YZ v The Chief Constable of South Wales Police
| Jurisdiction | England & Wales |
| Judge | Lady Justice Andrews,Lady Justice Simler,Lord Justice Peter Jackson |
| Judgment Date | 19 May 2022 |
| Neutral Citation | [2022] EWCA Civ 683 |
| Docket Number | Case No: CA-2021-001412 |
| Court | Court of Appeal (Civil Division) |
and
[2022] EWCA Civ 683
Lord Justice Peter Jackson
Lady Justice Simler
and
Lady Justice Andrews
Case No: CA-2021-001412
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN CARDIFF
HIS HONOUR JUDGE JARMAN QC
(SITTING AS A JUDGE OF THE HIGH COURT)
[2021] EWHC 1060 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Ramby de Mello and Daniel Bazini (instructed by Instalaw Ltd) for the Appellant
Alan Payne QC and Amy Clarke (instructed by Special Legal Casework Department, South Wales Police) for the Respondent
Jason Beer QC and Robert Talalay (instructed by Directorate of Legal Services, Metropolitan Police Service) for the Intervener
Hearing date: 4 May 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30am on Thursday 19th May 2022.
INTRODUCTION
This is an appeal against the decision of HH Judge Jarman QC (sitting as a Judge of the High Court) (“the Judge”) made in a judgment handed down on 30 April 2021, [2021] EWHC 1060 (Admin), dismissing a claim for judicial review. For reasons which will become apparent, an order was made by the Judge pursuant to CPR 39.2(4) preventing the identification of the Appellant or any details leading to his identification in any report of the proceedings or of the judgment of the court below. At the start of the hearing of this appeal, a similar order was made in respect of the appeal and the judgments of this court. Accordingly I shall refer to the Appellant as “YZ”.
The claim for judicial review which gave rise to the decision under appeal began as a challenge to the lawfulness of the Respondent's decision to refuse to delete from records on the police national computer (“PNC”) data pertaining to YZ's acquittal of serious criminal offences. As I will explain, the target of the challenge (and the grounds) expanded in a less than satisfactory manner as the claim progressed.
Before us, Mr de Mello, on behalf of YZ, confirmed that what his client now seeks (and sought at the hearing below) is the erasure from all police records, national and local, of all personal and sensitive data (including information provided to the police from other agencies), even if it is plainly of relevance to risks that he might pose to others. He wishes to be put in the same position as any member of the public who had never been of interest to the police: or, to use the vernacular, to have a “clean sheet”.
That is an ambitious target, all the more so because YZ has never asked the Respondent to delete any data other than those specifically pertaining to his acquittal (which, by necessary implication, includes the nature and details of the offences with which he was charged). Therefore, as Mr Payne QC pointed out on behalf of the Respondent, there has never been a specific decision refusing to delete the further data from all police records, which could be made the target of a claim for judicial review. Whilst he accepted that in theory a claim could be brought for judicial review of the continued retention of such data without such a request having been made, Mr Payne submitted that such a claim would necessarily involve a challenge to the lawfulness of the policies applied to their retention, rather than to any individual decision or the reasons for it, and that is not the way in which the claim has been framed.
As Mr de Mello expressly confirmed, there is no challenge to the lawfulness of the policy applicable to requests for the deletion of records on the PNC, which is a national policy reflected in guidance published by the National Police Chiefs' Council (“NPCC”) and which was applied by the decision-makers in making the impugned decisions (“the Guidance”). Instead, Mr de Mello put the Appellant's case on the basis that the obligations on a controller of data are set out in the Data Protection Act 2018 (“ DPA”) and if, as he contends, the Guidance (or an aspect of it) has not kept pace with the legislation, “it is the latter that steers the analysis and the result.”
The Guidance applies only to data held on the three national police systems, the PNC, the National DNA database (NDNAD) and the National Fingerprints Database (IDENT1). Its stated purpose is to ensure that a consistent approach is taken by specified Chief Officers of Police (who are the controllers of the data for the purposes of the DPA) in relation to dealing with applications for the deletion of records from those three databases.
Whilst the information held on the PNC is relatively limited, it may be duplicated on local records, which may also contain other intelligence gathered by the police about the individual concerned. These records include Niche RMS, which is an operational police records management system. The digitised version is used to store scanned copies of legacy paper crime files held by the local police force. The records also include the CATS (legacy Domestic Abuse and Child Abuse Case Administration Tracking System). Records held locally by Chief Officers, whether stored on electronic document management systems or on paper, are managed in accordance with the Authorised Professional Practice on Management of Police Information published by the College of Policing (“MoPI APP”). There is no challenge by YZ to the lawfulness of the policy reflected in the MoPI APP. Nor is that policy said to be unfair.
In consequence of the fact that neither of the applicable policies has been challenged, neither the Judge nor this court had the advantage of seeing the type of evidence that was adduced in R(QSA and others) v NPCC [2021] EWHC 272 (Admin), [2021] 1 WLR 2962, in which the Divisional Court rejected a challenge to the lawfulness of an aspect of the Guidance relating to the long-term retention of data about a subject's criminal convictions. We did, however, have the benefit of helpful written and oral submissions from Mr Beer QC and Mr Talalay on behalf of the NPCC, which obtained permission to intervene in the appeal. The Judge did not have the same benefit, because the NPCC only found out about the claim after his judgment was handed down.
It follows that, when considering the grounds of appeal, the Court must proceed upon the assumption that the relevant policy applied by the decision maker(s) is lawful and compatible with Art 8 ECHR. This fatally undermines YZ's challenge to the retention of all the data about him on local police records, including “sensitive data”, because it was and is retained in accordance with a lawful policy. This point was made in the Respondent's notice, and Mr de Mello had no answer to it.
Strictly speaking, that makes it unnecessary to address the arguments raised by YZ in respect of data held on local police records, other than data duplicating the data on the PNC which was the specific subject of the request for deletion. Nevertheless, in this judgment I have taken into consideration and addressed all the submissions made on behalf of YZ in respect of all the data, wherever held. For the reasons set out below, I have reached the conclusion that this appeal should be dismissed.
THE GUIDANCE
There have been several versions of the Guidance since it was first published in March 2015. It was specifically amended and updated in June 2018 following the coming into force of the DPA. The most recent version of the Guidance was published in 2019. We were told by Mr Beer on instructions that a review of that version is currently being undertaken. There are no material differences between the versions which were in force at the time of the impugned decisions.
A PNC record will contain information about non-conviction outcomes, which are referred to in the Guidance as an individual's “Event History”. Such outcomes specifically include acquittals and verdicts of “Not Guilty” on the direction of the judge. Para 1.5.5 of the Guidance provides that:
“under this Guidance, PNC records are required to be retained until a person is deemed to have reached 100 years of age. However, Chief Officers can exercise their discretion, in exceptional circumstances, to delete records for which they are responsible, specifically those relating to non-court disposals… as well as any “Event History” owned by them on the PNC, but only where the grounds for so doing have been examined and agreed.”
The Guidance encourages individuals seeking the deletion of an “Event History” from the PNC to complete a formal application and state the grounds for having their records deleted. Paragraph 5.3.3 of the Guidance states that the submission of a record deletion application to a police force should also be treated as a MoPI review, prompting forces to review all the information that they hold.
Paragraph 5.3.4 refers to examples of the grounds that Chief Officers are obliged to consider which are set out in Annex B to the Guidance, describing the list as “indicative but not prescriptive”. It states that the Chief Officer must exercise professional judgment in deciding whether the early deletion of the data is reasonable, based on “all the information that is available to them”. Paragraph 5.3.5 makes it clear that the review is not confined to the grounds specifically identified by the applicant. If those grounds are considered to be insufficiently evidenced, it is best practice to consider whether any other grounds are applicable. Paragraph 5.3.7 states that, whilst providing supporting information and circumstances surrounding the event sought for deletion is not a legal...
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