One hundred years of solicitude

In 2004, a man known as TD was arrested for an alleged sexual assault. He was interviewed twice. No further action was taken. The biometric data was in due course destroyed, as will be the case with others in such positions, thanks to provisions of the Protection of Freedoms Act 2012. But 40 pages of information about his arrest and the allegation are to be retained by the Metropolitan Police in the form of crime reports and a record shall be retained on the Police National Computer until 2104, when the claimant would be 128 years old. The Metropolitan Police’s policy (of August 2012) concerned Serious Specified Offences provides for retention of such information – without review – for a century. It contends that such long-term policing solicitude as regards these types of allegations is supported by research conducted by University College London in 2009.

TD sought judicial review of this retention to decision (i.e. the refusal to delete this information). Last week, in R (TD) v Commissioner of Police for the Metropolis and Secretary of State for the Home Department [2013] EWHC 2231 (Admin), Moses LJ and Burnett J dismissed his application.

The Court surveyed the relevant line of domestic and Strasbourg authorities which have abounded in recent years: R(L), R (C) and (J), S v UK, Catt, MM v UK (the majority of which are covered in Panopticon’s archive).

The Police said its policy will need to be reviewed, but that it was too early to say that the records about TD are of no use.

Moses LJ said this (paragraph 14):

“It is necessary to be cautious as to how far the considerations of the use to which the records may be put take the Commissioner.  Every record of an allegation of crime may be of use for the indefinite future, as the research to which the Commissioner refers demonstrates.  This was the very argument on which the United Kingdom Government relied in Strasbourg in S, relying on the “inestimable value” of the data [91].  But S shows that the fact that material is of potential use, and, certainly, of greater use than in Catt, is not dispositive.  Weighed against that there remains the discomfort or worse that any citizen must feel when the state retains personal information about him, particularly when it relates to an allegation, however unfounded, of a sexual nature.  In S, it was recognised that the mere storage and retention of the data amounted to an interference within the meaning of Article 8 (para 67).”

He concluded, however (and Burnett J agreed) that (paragraph 16):

“In my view, now that only nine years have elapsed and in the knowledge that access to the information is restricted to those who seek to investigate a crime it seems to me, like Richards LJ in J, that the Commissioner has demonstrated that the use to which the records of the allegation may be put justifies their retention, at least for the time being.”

The important qualifier was that the Police’s policy should provide for a review of the retention decision, but again, it was considered too early to order any such review in this case.

This will not be the last in this line of cases. The jurisprudential debate about balancing policing utility with the privacy rights of suspects – particularly concerning the question ‘how long is too long?’  – continues.

Robin Hopkins (@hopkinsrobin)