thus, the requirements of procedural fairness would not appear to be engaged. Counsel referred to the House of Lords’ decision in Wiseman v Borneman

[1971] AC 297

, 308, where it was observed by Lord Reid that public officers who have to decide whether there is a prima facie case, so as to justify a prosecution, are not obliged in arriving at such a preliminary decision to seek the comments of the accused.

The arguments discussed and conclusions reached

[89]I shall consider first the allegation of illegality in relation to issue and service of the warning notices and then address the question of storage.

[90]Once the police received complaints from both Mr S and Mr B of “homophobic” comments, as it appears they did, it is difficult to see how a reasonable police officer could come to a conclusion that they were “unfounded” – even assuming that someone had interviewed Ms T and recorded her refutation. It would simply be a case of unresolved cross-allegations. Moreover, B’s allegations would be at least capable of “supporting” and “corroborating” what S had said. To that extent, therefore, one of the main criteria for issuing a notice identified in the SOP would appear to be fulfilled.

[91]It is unfortunate that the police officer appears to have decided at such an early stage, on 21 July 2010, that a warning notice should be served without carrying out any further investigation and, in particular, without finding out what T had to say. There was obviously no urgency about the matter, since the notice was not served until 7 October, and in those circumstances more determined efforts could have been made to give T a chance to respond. Even if she had denied it, however, the combined accounts of S and B would provide a sufficient basis to issue and serve.

[92]Had T had the opportunity to give her account, the background of an “entrenched” neighbours’ dispute between herself and B might well have become apparent. In the light of the Practice Guidance at paragraph 3.9.2, that might seem to be a reason not to issue a notice. But I am not sure that allegations of excessive noise on the one side and “homophobic” insults on the other could in any sense be equated or cancel each other out. In these circumstances, I am far from convinced that once she had been filled in about the background the police officer would or should have come to a different conclusion. On the other hand, T’s point is that there was procedural unfairness and it is not material to speculate as to what might have happened if correct procedure (whatever that might be) had in fact been followed.

[93]Her difficulty here is to demonstrate that there was any such unfairness or illegality. As I said earlier, it cannot be a universal rule, to which there are no exceptions, that there must have been a police interview with the suspect prior to issue and service.

[94]The evidence shows that attempts were made to contact T, albeit somewhat desultory. There were visits by officers to her address on 20 July (see [5] above), 12 August and on 6, 8 and 10 September 2010 before the notice was pushed through her letter box on 7 October. It is said that on that occasion she refused to open the door, although T’s case is that she did not realise that the callers were police officers. As I have already noted (at [91]), the decision to issue and serve a notice had apparently already been made by 21 July. It would thus seem to follow that the subsequent visits in August and September had the primary purpose of serving it, although no doubt if T had opened the door she might well also have been “spoken to” (as the notice itself purports to record). There is no reason to suppose, however, that such a conversation would have led to the notice being withdrawn (or not being served). The die was already cast. Mr Bowen argues that it must follow that the issue and service were not lawful, since no fair opportunity to respond was afforded before service. It matters not how many visits were made to T’s home thereafter. Service of the document would (he submits) inevitably have been unlawful, at any time, because the decision had been made without first giving that opportunity. Yet, as I have said, there was one attempt to call at the address on 20 July. I concluded, at [54] above, that there is currently no clear and universally recognised practice for the issue and service of such notices. Much is, therefore, left to the discretion of officers in dealing with the practicalities. Greater clarity is desirable but, in the circumstances, I would hold that the issue and service of her warning notice have not been shown to be unlawful.

[95]As to R, the police may have been heavy handed, but it is fair to say that unwanted calls or text messages can sometimes amount to harassment, even though innocuous when taken at face value. There may have been some room for doubt, up to at least 12 January 2010, as to whether Ms A had made her position unequivocally clear. On the other hand, if the communications were continued thereafter, it would be easier to establish that R had by then been fixed with knowledge that his approaches were unacceptable. Moreover, a police officer might reasonably come to the conclusion that the service of a warning notice would serve the legitimate purpose of deterrence. Given the circumstances confronting them, the police were hardly in a position to conclude that A’s complaints of unwanted calls since October were “unfounded” – even though there was no sufficient evidence to justify a prosecution for harassment at that stage. As I have recorded, at [28] above, a police officer expressed the view “I cannot see any offences”, but then immediately afterwards recommended the issue of a warning notice. These entries on the CRIS records can be reconciled on the basis that the officers were not in a position to reject out of hand Ms A’s account of what had happened in October and/or in December as being unfounded (whatever any officer may have thought about the text messages taken at face value). There would thus not necessarily be any infringement of paragraph 3.9.2 of the Practice Guidance.

[96]I am thus not in a position to decide, in the case of either of these Claimants, that the decision to issue and serve the warning notice failed to comply with any of the (rather muddling) practice advice – which is in any event not statutory. Still less am I satisfied that either of the decisions should be quashed for illegality or that a declaration should be granted to similar effect.

[97]I turn to the question of storage. The preponderance of modern case law would support the proposition that even the retention of the warning notices, and the associated crime reports, irrespective of any use to which they are put, can involve prima facie intrusion upon the subject’s Article 8 rights. It seems likely, however, that it could be justified for the police purposes discussed above – subject to necessity and proportionality. So too, when addressing the terms of the Data Protection Act and the associated principles, the necessary balancing act can be approached in the same way.

[98]Either way, I can see no reason why the contents of the notice, or for that matter those of the underlying crime report, should be routinely accessible to third parties. Indeed, as Mr Johnson accepted, it should be “kept under strict conditions of confidentiality”. If that is achieved, there may well be no infringement of the right to respect for private and family life at all. In any event, the mere retention can be seen to serve the useful social purposes to which I have referred. If necessary, therefore, a justification under Article 8(2) is available.

[99]It seems to me surprising that such information needs to be retained for as much as seven or twelve years. If the sole purpose of retention were to lay the ground for establishing a “course of conduct” under the Protection from Harassment Act, then only a much shorter period could be justified. But, for other purposes such as assisting in resolving later allegations, and investigating other crimes, a longer period of retention might well be appropriate. It is largely a matter for expert judgment and the court should be slow to interfere. The state needs to justify such intrusion on a continuing basis, but what is required is surely a transparent and clearly expressed policy on the length of retention, rather than repeated ad hoc applications for judicial review as the (six, seven or twelve) years go by. It is clearly desirable to avoid what Lord Steyn referred to as “interminable and invidious disputes (subject to judicial review of individual decisions)”: see R (S and Marper) v Chief Constable of South Yorkshire Police

[2004] 1 WLR 2196

at [39].

[100]The current policy on periods of retention, and the regional variations in that policy, came about after considerable research and consultation in the course of the Bichard Inquiry. It is discussed at paragraphs 3.72-3.80 of the resulting Report.

[101]It is necessary to remember in this context the observations of Waller LJ in Chief Constable of Humberside v Information Commissioner at [42]-[43]: “42. … The Commissioner, when giving evidence to the Bichard Inquiry, was recorded by Sir Michael Bichard as saying this about the approach to the data retained by the police, at para 4.45: ‘4.45 Data protection concerns are relevant but should not dominate the code or any supporting manual. That said, some important messages for those drafting the code emerged from the Information Commissioner’s evidence. He clearly and helpfully said that:4.45.1 The police are the first judge of their operational needs and the primary decision-makers; the Information Commissioner’s role is a reviewing or supervising one.

4.45.2 Police judgments about operational needs will not be lightly interfered with by the Information Commissioner. His office “cannot and should not substitute [their] judgment for that of experienced practitioners. His office will give considerable latitude to the police in their decision-making. If a reasonable and rational basis exists for a decision, “that should be the end of the story”.

4.45.3 There is, at present, considerable latitude extending both to decisions about how long to retain records and about when to disclose information (under the enhanced disclosure regime, for example, in the employment-vetting context).

4.45.4 It could be presumed to be reasonable if, after the discussions with the Information Commissioner, certain categories of information were retained for specified periods, while still allowing the right of challenge in individual cases.

4.45.5 In terms of striking the balance between the various rights and interests involved, retaining information represents considerably less interference than using (that is, disclosing) that information, and is correspondingly easier to justify. 43. It seems to me that the approach described is the correct approach. If the police say rationally and reasonably that convictions, however old or minor, have a value in the work they do that should, in effect, be the end of the matter. The examination of statistics relevant only to the question as to the risk of re-offending was not to the point. Furthermore the fact that the statistics actually showed that the risk was greater than with non-offenders is not something I would pray in aid. It is simply the honest and rationally held belief that convictions, however old and however minor, can be of value in the fight against crime and thus the retention of that information should not be denied to the police.” ‘4.45 Data protection concerns are relevant but should not dominate the code or any supporting manual. That said, some important messages for those drafting the code emerged from the Information Commissioner’s evidence. He clearly and helpfully said that: 4.45.1 The police are the first judge of their operational needs and the primary decision-makers; the Information Commissioner’s role is a reviewing or supervising one. 4.45.2 Police judgments about operational needs will not be lightly interfered with by the Information Commissioner. His office “cannot and should not substitute [their] judgment for that of experienced practitioners. His office will give considerable latitude to the police in their decision-making. If a reasonable and rational basis exists for a decision, “that should be the end of the story”. 4.45.3 There is, at present, considerable latitude extending both to decisions about how long to retain records and about when to disclose information (under the enhanced disclosure regime, for example, in the employment-vetting context). 4.45.4 It could be presumed to be reasonable if, after the discussions with the Information Commissioner, certain categories of information were retained for specified periods, while still allowing the right of challenge in individual cases. 4.45.5 In terms of striking the balance between the various rights and interests involved, retaining information represents considerably less interference than using (that is, disclosing) that information, and is correspondingly easier to justify.

[102]The Commissioner has rejected the notion that the seven year period is fixed rigidly, and not subject to exception. He is apparently prepared to entertain requests for earlier deletion. That would certainly accord with the state’s continuing need to justify retention by reference to the established tests of necessity and proportionality.

[103]I am not satisfied that any illegality has been established, up to the present time, in the storage of the warning notices or the underlying allegations.

Alternative remedies

[104]I should finally address the arguments as to whether the Claimants should have sought alternative remedies to judicial review. There could have been complaints to the Information Commissioner, but they opted to take the route of proceedings in the High Court (in T’s case with the benefit of public funding). Mr Johnson referred to R (Cowl) v Plymouth City Council

[2002] 1 WLR 803

, at [1]; R (MD (China)) v Secretary of State for the Home Department

[2011] EWCA Civ 453

, at [8]; Anufrijeva v Southwark LBC

[2004] QB 1124

, at [81]. The common theme on which he relies is that litigation should be avoided wherever possible and use made of free or less expensive complaints procedures. I am not sure that this is appropriate where, as Collins J put it, a “system” is challenged and not merely its application in an individual case. In the event, however, nothing turns on the point.

The outcome

[105]I refuse the relief sought.

The issue of continuing anonymity

[106]It was agreed at the outset of the hearing that the continuation of the Claimants’ anonymity would be reviewed at the end of the case and in the light of recent authority and guidance on circumstances in which anonymity should be granted. I will hear argument in due course but, since it has been rightly conceded by the Commissioner that the information should be “kept under strict conditions of confidentiality”, not least so as to avoid any infringement of Article 8 rights, it would seem curious if the Claimants were to lose that degree of protection merely because they sought rulings from the court.