G, R (On the Application Of) v Chief Constable of Surrey Police & Ors

A police record of a juvenile reprimand may be retained where the reprimand was lawfully issued and the applicable retention policy does not justify deletion. However, an enhanced-disclosure regime requiring automatic disclosure of retained criminal-record data must contain safeguards enabling relevance and proportionality to be assessed before disclosure to a third party. Without such safeguards, the interference with Article 8 rights is not in accordance with the law, even where Parliament has approved the disclosure scheme and the offence falls within a prescribed category.

The claimant received two reprimands at the age of 13 for sexual activity with younger children. He later challenged the Chief Constable’s refusal to delete the records and, alternatively, the statutory enhanced-disclosure regime administered under the Police Act 1997 and the Rehabilitation of Offenders Act 1974. He argued that the reprimands should not have been issued and that indefinite mandatory disclosure unjustifiably interfered with his private life.

The court had to decide whether the reprimands were unlawfully issued or should be erased, and whether the disclosure scheme contained adequate safeguards under Article 8 of the Convention.

1. Challenge to the reprimands. The claim against the Chief Constable failed. The statutory conditions for issuing the reprimands had been met. The CPS guidance had to be read as a whole; the absence of force, apparent agreement and sexual experimentation were relevant but not conclusive. The prosecutor was entitled to take account of the complainants’ age, the need for their protection and the repeated nature of the conduct. The decision was neither irrational nor unlawful (paras [27]-[32]).
2. Deletion of data. If a reprimand had been unlawfully issued, that would constitute an exceptional circumstance capable of justifying deletion. Since the reprimands were lawfully issued, the Chief Constable did not err in applying the retention policy (paras [25], [32]).
3. Article 8 and safeguards. The court followed the reasoning of Lord Reed in R (T) v Chief Constable of Manchester and the Divisional Court in R (on the application of P and A) v Secretary of State for Justice. Whether an interference is “in accordance with the law” is distinct from whether it is proportionate, although the issues are linked. The statutory scheme must contain safeguards enabling the proportionality of disclosure to be adequately examined and preventing arbitrary interference (paras [43], [46]-[48]; Appendix paras [108]-[115]).
4. The filtering of single minor convictions did not provide a sufficiently sensitive means of assessing whether disclosure was relevant, necessary and proportionate in every case. A procedure could require the data controller to consider the offence, disposal, time elapsed, rehabilitation, age and relevance to the proposed employment before disclosure. Administrative complexity and the fact that Parliament had approved the scheme could not cure the absence of those safeguards (paras [35], [43]-[50]).
5. The absence of a mechanism for the claimant to make representations to a public authority before disclosure meant that the regime was not in accordance with the law. The court did not decide whether disclosure would in fact have been disproportionate under a sufficiently flexible scheme. Declaratory relief was granted against the Secretaries of State (paras [50]-[51]).

First-instance judicial review. The judgment does not state any prior appeal or lower-court decision in this litigation.