TD, R (on the application of) v The Commissioner of Police for the Metropolis & Anor

The retention of police records concerning an unsubstantiated sexual allegation engages article 8, but is not necessarily disproportionate. The court must balance the interference with the individual’s private life against the legitimate use of the information for policing purposes. Potential usefulness is not, by itself, decisive. Relevant considerations include the nature of the allegation, the time elapsed, the restricted access to the records and their possible value in investigating future offences. A retention policy must also provide for periodic review, particularly where the information has not been used. The absence of any review mechanism is a significant flaw, although it did not justify quashing the refusal to delete the records in this case.

The claimant sought judicial review of the Metropolitan Police Commissioner’s refusal to delete records relating to his arrest following an allegation of sexual assault. No charge or further action followed. His biometric data had been destroyed, but crime reports were retained on the Crime Report Information System and a record remained on the Police National Computer.

The policy provided for lengthy retention of records concerning serious specified offences without review. The central issue was whether continued retention unlawfully interfered with the claimant’s rights under article 8 and, if so, whether the interference was proportionate.

1. Article 8. Retention of the records concerning the allegation amounted to an interference with the claimant’s private life. The relevant issue was proportionality, requiring a balance between the extent of the interference and the legitimate use to which the police could put the information.
2. Proportionality. The possible future usefulness of an allegation record was not conclusive. Nevertheless, only nine years had elapsed; the allegation was sexual in nature; the records might assist if a similar allegation arose; and access was restricted to authorised police users. Those factors justified retention at least for the time being. The position differed from the searchable database considered in R (Catt) v ACPO and Commissioner of Police of the Metropolis, [2013] EWCA Civ 192, where the information suggested extremism and its policing value had not been demonstrated.
3. Review. Retention must be subject to review in the light of the passage of time and any absence of use. The absence of a review mechanism in the Commissioner’s policy was a significant flaw. The statutory guidance contained a review process, and the Commissioner’s policy should do likewise.
4. Disposition. Since the policy would require reconsideration in light of developing domestic and Strasbourg jurisprudence, and the records had been retained for only about nine years, no declaration concerning review was necessary. The claim to quash the refusal to delete the records was refused. Burnett J agreed, noting that evidence of previous unfounded allegations may sometimes be essential to a fair trial.