TD, R (On the Application Of) v The Commissioner of Police of the Metropolis & Anor

Police retention of records concerning an allegation may be justified where the information has objective utility, including potential value in understanding later events or allegations. Retention for about ten years was not shown to be unlawful and deletion was not ordered.

A policy providing for retention for 100 years without systematic review appeared over-rigid and not demonstrably proportionate. The absence of review raised wider constitutional concerns about the balance between State and citizen. The court nevertheless declined to grant a declaration because the issue had not been fully argued and relevant material had not been examined.

The claimant was arrested after a hotel guest alleged sexual assault. His DNA and fingerprints were later destroyed under transitional provisions of the Protection of Freedoms Act 2012, leaving crime reports on the CRIS system and a Police National Computer record.

The Divisional Court dismissed the judicial review claim, holding that retention was justified at least for the time being but identifying the absence of a review provision as a flaw: [2013] EWHC Admin 2231. On appeal, the claimant challenged continued retention and sought deletion or a declaration that 100-year retention without review was unlawful. The central issues were the utility and proportionality of retaining the records under Article 8, and whether declaratory relief concerning periodic review should be granted.

Appeal dismissed. Laws LJ gave the lead judgment. Jackson LJ and Black LJ agreed.

1. The biometric data had been deleted. The appeal therefore concerned only the CRIS reports and the Police National Computer record. The claimant’s challenges to the evidence of deletion and to the legality of his 2004 arrest fell outside the proper scope of the proceedings.
2. There were sound reasons for retaining the records. They could provide significant information about later events or allegations. The reasoning in C v the Commissioner of Metropolitan Police [2012] EWHC Administrative 1681 supported the conclusion that information of this kind had objective utility. The decision in Catt [2013] EWCA Civil 192 did not undermine that conclusion because the nature and apparent utility of the retained material differed. Retention for approximately ten years was not shown to be unlawful, and the court was not in a position to order destruction.
3. The absence of any policy for systematic review of information apparently retained for 100 years was much more troubling. State retention of personal information, including by the police, could alter the balance of power between State and citizen and therefore required justification. The existing policy appeared over-rigid and not demonstrably proportionate. The concerns extended beyond the individual impact of retention under Article 8.
4. The court could not prescribe the nature or frequency of review. The appropriate approach might differ between categories of case, and very long retention might possibly be justified without review in some circumstances. Although regular reviews were likely to be the proper direction of future policy, the claimant had not come to argue the declaratory issue fully, the opposing submissions were incomplete, and relevant material had not been examined. It would therefore not be right to grant a declaration that 100-year retention without review was unlawful.

1. Court of Appeal (Civil Division) dismissed the appeal and declined to grant a declaration concerning periodic review.
2. High Court, Queen’s Bench Division (Divisional Court) dismissed the application for judicial review: [2013] EWHC Admin 2231.