The Queen, on the Application of (1) RMC (2) FJ v Commissioner of Police of the Metropolis Secretary of State for the Home Department (Interested Party) (1) Liberty (2) Equality and Human Rights Commission (Interveners)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Mr Justice Kenneth Parker |
| Judgment Date | 22 June 2012 |
| Neutral Citation | [2012] EWHC 1681 (Admin) |
| Docket Number | Case Nos: CO/12476/2010 and CO/5572/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 June 2012 |
and
and
[2012] EWHC 1681 (Admin)
Lord Justice Richards
and
Mr Justice Kenneth Parker
Case Nos: CO/12476/2010 and CO/5572/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephen Cragg and Azeem Suterwalla (instructed by Bindmans LLP for RMC and Hickman and Rose for FJ) for the Claimants
Jeremy Johnson QC (instructed by the Directorate of Legal Services, Metropolitan Police Service) for the Defendant
Jonathan Moffett (instructed by The Treasury Solicitor) for the Secretary of State
Grodon Nardell QC and Rory Dunlop (instructed by the Legal Director of Liberty) for Liberty
The Equality and Human Rights Commission made written submissions settled by Alex Bailin QC and Elizabeth Prochaska
Hearing dates: 15–16 March 2012
This is another in the line of cases dealing with the lawfulness of retention of data by the police after a person has been arrested on suspicion of an offence but has subsequently not been proceeded against or has been charged and acquitted.
In R (GC) v Commissioner of Police of the Metropolis [2011] UKSC 21, [2011] 1 WLR 1230 the claimants' complaints related to the indefinite retention of fingerprints and DNA samples pursuant to s.64 of the Police and Criminal Evidence Act 1984 ("PACE") and guidelines issued by the Association of Chief Police Officers ("ACPO"). The Supreme Court, applying the decision of the European Court of Human Rights in S v United Kingdom (2009) 48 EHRR 50 (at p.1169), held that the indefinite retention of the claimants' data was an unjustified interference with their rights under art.8 ECHR and granted a declaration that the ACPO guidelines were unlawful. The court left open the question whether the retention of photographs of arrested persons who were not subsequently convicted of the offence for which they were arrested violated their art.8 rights. It also left open a question concerning the retention of certain information on the Police National Computer ("the PNC"). The first of those questions is raised by both the present claims and is the main issue before us. The second question is raised as a secondary issue by one of the claims.
There are two claimants, referred to respectively as RMC and FJ: their identities are protected by a court order.
RMC is a middle-aged woman of good character who attended voluntarily at a police station on 20 April 2007 and was arrested on suspicion of an assault occasioning actual bodily harm to a police community support officer who had stopped her riding a pedal cycle on the footway. She was interviewed, fingerprinted and photographed, and DNA samples were taken from her. The matter was investigated and was referred to the CPS, which decided on 2 May 2007 not to prosecute. Through her solicitors she subsequently sought unsuccessfully to secure the destruction of her fingerprints, DNA samples and photographs. She then brought a judicial review claim challenging the retention of all such data. Permission to apply for judicial review was refused in respect of the retention of fingerprints and DNA samples, on the ground that that issue had been examined in R (GC) v Commissioner of Police of the Metropolis and no useful purpose would be served by further proceedings. Permission was granted, however, in respect of the retention of photographs.
FJ is a boy now aged 15 who attended voluntarily at a police station on 3 April 2009, at the age of 12, and was arrested on suspicion of rape of his second cousin. He was interviewed in the presence of a solicitor, was fingerprinted and photographed, and DNA samples were taken from him. He was bailed to return on 1 July 2009. On 23 June 2009, however, following further enquiries, the decision was taken to cancel bail and to take no further action. In his case, too, unsuccessful requests were made to have the relevant data destroyed and a judicial review claim was then brought. Again, permission was refused in respect of fingerprints and DNA samples, by reference to R (GC) v Commissioner of Police of the Metropolis, but it was granted in respect of photographs and the retention of certain information about FJ on the PNC.
Legislative and policy framework
The retention and destruction of fingerprints and DNA samples are governed by s.64 of PACE. It is unnecessary for present purposes to set out the detailed provisions of that section.
The photographing of suspects, and the use, disclosure and retention of such photographs, are governed by s.64A of PACE. The material subsections are these:
"(1) A person who is detained at a police station may be photographed –
(a) with the appropriate consent; or
(b) if the appropriate consent is withheld or it is not practicable to obtain it, without it.
…
(4) A photograph taken under this section –
(a) may be used by, or disclosed to, any person for any purpose related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution or to the enforcement of a sentence; and
(b) after being so used or disclosed, may be retained but may not be used or disclosed except for a purpose so related."
On the wording of subs.(4)(b), the power to retain arises after the photograph has been used or disclosed for a purpose in subs.(4)(a). Mr Johnson QC submitted on behalf of the Commissioner that this authorises retention "even after" (not "only after") the photograph has been used or disclosed, and that it is implicit in the section that retention is also authorised pending use or disclosure of the photograph in the first place. Mr Cragg did not dispute the point, and he made it clear that the claimants do not contend that retention of their photographs fell outside the statutory power. Their case is that, once the decision had been taken not to proceed against them, the continued retention of their photographs was in breach of their rights under art.8.
Paragraphs 5.12 to 5.18 of Code D of the PACE Codes of Practice lay down various requirements concerning the photographing of detainees but I do not need to refer to them in detail.
In the exercise of powers under, inter alia, s.39A of the Police Act 1996, the Secretary of State has issued a Code of Practice on the Management of Police Information, dated July 2005 ("the MoPI Code of Practice"). By s.39A(7), chief officers are required to have regard to the Code in discharging any function to which the Code relates. Paragraph 2.2.1 of the Code defines "police information" as "all information, including intelligence and personal data obtained and recorded for police purposes". Paragraph 2.2.2 provides that for the purpose of the Code, "police purposes" are "(a) protecting life and property, (b) preserving order, (c) preventing the commission of offences, (d) bringing offenders to justice, and (e) any duty or responsibility of the police arising from common or statute law". Further relevant provisions of the Code are as follows:
" 3.1 National guidance on management of police information
3.1.1 Guidance under this Code will: —
…
(b) direct the management of police information within police forces so as to ensure consistent procedures throughout the police service for obtaining, recording, storing, reviewing, deleting and sharing information …
3.2. An Information Management Strategy to be applied within each police force
3.2.1 Chief officers will establish and maintain within their forces an Information Management Strategy, under the direction of an officer of ACPO rank or equivalent, complying with guidance and standards to be issued under this Code ….
3.3 National system requirements for the management of police information
3.3.1 For the purpose of achieving throughout the police service the standards described at 3.1.1 above, guidance issued under this Code … may specify procedures to be adopted within police forces for the management of police information systems ….
4.1 Duty to obtain and manage information
…
4.1.2 Chief officers must ensure that arrangements within their forces for the management of police information comply with the principles set out in the following paragraphs, and with guidance issued under this Code to give effect to these principles.
…
4.5 Review of police information
4.5.1 Information originally recorded for police purposes must be reviewed at intervals to be prescribed in guidance under this Code ….
4.6 Retention and deletion of police information
4.6.1 On each occasion when it is reviewed, information originally recorded for police purposes should be considered for retention and deletion in accordance with criteria set out in guidance under this Code …."
Guidance on the Management of Police Information ("the MoPI guidance"), which according to its preface "describes the processes that support the principles set out in the MoPI Code of Practice", has been produced by the National Policing Improvement Agency on behalf of ACPO. The first edition came into effect on 1 April 2006. The current, second edition is dated 2010. The MoPI guidance uses the same definitions of "police information" and "police (or policing) purposes" as in the MoPI Code of Practice. Section 7 of the guidance contains detailed provisions on the review, retention and disposal of police information. The introduction to that section refers to the need for chief officers to balance resources against...
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