V, R (On the Application Of) v Commissioner of Police for the City of London

LORD JUSTICE RICHARDS: The claimant was arrested on 17 October 2009 on suspicion of theft of a radio from a hotel room where he had stayed. He was detained at a police station where he was photographed, his fingerprints were taken and a sample for the purpose of deriving a DNA profile was taken. It was subsequently decided that no further action would be taken against him. It is not contended that the arrest or the actions of the police at the police station were unlawful, but the claimant complains about the police's continued retention of information relating to him on the Police National Computer ("the PNC"), retention which is said to be in breach of his rights under Article 8 of the European Convention on Human Rights.

An order is in place to prevent the publication of anything that might lead to the claimant's identification.

The retention of fingerprints and DNA profiles is governed by section 64 of the Police and Criminal Evidence Act 1974 ("PACE") and a set of guidelines issued by the Association of Chief Police Officers ("ACPO"), including in particular an appendix entitled "Exceptional Case Procedure for Removal of DNA, Fingerprints and PNC Records" ("the Exceptional Case Procedure"). In R (on the application of GC) v Commissioner of Police of the Metropolis [2011] 1 WLR 1230, the Supreme Court held that the indefinite retention of the claimants' DNA and fingerprint data was an unjustified interference with their Article 8 rights and granted a declaration that the ACPO guidelines were unlawful. It adopted that course rather than granting relief aimed at the immediate destruction or removal of the data, because draft legislation on the subject was going through Parliament and the court considered it appropriate to allow a reasonable time for the adoption of a lawful alternative to the unlawful policy.

The legislation contemplated at the time of the court's decision was subsequently enacted as the Protection of Freedoms Act 2012 ("the 2012 Act"). That Act introduces detailed provisions into PACE to govern the destruction, retention and use of DNA profiles and fingerprints. Section 25 deals with material taken before commencement. It provides, so far as relevant:

There is a helpful explanation of section 25 in paragraph 139 of the explanatory notes to the 2012 Act:

It is suggested on behalf of the Chief Constable that there will need to be a "sensible approach", as it is put, to the weeding of fingerprints and DNA profiles of people in the same category as the claimant and that the Secretary of State will be entitled to provide for exceptions that may affect the claimant's case: for example, the introduction of a destruction regime with a sliding scale of applicable dates and a measure to reflect the fact that in the future, under the main provisions of the 2012 Act, Chief Officers will be able to apply for an extension to the retention period otherwise applicable.

The provisions of the 2012 Act are not yet in force and there is as yet, therefore, no order regulating the position in respect of material taken or derived before commencement. As I understand it, it is the drafting of the order which is causing the delay. We were told by Mr Basu, for the defendant, that commencement and the relevant order are now expected in the spring of 2013. In the meantime, for understandable reasons, the police have continued to apply the ACPO guidelines notwithstanding the declaration that they are unlawful. I will come back to this when considering the question of relief in the present case.

The retention of photographs is governed by section 64A of PACE and national guidance, including a document entitled "Guidance on the Management of Police Information", produced by the National Policing Improvement Agency on behalf of ACPO. In R (on the applications of RMC & FJ) v Commissioner of Police of the Metropolis [2012] EWHC 1681 (Admin) (reported as R (C) v Commissioner of Police of the Metropolis [2012] 1 WLR 3007) the Divisional Court held that the retention of photographs pursuant to a policy applying the national guidance was in breach of the claimant's Article 8 rights. In line with the approach of the Supreme Court in GC, the Divisional Court limited relief to a declaration that the policy was unlawful, thereby giving time for the policy to be revised. It did do notwithstanding that the 2012 Act had by then been enacted and that it does not apply to photographs.

Before commencing the present proceedings, the claimant made some attempt to get materials or data relating to him removed from the PNC database. In April 2011, his solicitors wrote to the City of London Police to request the removal of his DNA. The response, dated 28 June 2011, referred erroneously to an authority that had been superseded by this time by the judgment of the Supreme Court in GC, but went on to state that the claimant's case was not considered to be exceptional and on that basis his DNA, fingerprints and PNC record would be retained. That decision was taken in application of the exceptional case procedure. One of the contentions advanced on the claimant's behalf today is that there was a failure to consider the matter in accordance with an amendment of the guidelines, or at least a letter of advice, in June 2011. That is something to which I will return after completing the factual narrative.

A letter before claim requesting deletion of the claimant's DNA and fingerprints simply produced a confirmation of the earlier decision. A claim was then filed in September 2011 but was stayed pending judgment in RMC & FJ. Permission to apply for judicial review was eventually granted in August 2012.

Before coming to the rival submissions, I should also say a little more about the circumstances of the arrest itself. The claimant previously worked in the finance sector and is concerned that a future job application or immigration application might be impaired if reference to his arrest were made on a Criminal Records Bureau check or equivalent. He says he should not have been arrested, although he has made no claim for wrongful arrest. He had spent the night in the hotel with a woman who remained there in the morning when he left for work. He was subsequently invoiced for the radio that had been in the room. He said he had not taken the radio and he was told by the woman he had been with that she had not taken it either. He arranged to meet the hotel manager at the hotel, but the manager called the police who also attended the meeting. The claimant says that he was told by the police that he could either agree to pay for the radio or be arrested, and that to avoid the embarrassment of an arrest he agreed to pay, but he was then arrested on suspicion of theft. He was taken to the local police station where he was detained. A warrant was obtained for the search of his flat but nothing was found. He was released on bail. Approximately a month later he was informed that no charges would be brought and that his bail had been discharged. The hotel at some point refunded the money paid by him in respect of the radio. That is the account he gives in his witness statement, and against that background he says that it is unfair and potentially embarrassing for any information about those matters to remain on his record and liable to be disclosed.

On the claimant's behalf, Mr Tear opened his submissions with a point that caused me some surprise because it did not appear to feature in his grounds of claim or skeleton argument. In a letter dated 16 June 2011 to chief constables, ACPO referred to counsel's advice on the ramifications of the decision in GC. That letter contained the following paragraph:

Mr Tear also referred to a policy adopted by the Metropolitan Police in June 2011, but that was not the defendant's policy and is not, as it seems to me, directly relevant.

The submission made by reference to ACPO's letter of 16 June 2011 is that the circumstances of the claimant's arrest amounted to a "process ... inappropriately conducted" and that the claimant's record could therefore be deleted in accordance with the advice given. Yet, it is said, there was a failure by the defendant to consider the matter on that basis.

For my part, I am satisfied that the defendant was never asked to consider or to reconsider the matter on that basis, and that a failure to do so was not raised as a ground of claim. At best, there were oblique references to it in the statement of facts and grounds and other material, but no actual ground of claim was advanced by reference to it and no relief was sought in relation to it. Further, the defendant would not have appreciated that the point was being taken against him. The defendant's letter of 28 June 2011 had said in terms "there is no suggestion of any breach of process". No letter taking issue with that was ever sent on the claimant's behalf. Had the defendant appreciated that the point was being taken, one question might well have been whether to seek evidence from the police officers as to the circumstances of the claimant's arrest. As things stood, on the grounds of claim as actually formulated, there was simply no reason to consider whether it was necessary to challenge the claimant's detailed account since nothing turned on its detailed accuracy as opposed to the broad point being made of an arrest and no further action then being taken. In those circumstances, I take the view that the allegation of a failure to consider the matter on the basis of the 16 June 2011 letter is simply not a point open to the claimant.

Moving on, Mr Tear contends that refusal to remove information about the claimant from the PNC database and the retention of his DNA, fingerprints and photographs are unlawful. The minimum relief sought is a declaration that the conduct of the defendant is in breach of Article 8 and that the policy followed is unlawful, but it is submitted that the court should go further than that and order the immediate destruction or removal of all information relating to the claimant.

Alternatively, it is submitted as a fallback that the defendant should be required to keep an accurate detailed record such as not to cause confusion about the events being recorded. The point concerning this fallback position is that the claimant is concerned that the PNC record in its present form does not record the circumstances of the offence or why no further action was taken, and it is also suggested that the inclusion of a reference number against "Court/Caution Reference" might be taken to indicate that the claimant had been charged or cautioned.

In addition to the matters of relief to which I have already referred, the claimant seeks what is described as a token award of damages for breach of Article 8, together with a claim for aggravated damages for the period since 18 October 2012.

The defendant's position in relation to the claim is, in summary, as follows. First, Mr Basu submits that there exists an alternative remedy in the form of an application to the Information Commissioner under the provisions of the Data Protection Act 1988 in respect of personal data held by the defendant about the claimant. The Commissioner has power under section 40(1) to serve an enforcement notice on the defendant requiring the deletion of data wrongly obtained or wrongly held. Chief Constable of Humberside Police v Information Commissioner [2010] 1 WLR 1136 is cited as an example of the process, applicable in that case to records of old minor convictions. It is submitted that the claimant ought to have exhausted his remedies under the Data Protection Act before coming to this court and that in the circumstances the court should withhold any discretionary relief.

There may indeed be cases where the Information Commissioner route is the appropriate one rather than bringing a claim for judicial review, but in a case where permission to apply for judicial review has already been granted and we are at the stage of the substantive hearing, I am not attracted by the argument that if relief is otherwise appropriate, it should nevertheless be withheld because of a failure to exhaust remedies under the Data Protection Act. In effect, what Mr Basu is contending is that the claimant should go off to the Information Commissioner, where eventually one would get to the same point as we are at in this court, namely that the claimant seeks deletion of the data and the defendant resists that course. All of that would add nothing except cost and delay to the position in which we find ourselves today.

What Mr Basu says about the relief sought in the present proceedings is, in summary, as follows. In relation to fingerprints and DNA profiles, it is submitted that the case is governed by the decision of the Supreme Court in GC and that the most this court should do is grant a declaration as to the unlawfulness of the policy for the reasons given in that case. It is said to be desirable for there to be a consistent national policy, which will be achieved by the order to be made under section 25 of the 2012 Act. In support of that submission, reference is made to the observations of Lady Hale at paragraph 73 of GC.

In relation to photographs, it is said that there was no actual request prior to the claim for the claimant's photographs to be deleted and no decision was taken on the point, but in any event it is submitted that the case is governed by the decision of the Divisional Court in RMC & FJ and that this court should go no further than the court went in that case, where a declaration was granted as to the unlawfulness of the policy and a reasonable further period was allowed within which to revise the policy. I have referred already to the expected timetable in relation to commencement of the 2012 Act governing fingerprints and DNA. The information provided to us by Mr Basu in relation to photographs is that ACPO is in the process of devising a fresh policy. It is submitted, again, to be desirable for there to be a consistent national approach.

As regards the arrest record on the PNC database, it is submitted on the defendant's behalf that the retention of the record is not in breach Article 8 and that it would be entirely inappropriate for the court to order deletion.

Finally, the defendant resists the claim for damages.

It seems to me that the focus of attention in all of this should be the PNC arrest record, since the claimant's real concern, so far as it appears from the evidence, relates to potential disclosure to prospective employers or officials of the fact of his arrest, rather than the potential use of his fingerprints, DNA or photographs for policing purposes. As to that, the contention that the retention of the record of arrest on the PNC is unlawful is, in my view, untenable. Mr Tear's entire case on this appeared to rest on what was said in paragraph 51 of GC where Lord Dyson, having explained why the court was not going to consider the issue of photographs, continued:

As appears from the paragraphs of the judgment of the Divisional Court referred to in that passage, the issues relating to information held on the PNC were specific issues, not a general question about the lawfulness of the retention of basic information such as a record of arrest. Mr Basu has also explained to us that the PNC contains barcode references to a person's DNA record and fingerprints, a point which is supported by paragraph 2.7 of the Retention Guidelines for Nominal Records on the Police National Computer, a further set of ACPO guidelines. As regards that, there could of course be no separate issue in relation to the PNC barcode information from that arising in relation to the substantive DNA and fingerprint material cross-referred by that information.

In any event, it seems to me that the Supreme Court cannot have meant, in the passage I have quoted, that the conclusions it reached about DNA and fingerprints were equally applicable to an entirely different feature of the PNC, namely the arrest record. The court's reasoning simply did not cover the point; and the legislation that was contemplated and was an integral part of the court's reasoning did not cover it, being applicable only to DNA and fingerprints. Mr Tear's reliance on paragraph 51 of GC is, in my view, wholly misplaced.

By contrast, of direct relevance is the rejection in RMC & FJ at paragraphs 59 to 61 of a similar argument to that advanced by Mr Tear in relation to PNC records. The relevant complaint in that case related to the inclusion in the claimant's PNC record of a reference to his arrest on suspicion of rape in circumstances where a decision has subsequently been made to take no further action in the matter. It suffices to read paragraph 61 of my judgment in that case:

The claimant's case on this issue also seems to miss the point since it is directed at what is on the PNC, not what is contained in local police records: Mr Tear made clear that there is no challenge to what is contained in the local records. Yet we are told by Mr Basu that when a CRB check or equivalent is made, the police would consider the local records in determining what disclosure should be made. So the concern at the root of the claim as to disclosure of the fact of arrest is simply not met by the actual challenge that is brought in these proceedings.

I should indicate that the fallback position contended for by Mr Tear is, in my view, equally untenable. I do not accept that there is or could be any requirement for the record to include fuller information as to the circumstances of the arrest or of the reasons why no further action was taken. All of those matters would in fact be contained, no doubt, in the local records. Nor do I accept that anyone reading the PNC record would be misled into thinking that the claimant had been charged or cautioned rather than having no further action taken against him.

As to fingerprints, DNA and photographs, and even leaving aside the absence of any request for deletion of photographs, I see no reason why this court should exercise its discretion to repeat the declarations that have already been made in GC and RMC & FJ to the effect that the existing policies are unlawful. No useful purpose would be served by repeating those declarations. The fact that no useful purpose would be served by further proceedings was the basis on which in RMC & FJ permission to apply for judicial review was refused in respect of matters already covered by GC. I would carry that reasoning through to the relief stage. This conclusion also accords with that expressed in R (on the application of Hicks & Ors) v Commissioner of Police of the Metropolis [2012] EWHC 1947 (Admin) at paragraph 226, where the court took the view that it was neither just nor appropriate to grant any specific relief in relation to the retention of DNA, fingerprints or photographs of the relevant claimant because the position was dealt with sufficiently by the declarations granted by the Supreme Court in GC and the Divisional Court in RMC & FJ.

There is a question whether the reasonable period allowed in the previous cases for putting in place a new and lawful regime can be said by now to have expired so that the court ought to be considering more specific relief directed at securing the destruction of the claimant's material and data in issue. That time, as it seems to me, is fast approaching, but I am not satisfied that it has yet arrived. Moreover, this claim was brought at a time when no such point could possibly be advanced and it would, in my view, be profoundly unsatisfactory if the claimant were to derive an adventitious benefit from the fact that the proceedings were stayed pending the decision in RMC & FJ.

I reach that conclusion despite the fact that it is tolerably clear that when the 2012 Act is brought into force and an Order is made under section 25, it will be necessary for the claimant's DNA and fingerprints to be destroyed "on the coming into force of the Order," subject to any timetabling provisions introduced by virtue of section 25(4) to cater for the fact that a very large number of individual cases will have to be considered at that point.

I also bear in mind Mr Tear's submission that the defendant has known since the passing of the 2012 Act what the position was going to be and could have started deleting material in anticipation of the relevant provisions coming into force. That may be so, but there is substance in the counterargument that it is important for police forces to take a consistent approach nationally and that this requires the detail of the regime under section 25, so far as pre-commencement cases are concerned, to be known before steps are taken to implement it. The importance of a consistent national approach was underlined by Lady Hale in the passage I have already mentioned at paragraph 73 of GC. The importance of the point is not undermined by evidence to which Mr Tear drew our attention of the adoption of different approaches by different police forces in the past.

The importance of consistency of approach also leads me to think that it would be wrong for this court to intervene now by way of destruction orders on a case-by-case basis in circumstances where, as we are told, the new regime under the 2012 Act can be expected to come into force next spring. I would equally expect that a new ACPO policy in relation to photographs will be brought into effect within a similar timetable.

As to the claim for damages, there is nothing to show that the claimant has suffered or is likely to suffer any practical ill-effect from the retention of his fingerprints, DNA and photographs. To the extent that there has been a breach of his Article 8 rights, just satisfaction is afforded by the confirmation of such breach which is given by this judgment, but it should have been clear already in any event from existing judgments. The claim for aggravated damages could only have any relevance if this were a claim for wrongful arrest or false imprisonment; it has no place in the context of just satisfaction under section 8(3) of the Human Rights Act 1988.

The conclusion I reach for those reasons is that this is not a case in which it would be appropriate for the court to grant any relief. I would therefore dismiss the claim.

MR JUSTICE OUSELEY: I agree. I would just add in respect of the suggestion that a form of relief could be granted requiring a further decision to be made by the defendant within three months, this, whilst superficially attractive, risks again being arbitrary in its timing in relation to the commencement of section 25. It also risks the creation of unnecessary inconsistencies in policy as between constabularies and types of cases, driven by the priorities which litigation creates. I agree with my Lord that this claim should be dismissed.

LORD JUSTICE RICHARDS: Postscript: After we had given our ex tempore judgments in this case, our attention was drawn by counsel to the judgment of the European Court of Human Rights in the case of MM v United Kingdom (application no. 24029/07), handed down on 13 November 2012, the day before the hearing of the present claim. For understandable reasons the judgment in MM was not identified in time for the hearing. Subsequently, however, Mr Basu and Mr Tear both addressed brief written submissions on it. We did not think it appropriate or necessary to invite more detailed submissions or to re-open our decision. We were satisfied that the judgment in MM did not affect our conclusion that the present claim should be dismissed.

MR BASU: My Lord, there is, of course, an application for costs on behalf of the Commissioner of Police for the City of London. If your Lordships are minded to give a summary assessment.

LORD JUSTICE RICHARDS: Let us deal with the principle first, shall we?

MR BASU: My Lord, yes. We succeeded. The law is clear to the claimant and to his advisers from a number of authorities, and therefore, relief having been refused, the claim having been dismissed, costs should follow the event, in my submission. It is as simple as that.

LORD JUSTICE RICHARDS: But it is a very odd situation, and this claim was brought at a time when GC had been decided but RMC & FJ had not been decided. Had it been dealt with before, or at the same time as, RMC & FJ, it would have succeeded in relation to photographs because the unlawfulness of the policy being applied -- or it might have succeeded, subject to your point that there was no request in relation to photographs.

MR BASU: Well, even despite that point of course beyond 22 June when RMC was handed down, this claim became, in my submission, untenable and therefore at least from that point costs should follow and flow from the event. But most of the costs have been incurred of course since that date, most of the costs being the costs of the hearing. My fallback position would be that costs following 22 June should be the defendant's, and if that theses is right and my friend follows it or adopts it, then at worst the fallback position is the costs before 22 June should fall the other way.

LORD JUSTICE RICHARDS: If one were with you on the principle, so far as assessment is concerned we have not, I think, seen a schedule of costs.

MR BASU: I think it was served between the parties. I am told it was sent to the court on Tuesday morning, possibly by email.

LORD JUSTICE RICHARDS: I have seen Mr Tear's schedule of costs.

MR BASU: I am told it was sent at 9.26 on 13 November.

LORD JUSTICE RICHARDS: Do you have a copy? Or do you have two copies, better still.

MR BASU: My Lord, yes.

LORD JUSTICE RICHARDS: So a grand total of just over £6,300. Is that right?

MR BASU: My Lord, that is correct, yes.

LORD JUSTICE RICHARDS: I see. And you are asking for summary assessment.

MR BASU: My Lord, yes.

LORD JUSTICE RICHARDS: Mr Tear, what do you say about all of this?

MR TEAR: My Lord, I would suggest that the correct order would be no order as to costs.

LORD JUSTICE RICHARDS: Because?

MR TEAR: The claimant did comply with pre-action protocol. I believe this court has not said that the response to that pre-action protocol was acceptable, because it did refer to the wrong case law, or failed to deal with the actual pre-action protocol at all.

LORD JUSTICE RICHARDS: Actually, the erroneous reference to the pre-GC authority was not in response to the pre-action protocol letter, that was earlier.

MR TEAR: My Lord, in response to that erroneous reference, the claimant sets out the law as it then was quite clearly. The defendant made no further decision other than to maintain their erroneous decision. So the initial decision was quite clearly, the initial decision to pursue an application for judicial review it is submitted was reasonable in the circumstances.

In relation to what this case really turns on is when this new policy will be in place. We were only informed, I think, at 17.03 last night that the new ACPO policy was expected -- I believe it was said in the summer which was initially what was said – but now in the spring. So the claimant could be forgiven for continuing the litigation considering that that information was not made available until just prior to the hearing. And obviously on the information that was originally said that it was going to be in the summer, that would not comply with my Lord's judgment in RMC in relation to photographs.

So in relation to the principle, my Lord, the claimant seeks no order as to costs as being reasonable and fair between the parties considering the nature of the case and how long it has been ongoing. There has not ever been a concession. The concessions in this matter were late in the day and sought to defend the matter in relation to Article 8 as well. There was no detailed defence in this matter. It would be reasonable to pursue the matter until that arrived.

LORD JUSTICE RICHARDS: The detailed grounds of defence were not submitted, were they, until the skeleton argument, which was asked to stand as such.

MR TEAR: That is my understanding.

LORD JUSTICE RICHARDS: We will hear again from Mr Basu on that. Anything else?

MR TEAR: My Lord, not on the principle of whether costs should be awarded.

LORD JUSTICE RICHARDS: Mr Basu, is that right, there were not any detailed grounds?

MR BASU: Without making excuses, I think that pre-dated my involvement. It is no criticism of anybody. I think the intention had been to simply state that the summary grounds were sought to be effectively resubmitted as detailed grounds.

LORD JUSTICE RICHARDS: Yes. There was an email of 6 November from a chief assistant solicitor of your client to the Administrative Court Office:

MR BASU: My Lord, yes. There already had been of course by this stage following the RMC judgment an amended summary grounds, so the two documents together were very detailed.

LORD JUSTICE RICHARDS: Were the summary grounds amended then? Is that right?

MR BASU: My Lord, page 2 of the bundle.

LORD JUSTICE RICHARDS: Dated July. Yes.

MR BASU: I think the court will accept that those are fairly detailed summary grounds and there would not have been a need to submit any different detailed grounds. No discourtesy was intended by the failure to submit separate detailed grounds.

LORD JUSTICE RICHARDS: Thank you.

We are going to make no order as to costs. In making that order, we take into account the fact that until the RMC & FJ judgment in July the position concerning photographs at least was not clear, and indeed the claimant could be said, subject to the point about the absence of a request in respect of photographs, to have had a good case on the subject. We also bear in mind that no detailed grounds were submitted on behalf of the defendant, albeit the summary grounds were amended in July. Finally, we take account of the fact that this is, after all, a case where an unlawful policy has been applied, albeit in the exercise of a discretion, for the reasons given, we have decided that no relief should be granted. So no order.

MR TEAR: I am grateful, my Lord.