QSA & Ors, R (On the Application Of) v National Police Chiefs' Council & Anor

The claim challenged the National Police Chiefs’ Council policy "Deletion of Records from National Police Systems (v2.1)" under which Court convictions are retained on the Police National Computer until a person is deemed to have reached 100 years of age (the "100-year rule"). The Claimants argued that retention of their convictions under s.1 Street Offences Act 1959 engaged and violated Article 8 ECHR because it was not "in accordance with the law" and was disproportionate.

The Divisional Court held that Article 8 was engaged but that the NPCC Policy was accessible, precise and predictable: it is a bright-line rule which does not confer a discretionary power liable to arbitrary application. On the issue of proportionality the court applied the four-fold Bank Mellat test and concluded that maintaining a comprehensive and complete PNC record is a sufficiently important objective, that the 100-year rule is rationally connected to that objective and that no less intrusive alternative would preserve the essential completeness of the PNC. Balancing the competing interests the court found the interference proportionate. The application for judicial review was dismissed.

The claimants (three women convicted decades earlier of loitering for the purposes of prostitution under s.1 Street Offences Act 1959) sought judicial review of the NPCC policy that leaves court convictions recorded on the Police National Computer until an individual is deemed to have reached the age of 100. The claimants, who say their convictions arose when they were exploited and that the continuing retention causes them distress and practical disadvantage, advanced three grounds: that retention (i) was not in accordance with the law, (ii) was not necessary in a democratic society, and (iii) was disproportionate, in breach of Article 8 ECHR and s.6 Human Rights Act 1998.

The procedural history is important: earlier proceedings led to a successful challenge of the "multiple convictions rule" in the Divisional Court ([2018] EWHC 407 (Admin)), and the Court of Appeal ([2020] EWCA Civ 130) granted permission for judicial review of the retention challenge and remitted that issue for rehearing by a fresh Divisional Court. The present hearing concerned the NPCC Policy (the "100-year rule").

The court framed the legal issues as (1) whether the retention interfered with Article 8 and, if so, whether that interference was "in accordance with the law" (accessibility and foreseeability; scope of discretion and safeguards), and (2) whether the interference was justified and proportionate applying the Bank Mellat four-stage proportionality test.

• On "in accordance with the law": the court concluded the NPCC Policy is accessible and sufficiently precise. As a bright-line, non-discretionary rule it does not suffer the defects of an unconstrained discretionary system. Gallagher, Catt, Bridges, MM and related authorities were considered; the court accepted that safeguards are necessary where discretion exists but found there was no relevant discretion in the 100-year rule and therefore no failure of legality.
• On proportionality: the court accepted the substantial public interest in a comprehensive PNC for the proper administration of justice, policing, safeguarding and other public functions. The 100-year rule was held to be rationally connected to that objective and necessary to preserve the PNC's completeness; less intrusive alternatives would undermine that aim. The interference, although real and distressing to the claimants, did not outweigh the legitimate public objectives.

The court therefore dismissed the judicial review application. The court noted it was unnecessary to decide the First Defendant’s alternative reliance on s.6 Human Rights Act 1998.

The claim is dismissed. The court held that Article 8 was engaged but the NPCC policy (the 100-year rule) is "in accordance with the law" because it is accessible and sufficiently foreseeable as a bright-line rule, and it is a proportionate interference: the maintenance of a comprehensive PNC is a sufficiently important objective, the rule is rationally connected to that objective, no less intrusive practical alternative would preserve essential completeness, and the balance favours retention.

The claim followed earlier proceedings in which the Divisional Court allowed a challenge to the multiple convictions rule ([2018] EWHC 407 (Admin)); the defendant withdrew its appeal after the Supreme Court decision in Re Gallagher ([2020] 2 AC 185). The Court of Appeal ([2020] EWCA Civ 130) allowed the Claimants' appeal on the retention issue and remitted the matter for rehearing by a fresh Divisional Court, which produced the present judgment ([2021] EWHC 272 (Admin)).