Krol v Commissioner of Police of the Metropolis

The retention and disclosure of a police caution engage article 8, but are lawful where they pursue the protection of potential employers and others, are rationally connected to that objective, go no further than necessary and strike a fair balance. The amended statutory filtering scheme does not remove a police commissioner’s power to delete or expunge a caution in an appropriate case. A proposed future review is not unlawful merely because its detailed criteria have not yet been specified. The proportionality assessment may take account of the reliability of the underlying admissions, the seriousness and circumstances of the offence, the vulnerability of the victim, the claimant’s subsequent history and the passage of time.

The claimant sought judicial review of the Commissioner’s refusal to delete or expunge a caution administered in 2007 for assault occasioning actual bodily harm against her young daughter. The caution was disclosed during a criminal-record check, after which the claimant unsuccessfully sought its removal.

A later application relied on article 8 and on MM v United Kingdom. The Commissioner concluded that the caution should remain and proposed a review in 2018. Permission to apply for judicial review was granted on the question whether continued retention and disclosure without earlier review was disproportionate. The central issues were the legality of the filtering guidance, the adequacy of the proposed review and the proportionality of continued retention and disclosure.

1. The claim was dismissed. The administration and retention of a caution constituted an interference with article 8, requiring justification under article 8.2.
2. The amended statutory regime, rather than the Disclosure and Barring Service filtering guidance, was the legal basis for indefinite retention of a caution for a specified offence. The guidance reflected the amendments to the Police Act 1997 and did not prevent the Commissioner from deleting or expunging a caution where that was appropriate. The claimant therefore failed to establish that the guidance was unlawful or incompatible with article 8.
3. The proposed review in 2018 was not unlawful merely because its criteria had not been fully specified. On the assumed basis that postponing review until then was proportionate, there was no proper basis for concluding that the review would be arbitrary or subjective. It could take account of the circumstances prevailing at the time, relevant guidance and legal developments.
4. The court applied the four-stage proportionality inquiry identified in the Supreme Court’s judgment in T v The Chief Constable of Greater Manchester and the Secretary of State for the Home Department: importance of the objective, rational connection, necessity and fair balance.
5. Disclosure was rationally connected with the objective of giving potential employers relevant information. The court considered the claimant’s admissions, the seriousness of repeated assaults on a vulnerable child, the claimant’s age, the false name given in interview, subsequent matters and the relatively modest lapse of time. Those factors justified the balance being struck in favour of the community’s interests. Continued retention and disclosure were proportionate and did not breach article 8.

The defendant was awarded the costs of the hearing, subject to summary assessment after the claimant had an opportunity to comment.

First-instance judicial review proceedings. Permission to apply for judicial review had been granted by a single judge.