R II (by his mother and Litigation Friend, NK) v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn |
| Judgment Date | 24 September 2020 |
| Neutral Citation | [2020] EWHC 2528 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2962/2020 |
| Date | 24 September 2020 |
[2020] EWHC 2528 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Steyn DBE
Case No: CO/2962/2020
Jude Bunting (instructed by Deighton Pierce Glynn) for the Claimant
Robert Talalay (instructed by Metropolitan Police Service) for the Defendant
Hearing date: 16 July 2020
Approved Judgment
A. Introduction
The Claimant is a 16-year-old boy. In December 2015, when he was 11 years old, an online tutor raised certain concerns about his alleged behaviour with the Department for Education. In accordance with the Prevent Strategy, the matter was referred to the Metropolitan Police. On 20 June 2016, the case was closed by the Defendant's local Prevent panel. The Claimant challenges a decision made by the Defendant on 26 April 2019 to retain the Claimant's personal data, refusing his mother's requests for such material to be deleted.
Permission to apply for judicial review was granted by Thornton J on 8 October 2019, and an anonymity order was made, pursuant to which the identity of the Claimant (“II”) and his mother (“NK”) shall not be disclosed.
The challenge pursued by the Claimant is limited to a challenge to the legality of the retention of the Claimant's personal data. The Claimant's original grounds included a wider challenge to the Defendant's policy on the retention of data arising as a result of the Prevent duty, insofar as it relates to children. However, on 9 June 2020, the Claimant withdrew the wider policy challenge. As a result, the College of Policing, which had been joined as an interested party, with a view to addressing the policy challenge, took no further part in the case.
The Claimant contends that the retention of his personal data is in breach of Article 8 of the European Convention on Human Rights, the first, third and fifth data protection principles in the Data Protection Act 2018, and the public sector equality duty.
B. Approach to the evidence and ex-post facto reasoning
The Claimant submits I should be cautious before accepting witness evidence written 3 1/2 years after the events described which goes beyond — and the Claimant submits cuts against the grain of — what is recorded in contemporaneous documents. There was no disagreement as to the approach, but the Defendant submits the witness evidence goes with the grain of the contemporaneous evidence.
The reference to evidence which goes with or against the grain is derived from Herefordshire Waste Watchers Ltd v Herefordshire Council [2005] EWHC 1919 (Admin), in which Elias J (as he then was) considered at [45] to [49] whether he could have regard to observations in a witness statement to make good a lack of clarity in the contemporaneous decision-making log. He observed:
“47. … as the principles enunciated in Nash and indeed the decision in Ermakov make plain, any supplementary reasons must elucidate or explain and not contradict the written reasons. It will be rare indeed for an inconsistent explanation, given in the course of the judicial review proceedings, to be accepted as the true reason for the decision.
48 This is in accordance with basic principles of fairness. Plainly the courts must be alive to ensure that there is no rewriting of history, even subconsciously. Self deception runs deep in the human psyche; the truth can become refracted, even in the case of honest witnesses, through the prism of self justification. There will be a particular reluctance to permit a defendant to rely on subsequent reasons where they appear to cut against the grain of the original reasons.”
I have also borne in mind the observations regarding evidence based on recollection made by Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [15] to [22]. In particular, as Leggatt J observed at [18]:
“Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.”
The parties drew my attention to R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302, R (Nash) v Chelsea College of Art and Design [2001] EWHC Admin 538, Caroopen v Secretary of State for the Home Department [2017] 1 WLR 2339 and R (Uber London Ltd) v Transport for London [2018] EWCA Civ 1213.
I note, in particular, that in Caroopen at [30] Underhill LJ endorsed Stanley Burnton J's recognition, in Nash, that
“even in a case where there was no explicit statutory duty to give reasons the courts should approach attempts to rely on subsequently-provided reasons with caution; and he said that that was particularly so in the case of reasons put forward after the commencement of proceedings and where important human rights are concerned.”
Most recently the Court of Appeal addressed the approach to retrospective judgments when assessing proportionality in the Uber case at [40] to [42]:
“ Ex-post facto reasoning
40. In determining whether a measure is proportionate, the court may consider information, evidence or other material available at the time it gives its ruling and is not confined to considering the material available when the decision to implement the national measure was taken: Scotch Whisky Association v Lord Advocate 2017 SLT 1261 at [65].
41. However, a public authority should not be afforded the same margin of appreciation in relation to justifications and material supporting them which it did not take into account when imposing the relevant restriction, and which it only developed in response to litigation. This point was made by the Supreme Court in Re Brewster [2017] 1 WLR 519 at [50]:
“But the margin of discretion may, of course, take on a rather different hue when, as here, it becomes clear that a particular measure is sought to be defended (at least in part) on grounds that were not present to the mind of the decision-maker at the time the decision was taken. In such circumstances, the court's role in conducting a scrupulous examination of the objective justification of the impugned measure becomes more pronounced.”
42. The Supreme Court went on to state that, if the justifications were real and within the decision maker's competence, a reviewing court must afford him deference. It continued at [52]:
“[o]bviously, if reasons are proffered in defence of a decision which were not present to the mind of the decision-maker at the time that it was made, this will call for greater scrutiny than would be appropriate if they could be shown to have influenced the decision-maker when the particular scheme was devised. Even retrospective judgments, however, if made within the sphere of expertise of the decision-maker, are worthy of respect, provided that they are made bona fide.”
It was then held at [55], for the purpose of that appeal:
“the test to be applied is that of ‘manifestly without reasonable foundation’. Whether the test requires adjustment to cater for the situation where the proffered reasons are the result of deliberation after the decision under challenge has been made may call for future debate. Where the state authorities are seen to be applying ‘their direct knowledge of their society and its needs’ on an ex post facto basis, a rather more inquiring eye may need to be cast on the soundness of the decision.””
C. The facts
On 22 February 2016, the Department for Education's Due Diligence and Counter Extremism Group (“DDCEG”) raised a concern with Counter Terrorism Command of the Metropolitan Police (SO15) regarding a “ radicalisation risk to a pupil” at a school in East London (“the Claimant's former school”). This was a referral pursuant to the Government's “ Prevent Strategy”, the aim of which is to stop people becoming terrorists or supporting terrorism.
DDCEG's briefing note stated that a concern had been raised in December 2015 by a tutor (“the source”) “who provides online tutoring to a Year 7 boy called [REDACTED] 1”. The briefing note continued:
“She has tutored him for a year and over that time has seen his behaviour change and has highlighted these as a concern:
• Talks about America being evil
• Obsessed with killing the PM
• Like [sic] Game of Thrones because of the beheadings
• Changed his email address to @ISbeards.
He has lost interest in his school work.
The tutor has tried to engage with the boy but he is no [sic] open to alternative views. She has not spoken to the mother (no further details regarding the mother) as she fears that the views come from her (no further context provided to substantiate this claim).”
The feedback regarding the Claimant provided to DDCEG by the Claimant's former school (which it was noted had been rated as Outstanding following an Ofsted inspection in June 2015) indicated “some issues with timekeeping and his behaviour and attention in class, but he is noted as bright. There are no concerns mentioned in relation to extremism”.
The Prevent referral was initially allocated to PC Gareth Nash who was located in the London Borough of Newham. On 24 February 2016, he created an “Intelligence Development Plan” (known as the “Dev Plan”). The Dev Plan consists of contemporaneous...
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