R (CL) v Chief Constable of Greater Manchester Police

This judicial review concerned the police recording and retention of crime reports relating to peer-to-peer "sexting" by a child and whether that recording and retention interfered unjustifiably with the claimant's rights under article 8 of the European Convention on Human Rights and/or article 6. The court applied the domestic and European data protection and human rights framework (including the GDPR/DPA 2018, the previous DPA 1998 regime, the Home Office Counting Rules and the College of Policing guidance such as the "Sexting Briefing Note") and national police guidance on recording and disclosure (including Outcome 21 of the HOCR and the Disclosure Guidance for enhanced DBS checks).

The court refused permission on the article 6 challenge, holding that the crime reports did not amount to a criminal charge or trigger article 6 rights to a fair trial because the claimant had not been charged or formally accused and the outcome chosen (no formal action) was consistent with police practice. On article 8 the court held that the statutory and regulatory framework governing police collection, retention and possible disclosure of information is "in accordance with the law" and provides safeguards against arbitrary interference, and that the retention of the claimant's data in the specific circumstances was proportionate in the light of the prevention of crime and protection of others. The claimant's challenge was therefore dismissed.

The claimant, treated as a minor for litigation, sought deletion of two police crime reports arising from alleged involvement in peer-to-peer sexting. He claimed (i) breach of article 8 ECHR by recording and retaining identifying information, (ii) breach of article 6 ECHR in relation to non-disclosure of an allegation and (iii) failure to have regard to his status as a child under section 11 of the Children Act 2004. The claimant also challenged aspects of the HOCR and Outcome 21 and relied on data protection principles under the DPA regimes.

Background and procedure:

• The claimant was recorded as a suspect in two school-related sexting incidents occurring when he was 14–15. A further allegation involving a different girl led to a separate report allocated Outcome 21. The claimant issued two judicial review claims (CO/3515/2016 and CO/1076/2018) seeking deletion of identifying data and declarations about the lawfulness of the recording/retention regime. Permission to pursue some grounds was granted after earlier refusals and interlocutory steps; hearings took place in July and October 2018.

Issues framed by the court:

• Issue 1: Whether article 6 ECHR was engaged by the recording of the third incident without informing the claimant or his parents.
• Issue 2: Whether the police regime for collection and retention of information about possible offences by children is "in accordance with the law" for article 8 purposes and sufficiently predictable (including challenges to HOCR and Outcome 21).
• Issue 3: Whether retention of the claimant's data was a disproportionate interference with article 8 rights, particularly given his status as a child and the duty in section 11 Children Act 2004.

Court's reasoning and conclusions:

• On issue 1 the court held article 6 was not engaged because the claimant had not been charged or formally accused; Outcome 21 and the practice it formalises involve no formal criminal process and do not convert a recorded allegation into a criminal charge.
• On issue 2 the court concluded that the current statutory and regulatory framework (the DPA regimes, GDPR, the Code of Practice/MOPI/Authorised Professional Practice, HOCR and Disclosure Guidance) provides the necessary safeguards and predictability to satisfy the "in accordance with the law" requirement under article 8. The court considered and distinguished earlier authorities relied on by the claimant and treated Catt and subsequent regulatory developments as determinative of legality.
• On issue 3 the court carried out the proportionality balancing exercise, taking into account the claimant's age, the UN Convention on the Rights of the Child and the statutory duty to have regard to child welfare. It accepted expert evidence that peer-to-peer sexting can be seen as normative in some contexts but emphasised that sexting also carries potential harms and that the relevant offences (Protection of Children Act 1978 and Sexual Offences Act 2003) are serious. The court concluded that retention of the claimant's details was proportionate because the reports, taken together, showed a pattern that could pose a risk to others and the public interest in prevention and protection outweighed the private-life interference.

Relief and practical points: The court dismissed claim CO/3515/2016 and refused permission in CO/1076/2018 on the article 6 ground, granting permission on other grounds but ultimately dismissing those substantive challenges. The judgment emphasises the regulated nature of police recording/retention and the safeguards in the disclosure/DBS process (including chief officer discretion and internal review/appeal routes) as part of the protective balance.

The court dismissed the claimant's challenges. The article 6 challenge was refused permission on the basis that recorded crime reports in these circumstances did not amount to a criminal charge and article 6 procedural rights were not engaged. On article 8 the court held that the statutory and regulatory framework governing police collection, retention and possible disclosure of personal data is "in accordance with the law" and provided sufficient safeguards, and that retention of the claimant's data in the circumstances was proportionate given the public interest in preventing harm and protecting others; accordingly the substantive claims were dismissed.

The proceedings were first issued as CO/3515/2016 and CO/1076/2018. On 14 April 2017 Sweeney J refused permission to proceed in respect of aspects of the challenge. Permission was subsequently renewed and, on 10 November 2017, Kerr J granted permission to proceed limited to the claimant as an individual and not to a challenge to guidance generally. On 28 August 2018 Moulder J adjourned the application for permission in the second claim to open court on a rolled-up basis. The present judgments were handed down by the Divisional Court (Hickinbottom LJ and Moulder J) on 6 December 2018 (neutral citation [2018] EWHC 3333 (Admin)).