The Queen (on the application of M by her Litigation Friend the Official Solicitor) v The Chief Constable of Sussex Police
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lieven |
| Judgment Date | 15 April 2019 |
| Neutral Citation | [2019] EWHC 975 (Admin) |
| Date | 15 April 2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4645/2018 |
[2019] EWHC 975 (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 Lieven DBE
Case No: CO/4645/2018
and
Eric Metcalfe (instructed by Matthew Gold) for the Claimant
Elliot Gold (instructed by Weightmans LLP) for the Defendant
Hearing dates: 27 February 2019
Approved Judgment
Introduction
This is a challenge to the decision of the Defendant, the Chief Constable of Sussex Police, to share data about the Claimant, M, with the Interested Party, a Business Crime Reduction Partnership in the Defendant's area (BCRP).
The Claimant is a vulnerable 16 year old girl. She has gone missing from home on a large number of occasions and was excluded from school. She has convictions for shoplifting and assault and according to the Police has since 31 October 2017 been reported for over 50 incidents of violence, theft or anti-social behaviour, largely or exclusively in the Defendant's area. She has been assessed by the local authority as being at risk of child sexual exploitation. She lives with her Mother, who has made a number of witness statements in this action.
BCRP is an organisation with more than 500 members. This includes a large number of local businesses including retailers both local and national and a number of private security firms, pubs, bars and nightclubs. The principal function of the BCRP is its management of an exclusion notice scheme, prohibiting persons from entering its members' commercial premises. The Claimant was made subject to an exclusion order on 7 November 2017 for a period of 12 months.
The Issues
The Claimant brings two analytically separate challenges. Firstly, she challenges the Defendant's Agreement to share information with the BCRP, in particular sensitive personal data, contrary to the Data Protection Act 2018 (Issue One). Secondly, she challenges the past disclosure of her sensitive personal data by the Defendant to the Interested Party (Issue Two).
Issue one is essentially forward looking, whereas issue two involves considering past decisions and actions. The position is somewhat complicated by the chronology. The Defendant has been in an Information Sharing Agreement with the Interested Party since at least 2013. As of November 2017, the ISA in force was version 10 (ISA2017). At this point the Data Protection Act 1998 was in force. The Data Protection Act 2018 then came into force on 25 May 2018. The Claim was lodged on 20 November 2018. The Defendant entered into a new Information Sharing Agreement in December 2018 (ISA2018). The position when the Claimant's sensitive personal data was shared by the Defendant with the BCRP is not entirely clear for the reasons I will explain below. However, it was agreed that the majority of the disclosure (at least 4 out of 5 occasions) about which the Claimant complains, took place before 25 May 2018, i.e. under the 1998 Act.
The upshot of this chronology is that Issue One is now focused upon whether the ISA 2018 meets the requirements of the Data Protection Act 2018. The question of whether the ISA 2017 met the terms of the 2018 Act is now only of historic interest (and potentially issues that may go to costs); whereas Issue Two largely concerns whether disclosures under the ISA 2017 were in breach of the DPA 1998.
I will focus below on the Issue One position, i.e. whether ISA 2018 meets the legal requirements of the DPA 2018, but where relevant for Issue One set out the differences under the earlier agreement and the DPA 1998. I will then turn to Issue Two, and whether the individual disclosures, which the Claimant complains about, occurred in breach of the DPA 1998 and DPA 2018, as applicable.
Disclosure
The other complicating factor in this case, which I should deal with at the outset, is the position on disclosure to the Court and the Defendant's duty of candour. As is well known in judicial review the Defendant is under a duty to “ assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide” ( R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 at para 50 Laws LJ). This duty extends to disclosure of “ materials which are reasonably required for the court to arrive at an accurate decision” ( Graham v Police Service Commission [2011] UKPC 46, para 18). In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2016] UKSC 35, Lord Kerr cited with approval the following summary:
“A defendant public authority and its lawyers owe a vital duty to make full and fair disclosure of relevant material. That should include (1) due diligence in investigating what material is available; (2) disclosure which is relevant or assists the claimant, including on some as yet unpleaded ground; and (3) disclosure at the permission stage if permission is resisted. … A main reason why disclosure is not ordered in judicial review is because courts trust public authorities to discharge this self-policing duty, which is why such anxious concern is expressed where it transpires that they have not done so (Fordham, Judicial Review, 6 th ed, 2012, p125).”
On 18 December 2018 Lang J granted permission for judicial review and ordered the Defendant to file Detailed Grounds of Defence and “any written evidence” within 28 days of the order, i.e. by 15 January 2019. No Detailed Grounds were filed, but the Defendant subsequently explained this was because they had intended to simply rely on the Summary Grounds. They did file three witness statements, but it was entirely clear to the Claimant (and subsequently to me at the hearing) that this evidence, together with the Summary Grounds of Defence, did not amount to full and fair disclosure of relevant material. The Claimant then issued a Part 18 request. The Defendant declined to respond to this on the basis that they said it did not touch on the primary question in the judicial review.
On 22 February 2019 the Defendant applied to rely on further evidence. This consisted of a second witness statement from Ms P of BCRP, together with a series of obviously highly relevant documents including the BCRP Constitution, Code of Practice, Data Integrity Agreement and Policy for processing personal data on children and minors on the basis of legitimate interest; as well as the ISA2018, which had been entered into on 18 December 2018. The only explanation for the extremely late disclosure of these documents was that there had been poor communication between BCRP and the Police. The Claimant did not object to the admission of this evidence, provided she was permitted to amend her Claim. I allowed the evidence to be admitted, ordered relief from sanction, and allowed the Claim to be amended to now cover the 2018 ISA.
However, even with this additional evidence it remains the case that it is virtually beyond doubt that there is further relevant material which still has not been disclosed. In particular, and this is important for Issue Two, the Court has not seen the actual record of disclosure from the Police to BCRP in respect of M on the occasions I refer to below. Further, the position remains unclear as to the terms of Operation C (a police operation of which M was one of the subjects), and the degree to which it was specifically targeted around young people who were at risk of child sexual exploitation (CSE), which is relevant to one part of Issue Two.
The consequence of this apparent failure to properly comply with a duty of candour is twofold. Firstly, I cannot be confident as to precisely what was disclosed and in what terms to BCRP. Secondly, it has relevance to the weight I can attach to the various policy documents Mr Gold, who appears for the Defendant, relies upon to seek to persuade me that there are adequate safeguards in place, to ensure that the disclosure of material is in accordance with law. Given the difficulty which the Defendant appears to have had accessing the relevant documents for the purposes of disclosure, there must be some concern as to whether safeguards set out in those documents can be relied upon. I will return to this point when dealing with Issue One.
The Business Crime Reduction Partnership (BCRP)
The BCRP consists of an Executive Committee, a Board of Management and the members. One of the Defendant's Chief Inspectors is on the Executive Committee.
The members submit incident reports to the Board of Management, and the Police may also submit reports, whether of their own motion or on request. Once an individual reaches a certain threshold then certain information about them is shared with BCRP members via a secure intranet site and secure mobile application. The information that the BCRP holds on an individual (including M) comes from a variety of sources. The decision as to whether to exclude an individual is made by BCRP Management Committee.
There are a number of documents produced by the BCRP which are relevant to the issue of data sharing, including the Constitution, the Code of Practice, and the Data Integrity Agreement.
The BCRP has a constitution, signed in 2004. That provides that the Board of Management is the data controller for the BCRP. It appears that under the constitution it is the Executive Committee that decides the type of information that will be shared with participating members.
The BCRP also has a Code of Practice, which I understand applied at all relevant dates. The relevant parts are as follows;
(a) Para 1.1 “This code of practice is to control the management, operation, compliance and use of data within...
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The Queen (on the application of M) v The Chief Constable of Sussex Police
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