AB v Chief Constable of British Transport Police

Accuracy under the fourth data protection principle depends on the meaning conveyed by the record in its context. A police occurrence summary report intended to record information received and police action is accurate if it faithfully records the allegation, even if the underlying incident did not occur as alleged. The court may make factual findings where accuracy and proportionality are disputed. Retention of police data engages article 8 and requires a fact-sensitive balance between privacy and crime prevention, including the risk posed by the data subject. An appellate court should not disturb an evaluative proportionality conclusion unless it is wrong. On the exceptional facts, retention was disproportionate despite the records being accurate.

AB, who has autistic spectrum disorder and anxiety, challenged the retention by the British Transport Police of occurrence summary reports concerning two unprosecuted complaints of sexual touching. He alleged breaches of the fourth data protection principle under the Data Protection Act 1998 and Data Protection Act 2018, and an unjustified interference with his rights under article 8 ECHR.

The County Court (Manchester) found the reports inaccurate, held their retention disproportionate, ordered deletion, and awarded damages for loss of earnings, distress and aggravated damages. On appeal, the central issues were whether the reports recorded the underlying facts or merely the information supplied to the police, whether retention was proportionate, and whether the damages awards were sustainable.

Disposition. The appeal succeeded only on the accuracy issue. The appeal was dismissed against the declaration that retention of the records breached article 8 and against the damages awards.

1. Fact-finding. This was a private-law claim involving disputed issues of accuracy and proportionality, with witnesses and oral evidence. The judge was entitled, and required, to make findings about the underlying incidents. The different approach in R (YZ) v South Wales Police [2021] EWHC 1060 and [2022] EWCA Civ 683 reflected judicial review proceedings without live evidence or a challenge to accuracy.
2. Meaning and accuracy. Following NT1 v Google LLC [2018] EWHC 799 (QB), the court must first determine what personal data mean in context. The contextual approach illustrated by Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772 was relevant. The occurrence summary reports were restricted police audit records of information received and police action. Their modus operandi fields recorded the complainants’ accounts, not findings that the underlying events occurred as alleged.
3. Application. The reports faithfully recorded what the officers had been told, as reflected in the pocketbooks. They were therefore accurate, even though the judge found that AB had not touched either complainant as alleged. The omission of AB’s later medical explanation did not make the reports inaccurate, particularly as later entries recorded his account.
4. Article 8. Retention was an interference with private life and had to be in accordance with law and proportionate to crime prevention. The first-instance conclusion that the legal limb failed because the reports were inaccurate could not stand. The court did not finally determine whether the admitted failure to conduct triggered reviews under authorised professional practice independently made retention unlawful. It observed that lack of resources could not justify non-compliance with an unqualified legal obligation, consistently with R (C) v Commissioner of Police of the Metropolis [2012] EWHC 1681 (Admin).
5. Proportionality. The risk posed by the data subject was a relevant factor, and the judge was entitled to form his own view. The assessment remained highly fact sensitive. In this case, AB’s exceptional distress and the absence of any real public risk outweighed the policing benefit of retention. The conclusion was not wrong. The appellate restraint described in In re B (a child) (care proceedings: threshold criteria) [2013] UKSC 33 applied.
6. Damages. Under Santos v Eaton Square Garage Ltd [2007] EWCA Civ 225, intervention in a damages award requires more than a view that a lower sum would have been preferable. The judge could directly assess distress caused by retention where it could be separated from other causes, as explained in BAE Systems (Operations) Ltd v Konczak [2017] EWCA Civ 1188. The awards were not wholly erroneous, and the aggravated-damages issue had been pleaded and evidenced.

1. High Court (King's Bench Division): On appeal, held that the police reports were accurate but upheld the conclusion that their retention was a disproportionate interference with article 8 rights and upheld the damages awards.
2. County Court (Manchester): After a five-day trial, held that the reports were inaccurate, ordered their deletion, declared retention unlawful under article 8, and awarded £15,000 for loss of earnings, £15,000 for distress and £6,000 aggravated damages.