CL, R (on the application of) v The Secretary of State for the Home Department

The police may record and retain information about suspected criminal conduct by a child where the information serves legitimate policing purposes, including identifying patterns of behaviour and protecting potential victims. A low threshold for recording reported crime is not unlawful where supported by safeguards governing collection, retention, review and disclosure. The duty to safeguard and promote children’s welfare affects how police functions are performed; it does not redefine or remove those functions. Article 6 is not engaged merely because a crime report names a child as a suspect: there must be a criminal charge or proceedings. Under article 8, the child’s best interests are a primary consideration in proportionality, but they are not determinative. Retention may remain proportionate despite evidential uncertainty where the information may assist future risk assessment.

The claimant, who was aged 14 or 15 when the events occurred, sought judicial review of the Chief Constable’s recording and retention of two crime reports concerning alleged peer-to-peer sexting. One report concerned the sending and forwarding of indecent images; the other concerned an allegation of coercive conduct which was not disclosed to the claimant because of the complainant’s welfare.

The claims challenged the decisions under articles 6 and 8 of the ECHR, section 11 of the Children Act 2004, and the applicable police crime-recording and disclosure guidance. The court considered whether recording without notification engaged article 6, whether the statutory and guidance framework was sufficiently certain and safeguarded against arbitrariness, and whether retention was proportionate having regard to the claimant’s status as a child.

1. Outcome. The claim concerning the second incident was dismissed. Permission to proceed on the article 6 ground in the claim concerning the third incident was refused. Permission was granted on the remaining grounds, but the substantive challenges were dismissed.
2. A crime report is not a criminal charge or criminal record. Recording a reported offence and identifying a person as a suspect does not engage article 6 merely because criminal proceedings might theoretically have followed. The authorities concerning the commencement of the reasonable-time guarantee and the special position of children did not alter that conclusion.
3. The systematic collection and retention of retrievable police information interferes with article 8, but the interference may be justified for crime prevention, public safety and protection of others. Following Catt, the statutory framework, codes and guidance supplied safeguards against arbitrary collection and retention. The newer GDPR and Data Protection Act 2018 regime was at least as protective.
4. Section 11 of the Children Act 2004 requires police functions to be performed having regard to the need to safeguard and promote children’s welfare. It does not change the nature or scope of those functions. The duty operates through the decision-making process and the proportionality assessment.
5. The low recording threshold under the Home Office Counting Rules was deliberate and lawful. Outcome 21 permits a proportionate decision not to investigate or prosecute while preserving information that may serve legitimate policing purposes. Recording may remain appropriate even where the allegation is not fully investigated and evidential uncertainty remains.
6. Proportionality required a substantive balancing exercise. The claimant’s best interests were a primary consideration, but had to be balanced against the interests of other children and the public interest in identifying possible patterns of behaviour. The retention of both reports was justified, particularly because the reports, if true, suggested increasingly serious conduct. The claimant’s challenges therefore failed.