T, R (on the application of) v The Commissioner of Police for the Metropolis

Police information notices concerning alleged harassment are not statutory notices, convictions or findings that an allegation is true. Their issue should follow sufficient discrimination and, ordinarily, genuine efforts to obtain the suspect’s account, although a prior interview is not an absolute legal requirement. Retention of the notice and associated police records may engage Article 8 and the Data Protection Act 1998. It may nevertheless be justified by legitimate policing purposes, provided retention is necessary, proportionate, governed by a clear and transparent policy, and subject to strict confidentiality. A notice cannot itself prove the underlying course of conduct. The court will generally allow the police a margin of judgment on operational retention decisions.

These conjoined judicial review claims challenged Metropolitan Police practice concerning Prevention of Harassment Letters and Police Information Notices. T received a notice based on disputed allegations arising from a neighbours’ dispute without being interviewed. R received a notice after police contact and arrest following allegations concerning unwanted communications with a former partner.

The claimants challenged the issue, service and retention of the notices and related information as contrary to data protection principles, Article 8 of the European Convention on Human Rights and common law procedural fairness. The central questions were whether the notices were issued unlawfully, whether their retention required individual review, and whether the police could retain the underlying allegations.

1. Issue and service. The notices were not statutory concepts and the practice guidance was not legally binding. The material guidance nevertheless indicated that allegations should be investigated, unfounded allegations should not ordinarily result in a notice, and genuine efforts should generally be made to interview the suspect. A prior interview was not an absolute rule. In T’s case, the unresolved cross-allegations supplied a sufficient basis for the notice despite the inadequate investigation. In R’s case, the police could not reasonably reject the complaints as unfounded, even though there was insufficient evidence for a prosecution.
2. Character and effect. A notice records that an allegation has been made and gives information about possible future conduct. It is not a finding of guilt, a conviction, caution or criminal record. It cannot itself prove a course of conduct, although it may prove that information or a warning was given in later proceedings.
3. Data protection. The notices constituted personal data and, in these cases, sensitive personal data. The statutory conditions for processing required careful consideration. Retention for seven years was not automatically lawful: necessity had to be assessed by reference to the purpose of retention, preferably through a clear, accessible and transparent policy. The crime-prevention exception in section 29 did not create a blanket disapplication of fairness.
4. Article 8. Mere retention of information may interfere with private life. The interference could be justified where retention served legitimate policing purposes and was necessary and proportionate. Relevant considerations included the seriousness and credibility of the allegation, the risk of repetition or a future course of conduct, and the proposed retention period. Disclosure to third parties should be subject to strict confidentiality.
5. The claimants had not established illegality in issuing, serving or retaining the notices. The court therefore refused the relief sought.

First-instance judicial review proceedings. The judgment records that permission had been granted by Collins J and that the claims were conjoined for hearing.