Jeremy Johnson QC and Charlotte Ventham successfully defend a challenge to the retention by the police of records of convictions and associated data

R (XX) v (1) Secretary of State for the Home Department, (2) Chief Constable of South Yorkshire, (3) ACPO, (4) Secretary of State for Justice

In December 2014 the Administrative Court gave judgment in a claim brought by XX, a convicted child sex offender, challenging the legality of various schemes which provided for the collection, retention and disclosure of information relating to his offending history. As originally formulated, XX’s claim (insofar as it directly engaged the police) was that the systematic retention by the police of details of his convictions breached his right to respect for his private life under Article 8 ECHR. He sought inter alia an order quashing the decision to retain such data on the PNC. The claim was ambitious in the extreme, relying heavily on the case of MM v United Kingdom (24029/07) in which the European Court of Human Rights had held that the scheme governing the retention and disclosure of caution data was not “in accordance with the law” for the purposes of Article 8.

It became common ground in the course of the hearing that the police were entitled to retain XX’s conviction data on the PNC and the focus of the challenge shifted to a complaint about the data relating to XX which must be held elsewhere. The essence of XX’s argument remained however that the schemes under which the police retain and disclose such data (1) engaged his Article 8 rights; (2) were not in accordance with the law because they were arbitrary; and/or (3) were, because of their arbitrary nature, disproportionate and therefore incapable of justification.

Dingemans J held as follows:

1. Article 8 was engaged by the systematic collection, ordering and possible disclosure of certain data relating to XX. The Court expressly declined to decide whether the record of convictions itself was capable of engaging Article 8 in circumstances where the convictions were publicly recorded following events in open court and were not spent, in light of the fact that other data held by the police clearly did engage Article 8.

2.There was a comprehensive scheme providing for the retention of data by the police. The police purposes for which the data is retained are clearly identified. The storage of such data by the police is controlled by the provisions of the Data Protection Act 1998 (“DPA”) which provides important safeguards in respect of the processing of data. Further, the MoPI Guidance, MAPPA Guidance and the Child Sex Offender Disclosure (“CSOD”) Scheme are public standards which can be applied to the management of data held by the police and they make express reference to the DPA and HRA. The publication of those standards provides adequate protection against arbitrariness. The statements made by the European Court in MM were made on the facts of that particular case and the decision was based on a number of factors specifically relating to caution data. The common law provided a sufficiently certain source of powers on the facts of this case.

3. The collection, ordering and possible disclosure of data is in pursuit of the legitimate aims of public safety, the prevention of crime and the protection of the rights and freedoms of others and is proportionate and justifiable. The retention by the police of data about XX will assist them in managing the risk posed by XX in the community and in protecting XX from unjustified attack. The evidence demonstrated that careful decisions have been made in the past about disclosure of information relating to XX. A recent decision had been made not to release XX from the notification requirements arising out of his convictions and this had not been challenged. There was in all the circumstances a need to hold such data to enable the police to act in accordance with police purposes.

4. The amendments made to the CSOD scheme and the MAPPA Guidance properly implemented the decision of the Admin Court in an earlier challenge brought by XX (R(X) v Secretary of State for the Home Department [2013] 1 WLR 2638).

The full text of the judgment can be found here.

Jeremy Johnson QC and Charlotte Ventham acted for the Chief Constable of South Yorkshire and ACPO.