II, R (On the Application Of) v Commissioner of Police of the Metropolis

The court considered whether the defendant police force lawfully retained the claimant's personal data arising from a Prevent referral made when he was 11. The central legal issues were proportionality under Article 8 ECHR and compliance with the Data Protection Act 2018 (Part 3; ss.35, 37 and 39), and whether the public sector equality duty had been breached.

The court accepted the contemporaneous decision to close the referral on the basis that there was no cause for concern that the claimant was vulnerable to radicalisation, and found that some of the allegations were shown to be untrue or misinformed. The defendant relied on MOPI retention guidance and the Prevent duty (s.26 Counter-Terrorism and Security Act 2005) to justify retaining the records for up to six years.

Applying the proportionality assessment under Article 8, the judge afforded weight to counter-terrorism expertise but concluded that continued retention was now disproportionate on these facts: the referral dated from late 2015, no further concerns had arisen over nearly five years, and the claimant is a child whose privacy interests are significant. The court held the retention breached Article 8 and ss.35 and 39 DPA but did not breach s.149 Equality Act 2010.

Background and parties

The claimant is a young person who was the subject of a Prevent referral in late 2015 following concerns raised by an online tutor. The Metropolitan Police investigated and closed the matter in June 2016. The claimant challenged a decision of 26 April 2019 refusing to delete the retained personal data. Permission for judicial review and anonymity were granted; a wider policy challenge was withdrawn during the proceedings.

Nature of the claim and relief sought

• The claimant sought judicial review of the decision to retain his personal data, arguing breaches of Article 8 ECHR, the first, third and fifth data protection principles in the Data Protection Act 2018 (Part 3: ss.35, 37, 39) and the public sector equality duty under s.149 Equality Act 2010.

Issues framed by the court

• Whether the continued retention of the claimant's personal data constituted a proportionate interference with his Article 8 rights.
• Whether retention complied with the DPA law enforcement principles (lawful/necessary, not excessive, and no longer than necessary).
• Whether the defendant had due regard to the public sector equality duty.

Evidence and findings of fact

The court analysed contemporaneous records (the Dev Plan, school responses and officers' notes) and later witness statements. The contemporaneous material recorded that schools had no concerns, the visiting officers found no CT/VE indicators, the mother denied the allegations and the local Prevent panel closed the case on 20 June 2016. The defendant held the claimant's information across a range of police and multi-agency databases. The defendant relied on MOPI retention schedules (Group 4, six-year minimum) and a decision letter explaining retention as necessary under the Prevent duty.

Court's reasoning

The judge applied the established approach to ex post facto reasoning and gave weight to the expertise of counter-terrorism officers, but examined proportionality afresh. The court concluded that the closure in 2016 was properly founded: several allegations were misinformed or untrue and there was no evidence of radicalisation or vulnerability thereafter. On the facts, continued retention until the six-year mark and beyond was disproportionate: the referral was old, no subsequent concerns had emerged over nearly five years, and retention carried a real and continuing privacy burden for a child, including fear of disclosure.

The court held that continued retention breached Article 8 and, correspondingly, the first and fifth data protection principles in ss.35 and 39 DPA (retention was not "necessary" or "strictly necessary" and involved sensitive processing). The public sector equality duty had been considered by the decision-maker and was not breached.

Implications

The judgment emphasises the need for fact-sensitive proportionality assessments where children are concerned and the careful application of retention schedules to avoid disproportionate interferences with private life.

First instance: the claim succeeded in part. The court held that continued retention of the claimant's personal data was a disproportionate interference with Article 8 rights and breached the first and fifth data protection principles (ss.35 and 39 of the Data Protection Act 2018). The decision did not breach s.149 Equality Act 2010. The rationale was that the contemporaneous evidence demonstrated closure on the merits, no further concerns had arisen over several years, and retention across multiple databases unjustifiably interfered with a child’s private life despite weight being given to CT expertise and MOPI guidance.