AB v Chief Constable of British Transport Police

The High Court considered claims that the appellant police force had unlawfully retained personal data about the respondent in breach of data protection principles and that such retention unjustifiably interfered with his article 8 ECHR rights. The central legal questions were (i) how to construe police occurrence summary reports (OSRs) for the purposes of the accuracy requirement in the fourth data protection principle, and (ii) whether retention of the records was proportionate to the public interest in preventing crime.

The court held that an OSR records the information provided to the police and the police actions taken, rather than making a statement that the data subject in fact committed the acts described. Applying that meaning, the OSRs in issue accurately reflected the initial accounts recorded in officers' pocketbooks and were therefore not inaccurate for the purposes of data protection law. The court nonetheless upheld the trial judge's conclusion, on the facts of this case, that retention of the records was a disproportionate interference with the respondent's article 8 rights and dismissed the appeal against the judge's declaration and awards save for a narrow allowance: the appellate court found the OSRs to be accurate, contrary to the trial judge.

Background and parties: The respondent (AB), a man diagnosed with autistic spectrum disorder (Asperger type) who uses stimming to manage anxiety, was the subject of two complaints (2011 and 2014) alleging inappropriate touching on trains. The police created occurrence summary reports (OSRs) and retained records recording the allegations. AB brought proceedings asserting that the records were inaccurate (breach of the fourth data protection principle) and that retention was a disproportionate interference with his article 8 right to respect for private life. He sought deletion and damages. The action proceeded to a five-day trial and reserved judgment by HHJ Sephton KC in the County Court (Manchester).

Procedural posture: The appellant (Chief Constable of British Transport Police) appealed to the High Court, King’s Bench Division (Media and Communications List) against the trial judge’s findings that the OSRs were inaccurate, that retention breached article 8 and an order requiring deletion and awards of damages.

Issues framed:

• How should police crime reports (OSRs) be interpreted for the purpose of assessing accuracy under data protection law: do they assert what in fact happened, or do they record the information supplied to the police?
• Were the OSRs in this case inaccurate?
• Was retention of the records a proportionate interference with AB’s article 8 rights?
• Were the awards of damages and aggravated damages appropriate?

Court’s reasoning and conclusions: The court first analysed meaning: OSRs are prepared to record reports received and the police actions taken; their modus operandi field reflects the complainant’s account for police operational purposes and does not itself assert a factual finding that the suspect committed the act described. Because the pocketbook entries and witness statements were found to have been accurately recorded by officers, the OSRs accurately reflected what was told to police and thus were not inaccurate for the purposes of the fourth data protection principle. To the limited extent the trial judge concluded otherwise, that aspect of his decision was overturned.

The court then considered article 8. Although it disagreed with the trial judge on accuracy, it accepted his separate proportionality analysis: retention amounted to a disproportionate interference with AB’s article 8 rights on the facts, having regard to the sensitive nature of the data, AB’s particular vulnerability and distress (amplified by his disability), and the limited public protection benefit given the judge’s findings about risk. The appellate court therefore dismissed the appellant’s challenge to the declarations, deletion order and awards of damages other than the narrow finding on accuracy. The court also noted the police force’s admitted systemic failure to carry out required "triggered" reviews under authorised professional practice and that lack of resource was not a legal justification for non-compliance.

Appeal allowed in part. The High Court held that OSRs are records of information supplied to police and of police actions, not standalone findings that the subject committed the acts; accordingly the OSRs in this case were accurate and the trial judge was wrong to find them inaccurate. However, the court upheld the trial judge’s separate proportionality conclusion that retention of the records unlawfully interfered with the respondent’s article 8 rights and dismissed the appeal against the declarations, deletion order and damages awards.

On appeal from the County Court (Manchester), judgment below by His Honour Judge Sephton KC. This judgment was delivered by the High Court, King's Bench Division, Media and Communications List, neutral citation [2022] EWHC 2749 (KB).