Dalton, R (On the Application Of) v The Crown Prosecution Service (CPS)

This is a judicial review claim arising from a subject access request made under section 45 of the Data Protection Act 2018. The court held that the CPS's original undated decision communicated on 12 March 2019 was unlawful because it adopted a blanket refusal rather than performing the document-by-document evaluative exercise required by section 45(4). The CPS remedied that error by re-making decisions and providing extensive disclosure on 8 November 2019 and again on 25 February 2020, applying only s.45(4)(e) redactions for third-party data and claiming legal professional privilege where appropriate.

The judge refused permission to amend the claim to challenge the November 2019 and February 2020 decisions because the claimant had not sought permission as required by CPR 54.15 and the Administrative Court Guide; the court would in any event have refused such permission as a matter of discretion because the CPS had re-made its decision and there was a better alternative remedy through the Information Commissioner. The court declared the 12 March 2019 decision unlawful and directed that the claimant's damages claim be transferred to the County Court for determination.

Background and parties

The claimant, Mr Dalton, then a prisoner, made a subject access request to the Crown Prosecution Service on or about 27 February 2019 under section 45(1) of the Data Protection Act 2018 (Part 3). The CPS replied on 12 March 2019 with a blanket refusal citing the then-relevant provisions of section 45(4). The claimant issued judicial review proceedings challenging that decision and sought interim relief and damages.

Procedural history

• Permission to apply for judicial review of the 12 March 2019 decision was initially refused on the papers on 29 July 2019 but a renewed oral application was allowed by Deputy High Court Judge Fordham on 5 September 2019.
• The CPS re-considered and re-made its decision, disclosing identified documents on 8 November 2019 (248 pages) and, after further review, on 25 February 2020 (bringing disclosure to 1,187 pages) with redactions said to be justified under s.45(4)(e) and some reliance on legal professional privilege.

Nature of the claim and issues

The claim sought judicial review of the CPS's refusal to disclose personal data. The principal legal issues were (i) whether the CPS had lawfully applied s.45(4) of the DPA by giving individual consideration to documents rather than adopting a blanket refusal; (ii) whether judicial review remained an appropriate remedy given the availability of the Information Commissioner as an alternative forum to test redactions and compliance with the DPA; and (iii) whether permission should be given to amend the proceedings to challenge the later re-made decisions of 8 November 2019 and 25 February 2020.

Court's reasoning and decision

• The court emphasised the need for procedural rigour in public law litigation and the requirement in CPR 54.15 to obtain permission before advancing new grounds or targeting replacement decisions. The court relied on the guidance in R (Talpada) and the Administrative Court Guide about evolving grounds and amendment.
• The CPS accepted that the original March decision was unlawful because it had not applied document-specific evaluative judgments. It re-made its decisions and disclosed documents with redactions purportedly limited to s.45(4)(e) and to matters protected by legal professional privilege. The judge found that the re-made decisions demonstrated that the necessary evaluative process had been followed in November and February and that the Information Commissioner was the appropriate first port of call to challenge redactions and to inspect unredacted material.
• Because the claimant had not sought permission to amend and because an effective alternative remedy existed, the court concluded that permission to amend to challenge the November and February decisions would have been refused; accordingly the court refused permission to proceed on those grounds. The court declared the original March 2019 decision unlawful and directed that the claimant's claim for damages be pursued in the County Court.

The judgment also contains an admonition to practitioners about evolving grounds of public law claims and the need to comply with procedural rules and case management directions.

At first instance the court declared that the CPS decision communicated on 12 March 2019 was unlawful because it was a blanket refusal and failed to carry out the document-specific evaluative exercise required by section 45(4) of the Data Protection Act 2018. The court refused permission to amend the claim to challenge the re-made decisions of 8 November 2019 and 25 February 2020, principally because permission had not been sought as required by CPR 54.15 and because there was a better alternative remedy via the Information Commissioner; the court therefore would have refused permission in any event. The claimant's damages claim was directed to be transferred to the Central London County Court for determination.

Not an appeal. Procedural history in the High Court: permission to apply for judicial review in respect of the decision of 12 March 2019 was initially refused on the papers (29 July 2019) but a renewed oral application before Deputy High Court Judge Fordham on 5 September 2019 was granted; case management directions were made (order dated 14 October 2019); substantive hearing listed for 28 November 2019 was vacated and the matter was re-listed and heard before Andrews J on 15 July 2020. In the interim the CPS re-made decisions on 8 November 2019 and 25 February 2020 and provided disclosure which became the subject of contested argument in these proceedings.