Veronica Strain, R (on the application of) v The Chief Constable of Greater Manchester Police

This is an appeal by Ms Veronica Strain against the refusal by HHJ Sephton KC (“the Judge”) sitting in the Administrative Court of permission to apply for judicial review of a decision taken on 11 November 2021 by the respondent, the Chief Constable of Greater Manchester Police. By that decision the respondent decided not to delete an Intelligence Report, reference number NIR/19/Q0075571 (“the Intelligence Report”), from the respondent’s records.

The appellant applied for permission to appeal on a number of grounds. Warby LJ granted permission on one ground only. The decision on the grant of permission is expressed in the following terms:

“Permission to appeal granted on the following grounds (falling within Ground 9): that HHJ Sephton KC failed adequately to consider whether the claimant had a sufficiently arguable case that (1) in processing the appellant’s personal data in the Intelligence Report that is the subject of the claim Manchester was in breach of its duties under the GDPR and/or the DPA 2018 in that the report was unfair, inadequate, irrelevant, inaccurate or not up to date; (2) Manchester was thus under a duty to agree to the appellant’s erasure request; and (3) the court should grant remedies accordingly.

Permission to appeal refused in respect of all other grounds of appeal.

Costs capping application refused.”

Warby LJ also directed that the parties address “the question of whether permission to pursue this claim (assuming it has merit) should be refused on the grounds of alternative remedy”.

The appellant raised a number of issues in her written and oral submissions on this appeal. This Court, however, is limited to consideration of the issues contained in the grant of permission. Accordingly, the issues for this Court are:

The following is a brief summary of the facts that are relevant to this appeal. The Intelligence Report arises out of a visit made by two police officers of the Greater Manchester force to the appellant on 5 April 2019. The background to that visit is that the appellant had previously lived in Nottinghamshire. She had made complaints to Nottinghamshire Police that her then partner had used domestic violence against her. She ceased to live with her partner at some stage in 2014. She left Nottinghamshire in 2016 and moved to Manchester. The appellant was dissatisfied with the way in which Nottinghamshire Police had dealt with her complaints of domestic abuse and by the fact that they had also recorded allegations made against her by her former partner.

On 5 April 2019, the appellant telephoned the personal assistant of the Police and Crime Commissioner for Nottinghamshire. The appellant told the personal assistant that she, the appellant, was going to set fire to herself outside a police station. The assistant called the police. Two officers from the Greater Manchester force then went to the place where the appellant lived. There is a video recording, taken from one of the officers’ body cameras, of the interaction between the two officers and the appellant. The Judge commented adversely on the conduct of the officers concerned. He noted that they, and one in particular, “emerged from that interview with very little credit at all”. He noted the visit was apparently a welfare visit to ensure the wellbeing of the appellant, whom the police had reason to believe was vulnerable. He said that the attitude of the officers, and one in particular, was confrontational. The officer interrupted the appellant on several occasions, threatened to arrest her and touched her in a manner that she interpreted as assault. In fairness, the Judge said that the appellant also appeared to him in the video as being confrontational. She had raised her voice on several occasions, and she recorded the interview in a way that appeared to be designed to interrupt the flow of conversation between the parties. The Judge said that she was at times emotional and said that the police were corrupt and explained that she hated the police and that she made a vulgar gesture every time she passed the police in her car. The Judge noted that she said in response to a question from one of the officers that she had said she was going to Nottingham to stand outside the police station and set herself on fire because the Chief Constable was refusing to respond to e-mails. It was agreed that she had posted a screenshot taken during the police visit on social media.

On 6 April 2019, the next day, one of the police officers (not the one subject to particular criticism by the Judge) made a record of the visit which was in the following terms:

“Following attending [address] due to reports of Veronica STRAIN stating she was going to set herself on fire outside a police station we were met by Strain at the communal door to the property. Strain was in a very erratic and confrontational state and went from shouting at officer to crying on multiple occasions. Strain has moved from Nottingham following a long term DV relationship where she has been identified as the offender and has since made complaints to the IOPC 4 times in relation to police corruption and mishandling of investigations. Each time the IOPC has referred this to Notts PSB who have concluded the investigations. Strain was not happy with the outcome of this and is in the process of making a further complaint. While officers were present Strain presented as anti-police due to what had occurred with Notts police and filmed officers, later posting this on social media. Strain stated that she had said she would set herself on fire to get a reaction from Notts police and crime commissioner to get a response. An ambulance was contacted and triage spoke with Strain who refused any NHS support. Whilst present Strain mentioned on numerous occasions about the attending officers being male and chauvinistic and sent to bully her on behalf of Notts. I would recommend female officers to attend in future if possible.”

On 13 July 2021, the appellant made a data subject access request to the respondent. The Intelligence Report, amongst other documents, was disclosed in response. On 21 October 2021, the appellant requested that the Intelligence Report be erased, identifying four features to which objection was taken, namely (1) she was not an identified domestic violence offender (she was a complainant); (2) she was not anti-police; (3) she did not put the video of the two officers’ visit on social media but only put a screen shot on her Twitter account; and (4) she did not threaten or state that she was going to Nottingham to set herself on fire.

That erasure request was considered. The appellant draws attention to two documents prepared in the course of consideration of that request. The first is a national retention assessment criteria template and the second is an e-mail dated 10 November 2021. By letter dated 11 November 2021 the respondent refused the request. It reads:

“Dear Ms Veronica Strain,

RE: Deletion Request of Intelligence Report (NIR/19/Q0075571)

I write regarding your recent request for deletion of information (Intelligence Report) held on your nominal record on GMP’S Local policing systems.

The Force has now taken the opportunity to consider your request for record deletion under the Provisions of the NPCC Guidance and GMP’s retention policies on the deletion of information held on GMP’s policing systems.

Your ground for recorded deletion is that you dispute the intelligence report being recorded and retained unlawfully against yourself.

It can now be confirmed that your personal information was lawfully processed and held by GMP for the purposes of law enforcement processing under part 3 of the Data Protection Act 2018 (DPA 2018), i.e the prevention or detection of detected crime, the apprehension and prosecution of the offender, protection of life and property and the maintenance of law and order.

The record of intelligence made against you, held on GMP’s local systems will be retained, the reported intelligence merely constitutes a record of fact, in so much as the reported information was received and recorded, you were the named person of concern and a safe and welfare check ensued to which you were spoke to etc.

Furthermore the intelligence report has not qualified for removal as there has been no set clear period for such report to be deleted as per Management of Police Information (MOPI) such details can be found on the College of Policing website in regards to collection, recording and review/retention of information for a policing purpose (see attached link).

https:/www.app.college-police.uk/app-content/information-management/management-of-police-information/collection-andrecording/

Therefore, in line with the above GMP is under a duty to keep the information recorded against you for future policing purposes i.e the prevention or detection of crime, the apprehension and prosecution of an offender, protection of life and property and the maintenance of law and order.

Please also note your information rights (complaint rights), The Information Commissioner Office https://ico.org.uk/

I trust that this letter has helped to clarify our position on your deletion request.”

The appellant made a complaint to Nottinghamshire Police. By letter dated 29 November 2021, an officer in the professional standards directorate explained that the crime recording system used by Nottinghamshire was based on selecting descriptions from a list or drop-down menu and that had not included alleged perpetrator of domestic abuse rather than perpetrator as an option. That, he said, was being corrected and in the interim he had manually amended their records to show that the appellant was an alleged perpetrator not a perpetrator. The appellant, of course, firmly believes that Nottinghamshire police are wrong to treat her as an alleged perpetrator. She firmly believes that Nottinghamshire police are not correct in treating her former partner’s allegations, or complaints, as properly based complaints of domestic violence against her. She believes that she, and she alone, was the victim of domestic abuse in her previous relationship. It is not for this Court to resolve that issue on this appeal.

The appellant also sent a pre-claim letter to the Chief Constable of Greater Manchester Police and this letter was later amended and re-sent to the Chief Constables of both Greater Manchester and Nottinghamshire Police. In a reply dated 12 January 2022, the solicitor for Greater Manchester Police accepted that the description of the appellant as a domestic violence offender was inaccurate and explained that the respondent intended to rectify that in the Intelligence Report. He explained that the information had been confirmed by Nottinghamshire Police but that it was understood that Nottinghamshire Police were correcting their records to refer to the appellant as an alleged perpetrator. The letter further indicated that the Intelligence Report said the appellant presented as anti-police (not was anti-police) and would be amended to explain the reasons why she was considered to have presented in that way, namely that the appellant said she hated the police and would make a gesture (putting up two figures) when she passed them in her car. The letter also indicated that the Intelligence Report would be amended to say that the appellant posted a still photograph rather than the video of the police visit. As to the threat of self-immolation, the appellant had told the officers that she had said that she was going to go to Nottingham and stand outside the police station and set fire to herself.

By a claim form issued on 3 March 2022, the appellant sought judicial review of the decision of 11 November 2021 refusing to remove the Intelligence Report from the records. She also sought an injunction against both Greater Manchester Police and Nottinghamshire Police to prevent any further false information being recorded and “to prevent further harassment” from either force, and damages. The respondent filed an acknowledgement of service indicating that the respondent undertook to issue an amended Intelligence Report, and set out the proposed text, which largely reflected the changes foreshadowed in the response to the letter before claim.

Following consideration of the papers, HHJ Pearce sitting in the Administrative Court refused permission to apply for judicial review by an order dated 14 June and sealed on 17 June 2022. The reasons for refusing permission included, amongst others, that there was no realistic prospect of the appellant succeeding in her claim against the respondent sufficient to justify the grant of permission. Further details were given including that it was not arguable that the current version of the Intelligence Report (i.e. that referred to in the Acknowledgement of Service) did not properly reflect the position. The judge refused to order the appellant to pay the respondent’s costs as it was only after the claim was issued that the appellant obtained the amendment of the Intelligence Report. Permission was refused in relation to the other matters and in relation to Nottinghamshire Police. The appellant applied for the refusal of permission to be reconsidered at an oral hearing in the High Court (that hearing was not an appeal: see CPR 54.12). The grounds in the notice of renewal prepared by the appellant were lengthy but included detailed criticism of the Intelligence Report.

The oral hearing took place on 5 August 2022. The Judge had written and oral representations from the appellant and counsel for the respondent (and also from Nottinghamshire Police). He held that the data in the Intelligence Report were retained for a legitimate purpose namely the performance of the respondent’s duties at common law and under the Human Rights Act 1998. The appellant had said that she intended to set fire to herself and that was something that the police were required to take notice of. The Judge then addressed what he considered was the real issue in the case, namely whether or not the data in the Intelligence Report were accurate. He noted that it had been conceded that the data were not accurate as originally set out as they said that the appellant had been identified as an offender in a relationship involving domestic violence. That was not correct as she was only an alleged offender. The Judge then considered in detail whether the data in the amended Intelligence Report were inaccurate. He considered the contents in detail setting out his reasons for concluding why the information was accurate. The appellant had said that she was going to set herself on fire outside a police station. Having looked at the video recording, the Judge concluded that she had been confrontational. It was the case that she was an alleged perpetrator of domestic violence as well as being a victim of domestic violence. He made it clear that he was not deciding whether the allegations were true or false; simply that it was correct that the allegations had been made. He made it clear that he understood that the appellant was saying that it was common for those who carried out domestic violence to make complaints against the victim, but he was not there to decide the rights and wrongs of that dispute, but to decide whether the data were accurate. He noted that the Intelligence Report did accurately record the appellant’s attitude to the police and gave the reasons why. He therefore refused permission to apply for judicial review.

The amended version of the Intelligence Report was finally provided to the appellant after the hearing and is in the following terms:

“Following attending [address] due to reports of Veronica STRAIN stating she was going to set herself on fire outside a police station we were met by Strain at the communal door to the property. Strain was in a very erratic and confrontational state and went from shouting at officer to crying on multiple occasions. Strain has moved from Nottingham following a long term DV relationship where she has been identified both as an alleged perpetrator and victim according to Nottingham police. None of the DV allegations against either party in the relationship resulted in a successful prosecution. Strain has since made complaints to the IOPC in relation to police corruption and mishandling of investigations. Each time the IOPC has referred this to Notts PSB who have concluded the investigations. Strain was not happy with the outcome of this and is in the process of making a further complaint. While officers were present Strain presented in a manner which officers construed as anti-police (in that she stated that she had a hate for the police and puts her fingers up at them discreetly when driving past them) due to what had occurred with Notts police and filmed officers, later posting a still image of this encounter on social media. Strain stated that she had said “she was going to go to Nottinghamshire to stand outside the police station of the Chief Constable and set [herself] on fire because he is refusing to respond to [her] e-mails where [she had] repeatedly reported the police force for corruption”. An ambulance was contacted and triage spoke with Strain who refused any NHS support. Whilst present Strain mentioned on numerous occasions about the attending officers being male and chauvinistic and sent to bully her on behalf of Notts.”

Ms Strain appealed and, as set out above, was granted permission to appeal on one ground relating to the contents of the amended Intelligence Report. She had submitted a written skeleton argument and made oral submissions at the hearing via a video link for approximately two hours without interruption from the Court. In broad terms, she divided her submissions into going through the issue, dealing with the respondent’s skeleton argument, the Intelligence Report and the data protection law principles, and then considering the case law and judgment of the Judge. Much of her submissions ranged over matters that were not within the scope of the appeal but she was allowed, nevertheless, to address all the points and refer to all the documents, that she wished. I only deal in this judgment with those points that concern the issues that arise on this appeal relating to the Intelligence Report. In brief, the appellant submitted that the Intelligence Report contained not a single word of truth and there was no evidence to back up any of the matters recorded. The Intelligence Report was not accurate and was not based on fact and reflected a stream of consciousness on the part of the police officer who had written it. She submitted that it was a lie that she told the police officers who visited her that she would set herself on fire. The phrase “anti-police” was not defined and it was not a crime. She submitted that it was wrong to record that she was an alleged perpetrator of domestic violence and there was no basis for Nottinghamshire Police to have regarded any of the e-mails sent by the appellant, or other matters, as amounting to material justifying treating her as an alleged perpetrator of domestic violence. She submitted that she was the victim, and the only victim, of domestic violence in the relationship. The appellant submitted that there was no alternative effective remedy to a claim for judicial review. The Information Commissioner did not have legal powers. The Deputy Police and Crime Commissioner and others had said that judicial review was the remedy that the appellant should pursue if dissatisfied.

Ms Idelbi for the respondent had provided a written skeleton argument and made short oral submissions. The respondent also filed a Respondent’s Notice contending that the appeal should be upheld for the following additional grounds, namely that the appellant does not have a sufficiently arguable case in relation to the matters identified by Warby LJ in the grant of permission and has an alternative remedy. Ms Idelbi submitted that the Judge was not wrong in refusing permission to apply for judicial review. He had addressed the substance of the complaints about the Intelligence Report and concluded that it was accurate and there was no error. She went through the Intelligence Report and submitted that the information about the appellant being an alleged perpetrator and victim of domestic violence according to Nottinghamshire Police was an accurate statement of what the respondent had been told and they were entitled to rely upon information from other police forces: O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 at 301H. The respondent had not been assessing whether or not the allegations of domestic abuse by either party in the relationship were true nor could they given that they had not interviewed the parties. The respondent had taken reasonable steps to confirm the information with Nottinghamshire Police. Further, the ability to bring civil proceedings pursuant to section 167 of the Data Protection Act (“the Act”) was an adequate alternative remedy.

Logically, the first issue is whether there is an adequate alternative remedy available such that permission to apply for judicial review should be refused in cases such as the present. In fairness to the appellant and the Judge, the alternative remedy now relied upon by the respondent is different from the one relied upon at the hearing before the Judge and in the Respondent’s Notice filed in December 2022. Although it appears that counsel did address the Judge orally about section 167 of the Act, the respondent’s written case was that the alternative remedy was a referral to the Information Commissioner under sections 162 to 164 of the Act.

Section 167 of the Act provides for remedies in court. It provides for an application by a data subject who alleges that there has been an infringement of that person’s rights under the data protection legislation to the County Court or High Court. The section confers power on the court to “make an order for the purpose of securing compliance with the data protection legislation” which requires the controller “to take steps specified in the order” or to refrain from taking steps specified in the court order. Such orders are referred to as compliance orders. There is power for the court to order the payment of compensation to a person in appropriate circumstances: see article 82 of the United Kingdom General Data Protection Regulations (“GDPR) and sections 168 and 169 of the Act.

By contrast, a claim for judicial review is a procedure whereby the courts review the actions of public bodies to ensure that they have not acted in a way that is unlawful as a matter of public law. The procedure is a specialised one. It has its origins in the common law but is now regulated by CPR Part 8 as modified by Part 54. The claimant must first obtain permission to bring a claim. To that end, the claimant must file a claim form in a prescribed form together with any evidence relied on. The proposed defendant will provide an acknowledgement of service setting out summary grounds for resisting the claim but is not required to provide evidence at that stage. The court will generally decide whether to grant permission on consideration of the papers but a claimant who is refused permission on the papers may request that that decision be reconsidered at an oral hearing. If permission is granted the respondent will be required to put in detailed grounds and any evidence. There are specialised prerogative remedies available, including a mandatory order, and also the possibility of granting declarations and injunctions and awarding damages. Judicial review is not designed to deal with factual disputes and is principally concerned with deciding questions of law although its procedures can accommodate disputes of fact if necessary.

It is clear that the substance of this appeal involves complaints that the respondent has breached specific provisions of the data protection legislation. The remedies sought include steps designed to ensure compliance with the data protection legislation notably deletion of the Intelligence Report. The subject matter of the dispute and the remedy sought fall within the scope of section 167 of the Act. The appeal does not disclose an arguable claim that the decision not to delete the Intelligence Report involved any public law error.

First, it is well established that permission to apply for judicial review ought generally to be refused where there is an adequate alternative remedy available to a claimant. Where Parliament has created a specific procedure for enforcing particular rights, that statutory procedure, not judicial review, is the appropriate means of enforcing those rights.

Secondly, that principle has been recognised in the context of data protection rights, albeit in the context of rights conferred by the Data Protection Act 1998 although, in my judgment, the same principle applies by analogy to the Act. In R (Hussain) v Secretary of State for Justice [2016] EWCA Civ 1111, [2017] 1 WLR 761, the Court of Appeal was dealing with the powers of the court to make a compliance order where a data controller had failed to comply with a request by a data subject for disclosure of personal data held by that controller about the subject. The Court considered whether it was appropriate for such a claim to be brought by way of judicial review. Sales LJ, with whom the other members of the Court agreed, said that the court had power to grant a mandatory order in a claim for judicial review but:

“32.

However, although the High Court has jurisdiction to make such an order in judicial review proceedings, it is very difficult to think of circumstances in which it would be appropriate for it to exercise that jurisdiction. Only in rare and exceptional cases would it be right to do so. The usual position should obviously be that such a claim for judicial review should be refused on the basis that there is a suitable alternative remedy available, in the shape of the remedy under section 7(9) which Parliament has specifically created in relation to subject access requests under section 7.”

Thirdly, the nature of disputes concerning data protection rights is inherently more suitable for resolution by the statutory procedure rather than a claim for judicial review.

In the circumstances, there is an adequate alternative remedy to the claim for judicial review, namely an application for a compliance order and/or damages. There is no reason in this case justifying a departure from that position. While I would accept that the issue was not accurately framed at an earlier stage of the proceedings, it supplies an additional reason for the refusal of permission.

I next turn to the substantive issue. The context here was that the Intelligence Report was made following a visit by police officers to the appellant’s home after they had been told that the appellant had made a telephone call in which she threatened to set fire to herself. The background to that incident was dissatisfaction with the way in which the police in Nottinghamshire had dealt with allegations arising out of the relationship with her previous partner. The amended Intelligence Report makes it clear that, according to Nottinghamshire Police, the appellant and the partner had both made allegations against the other of domestic abuse. It records that there was no successful prosecution. It records the fact that the appellant had complained and was not satisfied with the outcome. All of that information is, as the Judge said, accurate. He was not deciding whether or not the allegations of domestic abuse were true. The appellant had said to the police officers that she had said that she was going to go to Nottingham and set fire to herself. Contrary to her oral submission that is not a lie. It is true. Nor is it credible, as the appellant submitted, to read the Intelligence Report as implying that she told the officers who came to her home that she was going to set fire to herself. It is clear that the Intelligence Report is recording that the appellant said to the officers that “she had said” (i.e. to someone else) that she was going to set fire to herself. The report records that she presented as anti-police, in other words, that she demonstrated ill-feeling towards the police and gave the factual basis for that description (what she said to the officers and how she said she behaved to police when driving past them). She did put a still image of the officer on social media. As the Judge said, the data were properly retained. The respondent has common law and statutory duties to protect the appellant’s right to life. They need to know that she had stated that she intended to go to Nottingham to set fire to herself. The data explains the context in which that statement was made. It explains how the appellant interacted with the police.

In those circumstances, the Judge did in substance consider the allegation that the Intelligence Report should not be retained because of the criticisms the appellant was making of it. He was entitled to conclude that the criticisms were not made out and to refuse permission for judicial review. He was not wrong in doing so and there is no proper basis for setting aside his decision to refuse permission to appeal.

In any event, this is an appeal against the refusal of permission to apply for judicial review. It is correct that the Judge did not expressly refer to the provisions of the GDPR. However, it is clear that the Intelligence Report satisfies those principles. Viewed in context, the Intelligence Report sets out the fact that the appellant had threatened to set fire to herself, sets out the background to that event and records how she interacted with the police. The collection and retention of that data is fair and is relevant to the way in which the police may be called upon to discharge their common law and statutory duties in future. As the Judge found, it is accurate. It is adequate and up to date, having been amended to reflect further information from Nottinghamshire Police and the appellant. The fact that the Judge did not specifically refer to the provisions of the GDPR is not therefore material. Even if it had been appropriate to bring this claim by way of judicial review (which it is not) permission to apply would be refused.

I would dismiss this appeal. The Judge was not wrong in refusing to grant permission to apply for judicial review and, considering the ground as formulated in the grant of permission, there is not a sufficiently arguable case that, in processing the appellant’s data in the Intelligence Report, the respondent was in breach of its duties as the Intelligence Report was fair, adequate, relevant, accurate and up to date. In addition, and separately, permission to bring a claim for judicial review would be refused because the appellant had an adequate alternative remedy. I have read the judgment of Peter Jackson LJ and I agree with it entirely.

I agree with both judgments.

I agree that the appeal should be dismissed for the reasons given by Lewis LJ.

It is unfortunately necessary to make reference to events that occurred at the hearing before us.

During her submissions, the appellant made sweeping criticisms of all the individuals and bodies that she had encountered, sometimes in colourful language. Among her targets was counsel for the respondent, against whom the appellant told us she has made a complaint of professional misconduct. As the appellant was a litigant in person with evidently strong feelings, we were concerned to ensure that she should be in a position to argue the ground of appeal that was before us and, although she might have been interrupted, she was not.

I record for completeness that the appellant took strong exception to the appearance of O’Hara in the respondent’s skeleton argument and in the bundle of authorities. She asserted that the inclusion of the decision, which concerned the lawfulness of an arrest in the context of suspected terrorism, was a deliberate attempt by the respondent to smear her as a person of Irish descent. I am quite satisfied that there was no such intention and that the case was properly cited for the proposition of law that it contains.

When counsel for the respondent addressed us, the appellant indignantly intervened to challenge various assertions. She was told that she must wait for her turn to reply. When that point came, she ended her submissions with an intemperate personalised attack on counsel that was shocking to witness. In bringing the hearing to its conclusion, we had no alternative but to rebuke the appellant for her deplorable conduct.

Many litigants have strong feelings and we are well aware of the sensitivities that can arise in cases when domestic abuse has been alleged. However, a court of law is a place where disputes can be resolved in an environment that allows all parties to have their say without gratuitous hostility from their opponents. Making all allowances, the appellant’s attack on counsel went far beyond what any court should tolerate.

Moreover, within minutes of the end of the hearing, the appellant wrote to the court to announce that she was expanding her complaint against counsel to include her conduct at the hearing before us.

During the hearing of this appeal we have necessarily reviewed the proceedings that took place before the judge, and we are of course familiar with counsel’s presentation of the appeal. At both hearings the respondent’s case has been presented in a proper and proportionate way. It would be a cause of concern to the court if counsel carrying out her professional duty was to be vicariously harassed by complaints that are in our judgement totally groundless.