Mr Lee McLoughlin v Chief Constable of Kent Police

Hearing date: 11 March 2024

Approved Judgment

This judgment was handed down remotely at 10 am on 1 May 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down remotely by email at 10am on 1 May 2024 may be treated as authentic.

Introduction and Summary

The appellant (the defendant below) is in operational charge of policing in Kent. The respondent (the claimant below) pleaded guilty in 2016 to nine charges of possessing indecent images of children. He brought a claim in 2022 against the appellant under the Data Protection Act 2018 ( DPA 2018) alleging that part of a police officer's witness statement used in the 2016 criminal proceedings was personal data and was inaccurate. Broadly, the allegedly inaccurate statement was about use of a computer attributed to the respondent.

The respondent claimed damages and injunctive relief. In April 2022, the appellant applied to strike out the claim and/or for summary judgment. The appellant asserted, first, that the claim was an abuse of process because it was an attempt to re-litigate the criminal proceedings and a subsequent judicial review in which permission had been refused. Second, the appellant submitted that the respondent had no reasonable prospect of showing that the personal data in the witness statement used in the criminal proceedings was inaccurate.

The application was heard in May 2023 by His Honour Judge Parker at Canterbury County Court. He dismissed the application, for reasons he gave in an extempore judgment. He rejected both limbs of the application, finding that the claim was not an abuse of process and that the respondent had a reasonable prospect of showing that the personal data was inaccurate. He gave directions for the claim to proceed to trial.

The appellant appealed against the order dismissing the application. Hill J in November 2023 granted permission to appeal. She thought it was arguable that the judge had erred on both issues; and that there was a compelling reason for the appeal to be heard, namely that it “may well … clarify the law as to the accuracy of personal data in the context of law enforcement purposes”. The appeal was ably argued before me by Ms McNeil-Walsh for the appellant and the respondent in person. Both also appeared below.

The Facts

In May 2014, DC Brett of Kent police searched the respondent's home in Dover and seized computer equipment. A digital analysis was carried out by Mr Gary Bates of Kent police. The respondent was arrested. On 4 February 2015, DC Brett made a witness statement for use in criminal proceedings against the respondent. It contained the following words ( the personal data):

“During the times that searches/downloads were occurring, with respect to indecent images of children, a person was logged into a Facebook account in the name of Lee MCLOUGHLIN.”

Mr Bates also made a witness statement (undated on my copy). He described himself as a digital forensic analyst. It is not disputed that DC Brett relied in his witness statement on the expert evidence of Mr Bates. The personal data was a summary of Mr Bates' evidence as set out in his statement, which included the following passages, quoted by the judge below in his judgment:

“…These dates show that videos containing indicative titles were being downloaded and shared … between 15 August 2013 and 18 May 2014.

4.4 A number of potentially indecent videos were located in the eMule downloads folder…. These videos were made available to DC Brett for categorisation.

4.5 Using Internet Evidence Finder (IEF) software… I extracted all internet history associated with [various search engines] and searched that history for terms that, in my experience, are associated with indecent material. The results of the search showed that a user of this computer had used the Safari browser to conduct internet searches for ‘12 years old sex older girl’ and ‘sex 12 year old boy’…

4.6 Internal artefacts recovered with IEF case shows recovered internet activity that indicates a user… accessed a Facebook account with a profile name lee.mcloughlin.79… between 2nd April 2014 and 1st May 2014. However, this Facebook account is no longer active and cannot be viewed.”

The respondent was charged with possession of indecent images of children. The prosecution evidence against him included the statements of DC Brett and Mr Bates. In July 2016, the respondent pleaded guilty to nine counts of possessing indecent images of children. On 26 August 2016, he was sentenced to 10 months' imprisonment and was made subject to notification requirements and a sexual harm prevention order ( SHPO) for a period of 10 years.

In about the early summer of 2017, the appellant discovered that the respondent had moved to Leicestershire. The appellant provided the relevant local authorities in Leicestershire with details of the respondent's convictions and provided a copy of DC Brett's statement, which included the personal data. On 12 June 2017, a child protection conference relating to two children was held in Leicestershire. Reference to the personal data, derived from DC Brett's statement, was made in a report to the conference.

The respondent discovered this and in September 2017 complained to the then Independent Police Complaints Commission ( IPCC) that part of the evidence of Mr Bates and DC Brett was false. The appellant rejected this complaint in November 2017, stating that the complaint was made too late and commenting that the place to dispute the prosecution evidence against the respondent was during the trial process in August 2016. The respondent was disappointed but did not appeal against the rejection of his complaint.

On 8 October 2018, the respondent breached the SHPO. He was arrested on 12 October but not kept in custody. On 23 October 2018, he again breached the SHPO. He sought to reopen the matter of his complaint, bringing a late appeal to the Independent Office for Police Conduct ( IOPC), as it had by then become. He wrote to the appellant, the Chief Constable, personally; and to DC Brett asking him to withdraw his “false statement”.

On 13 November 2018, the appellant again rejected his complaint and stated that it considered the matter concluded. On 21 December 2018, the IOPC dismissed his complaint. In or about January 2019, the respondent applied for permission to seek a judicial review of those two decisions, though naming only the appellant as defendant, not the IOPC. The application came before Ms Karen Steyn QC (as she then was), sitting as a Deputy High Court judge.

In her order of 25 February 2019, Ms Steyn QC refused permission on the papers. She noted that the IOPC was not a defendant and in any case there were no grounds for impugning its decision. The complaint against the present appellant was a re-run of the earlier complaint that had concluded 10 months earlier; it was out of time. Furthermore, the respondent “would have been made aware of the statements in 2016 as they were disclosed by the prosecution prior to his conviction, and the attempt to challenge his conviction via the complaint process is an abuse of process” (reasons, paragraph 8).

Then in July 2019, the respondent was convicted after a trial at Canterbury Crown Court of two offences of failure to comply with his notification requirements and of the two breaches of the SHPO committed the previous year. For the two breaches of the SHPO he was sentenced to concurrent sentences of two years' imprisonment. For the two breaches of the notification requirements he was sentenced to concurrent sentences of one year, to run consecutively to the two year concurrent sentences; making a total of three years' imprisonment.

The Court of Appeal refused leave to appeal against those sentences at a hearing in February 2021 (but allowed an appeal against the Crown Court judge's decision to vary the terms of the SHPO). So the prison sentences stood. In July 2021 the respondent made a further complaint to the appellant about the disclosure of DC Brett's statement to the Leicestershire local authorities responsible for protecting children. He asked that the relevant paragraph (i.e. the personal data, quoted above) should not be shared and that agencies it had been shared with “should be contacted to have the information withdrawn”.

The appellant rejected that complaint and after pre-action correspondence the respondent brought the present claim under the DPA 2018, on 25 January 2022. The claim was made in the High Court under CPR Part 8 and was then transferred to Canterbury County Court. The appellant unsuccessfully applied to strike out the claim or for summary judgment, as already related, followed by the present appeal. I will come in a moment to the judgment of HHJ Parker below, given extempore on 24 May 2023.

The respondent made an attempt to change his case in this appeal by filing an unorthodox “notice of discontinuance” on 16 January 2024, stating that he “wishes to discontinue to claim against the assertion made by the Defendant that the Claimant was logged into Facebook during times that downloads were occurring”. Certain procedural steps have been taken as a result of the respondent filing that notice, both in this court and Canterbury County Court; but I do not think I need set them...