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

Retention of a basic arrest record on the Police National Computer is not, without more, an unlawful interference with Article 8. If Article 8 is engaged, retention for a lawful policing purpose may be proportionate. Where existing declarations have established that retention policies for DNA, fingerprints or photographs are unlawful, further declarations may serve no useful purpose. Immediate destruction orders may be premature where a coherent national regime is imminent. Aggravated damages have no place in a claim for Article 8 just satisfaction under section 8(3) of the Human Rights Act 1998.

The claimant was arrested on suspicion of theft. No further action was taken, but information concerning the arrest, together with his DNA profile, fingerprints and photograph, remained in police systems. He sought judicial review, alleging breach of Article 8 and seeking deletion, further declarations, damages and aggravated damages.

The claim was heard after R (on the application of GC) v Commissioner of Police of the Metropolis [2011] 1 WLR 1230 and R (on the applications of RMC & FJ) v Commissioner of Police of the Metropolis [2012] EWHC 1681 (Admin), reported as [2012] 1 WLR 3007. The central issues were whether the PNC arrest record was unlawfully retained and whether further relief should be granted concerning biometric material and photographs.

1. Claim dismissed. No relief was granted, and the court made no order as to costs.
2. The retention of the basic PNC arrest record was lawful. The reference in GC to PNC information concerned specific issues relating to DNA and fingerprints, not the general retention of an arrest record. The arrest record served a lawful policing purpose and, if Article 8 was engaged, the interference was proportionate.
3. The claimant’s complaint did not address his underlying concern about disclosure to prospective employers or officials, since disclosure decisions would take account of local police records, which were not challenged. No fuller account of the arrest or reasons for taking no further action was required on the PNC record.
4. The court declined to repeat the declarations already made in GC and R (on the applications of RMC & FJ) v Commissioner of Police of the Metropolis. Further declarations would serve no useful purpose.
5. Immediate destruction orders were premature. The Protection of Freedoms Act 2012 introduced a statutory regime, with transitional provision under section 25, and a consistent national approach was important. The court would not create inconsistent case-by-case arrangements while commencement and the section 25 order remained pending.
6. No practical ill-effect from retention was shown. Any Article 8 breach was sufficiently addressed by confirmation in the judgment, and aggravated damages were irrelevant to Article 8 just satisfaction under section 8(3) of the Human Rights Act 1998.

This was a first-instance judicial review in the Divisional Court. No appeal from the present decision is stated.