Retention of police custody photographs – not compliant with Article 8

It seems to be a busy month in terms of information law cases involving the police. Earlier this month, Robin Hopkins blogged about the recent Catt case where the Administrative Court held that the retention of data about a protestor did not breach the protestor’s Article 8 right to privacy (see his post here). I then blogged on a recent Tribunal case where the Tribunal found that the Devon & Cornwall Constabulary had not breached its obligations under FOIA when it refused to disclose the location of its automatic number-plate recognition cameras (see my post on the Mathieson case here). Then on 22 June 2012, a further judgment was handed down by the Administrative Court in which the court considered the impact on Article 8 on the retention of photographic information retained by the Met Police: R (RMC & FJ) v Commissioner Of Police Of The Metropolis & Ors [2012] EWHC 1681 (Admin).

The judgment addressed two cases. In the RMC case, R had been arrested on suspicion of causing ABH to a police community support officer who had stopped her riding her bicycle on the footpath. In the FJ case,  F was arrested at the age of 12 on the suspected rape of his second cousin. Both R and F were fingerprinted and photographed by the police and DNA samples were taken. Neither R nor F were prosecuted. The police considered the requests under the ACPO Exceptional Case Procedure in the Retention Guidelines and decided that the fingerprints and photographs should be retained. The Commissioner’s case before the court was that police policy was to apply the Guidance on the Management of Police Information (MoPI), following the MoPI Code of Practice. R and F obtained permission to apply for judicial review in relation to the retention of the custody photographs. F also obtained permission in respect of certain of his data stored on the police national computer (PNC).

The court held that the retention of the custody photographs amounted to an unlawful interference with R’s and F’s Article 8 rights. Importantly, the court held that the individual’s reasonable expectations were not the only considerations when it came to whether there had been an interference with their Article 8 rights. Following S v United Kingdom, the mere retention of photographic data by the police, irrespective of the individual’s reasonable expectations was sufficient to amount to an interference with Article 8 rights (R (Wood) v Commissioner of Police of the Metropolis [2009] EWCA Civ 414 considered). However, the court went on to find that in any event the retention of the photographs relating to R and F interfered with their right to privacy under Article 8 in view of their reasonable expectations that the photographs would not be retained.

The court went on to find that that the Commissioner’s policy on retention of the custody photographs amounted to an unlawful interference with R’s and F’s Article 8 rights. This was because it failed to strike a fair balance between the competing public and private interests and did not in all the circumstances meet the requirements of proportionality imposed under Article 8(2). In reaching this conclusion, the court took into account in particular that the policy did not draw an adequate distinction between the convicted and those who were either not charged or were charged but acquitted and, further, that photographs were retained for a minimum of six years and in practice were likely to be retained for a much longer and indeed potentially indefinite period. In respect of F, the court also noted that the policy failed to take into account that F was a minor at the time of arrest. The court went on to order that the Commissioner should have a further reasonable period within which to revise the policy so as to render it compliant with Article 8.

Notably, the court reached rather different conclusions on the question of whether the information stored on the PNC with respect to F breached his Article 8 rights. In particular, it held that, whilst the retention of the rape allegation on F’s PNC records engaged Article 8 rights, the inference with those rights was plainly proportionate and justified in all the circumstances. This was particularly because a PNC record which did not include the basic history of F’s involvement with the police, including the rape allegation, would be an incomplete and potentially misleading record.

Anya Proops