XX, R on the application of) v Secretary of State for the Home Department & Ors

Police schemes for retaining and disclosing offender information may satisfy the requirement that interference with Article 8 rights be in accordance with the law where they form part of a comprehensive, published framework. Relevant safeguards include the Data Protection Act, the Human Rights Act, public guidance and available procedures to access or challenge retained data.

The legality and proportionality of such arrangements must be assessed in their practical and individual context. Retention may be justified by public protection, crime prevention and the need to manage risk. Guidance requiring consideration of representations before disclosure is lawful even if it permits representations to be omitted in exceptional cases where seeking them would increase risk.

The claimant, a convicted sex offender subject to MAPPA, challenged arrangements governing the police retention and possible disclosure of information about him. The challenge concerned the Child Sex Offender Disclosure Scheme, the Management of Police Information guidance and MAPPA guidance.

He argued that the schemes interfered with his Article 8 rights arbitrarily, lacked a sufficient legal basis and were disproportionate. He also argued that amendments made after R(X) v Secretary of State for the Home Department [2012] EWHC 2954 (Admin) failed properly to require representations before disclosure. The central questions were whether the schemes were in accordance with the law, whether any interference was justified, and whether the amended guidance lawfully reflected the earlier declaration.

1. The claims were dismissed. The statutory and non-statutory schemes governing retention and possible disclosure of police information were in accordance with the law, and any interference with the claimant’s Article 8 rights was justified.
2. The collection, organisation and possible disclosure of relevant police data engaged Article 8. It was unnecessary to decide whether publicly recorded, unspent convictions independently engaged Article 8 because other retained information plainly did so.
3. The schemes contained adequate safeguards against arbitrariness. Police purposes were identified, data processing was controlled by the Data Protection Act, and the MAPPA guidance, MoPI guidance and CSOD scheme were published standards which expressly referred to data protection and human rights obligations. The common law could provide a sufficiently certain source of power; the European Court of Human Rights decision in MM v United Kingdom (24029/07) was confined to its particular facts.
4. Retention and possible disclosure pursued legitimate aims, including public safety, crime prevention and protection of the rights of others. On the evidence, retaining information about the claimant assisted risk management and protection from unjustified attack. The individual disclosure decisions showed that disclosure was considered carefully and was not automatic.
5. The claimant could obtain details of data held about him and challenge unlawful retention. His generalised challenge to the length of retention was premature because, while he remained subject to notification requirements and MAPPA, the complaint was substantially academic.
6. The CSOD amendments properly reflected the earlier declaration requiring consideration of representations before disclosure. The amended MAPPA guidance was also lawful. Seeking representations was the norm, but it was permissible to omit them where doing so was necessary for safety, including where seeking them might reinforce grievance thinking and increase risk. Such a decision would require justification.