O, R (on the application of) v Chief Constable of Kent Police

The claimant sought judicial review of decisions by Kent Police to retain a local Crime Report which, following internal review, had been reclassified to record a common assault (alleged smacking) and which would attract long retention under MOPI/College of Policing guidance and potentially appear on enhanced disclosure. The court held that the Dedicated Decision Maker's decision of 4 October 2022 to reclassify the report to common assault was procedurally unfair and unlawful at common law because the allegation that the father smacked the child had not been put to the claimant, the decision-maker had misread and relied on an ambiguous crime log, had failed to make reasonable enquiries and had misapplied the Home Office Counting Rules (HOCR) by failing to assess, on the balance of probabilities, whether the reported conduct amounted to unlawful conduct as opposed to lawful chastisement under the Children Act 2004 s 58. The reclassification infected the later decision of 2 February 2023 to retain the record. The court found that retention and record content breached Part 3 of the Data Protection Act 2018 (including the lawfulness and accuracy principles) and interfered with the claimant’s Article 8 rights, and granted relief under s 167 DPA 2018 to delete references to common assault and a declaration of breach of Article 8.

The claimant (anonymised) was arrested after his five-year-old son made statements at school suggesting that the claimant had touched the child’s genital area. After investigation, specially trained officers concluded the touching was for toilet training and not sexual assault. A later internal review recommended cancellation because additional verifiable information indicated no sexual offence (HOCR cancellation C2). A Dedicated Decision Maker (DDM) subsequently reclassified the incident on 4 October 2022 as common assault on the basis that the child had said the claimant smacked him when angry. That reclassification was not communicated to the claimant at the time and remained on local police systems. The claimant sought deletion of records and brought judicial review and data protection claims.

Nature of the claim / relief sought

• (i) Judicial review of the decisions dated 13 September 2022, 4 October 2022 and 2 February 2023 to retain the claimant’s personal data and not to delete or cancel crime report 46/49202/22.
• Relief included quashing the DDM decision, deletion of references to common assault, and declarations and orders under s 167 DPA 2018 for erasure to secure compliance with the data protection legislation.

Issues framed by the court

1. Whether the 4 October 2022 decision was unlawful at common law, under Article 8 ECHR, and/or under the DPA 2018;
2. Whether the 2 February 2023 decision was unlawful on the same bases;
3. Whether ss 51 and/or 167 DPA 2018 provided adequate alternative remedies;
4. Whether the court should exercise discretion to hear the DPA claims;
5. Whether the challenge to the 4 October 2022 decision was out of time; and
6. If time-barred, whether time should be extended.

Court’s reasoning (concise)

• The DDM’s decision of 4 October 2022 was procedurally unfair and unlawful: the DDM had misread the contemporaneous material, treated an ambiguous hearsay Crime Report entry as decisive, failed to consult investigating officers, did not put the newly recorded allegation (smacking) to the claimant, and made no reasonable enquiries (Tameside principle).
• The DDM also misapplied the HOCR by treating any reported smack as necessarily a recordable crime irrespective of whether, on the balance of probabilities, the conduct constituted reasonable chastisement. The court held the correct approach required a qualitative assessment of whether the reported conduct, in context, was more likely than not unlawful (applying the common law test for reasonable chastisement).
• Because the DDM decision was unlawfully taken it infected the later retention decision; the retained data was inaccurate in content and therefore breached Part 3 DPA 2018 (notably the lawfulness/fairness and accuracy principles) and interfered with Article 8 rights; where interference is unlawful under domestic law it fails the Article 8(2) requirement of being "in accordance with the law."
• The court declined to refuse jurisdiction on alternative remedies or lapse arguments: permission had been granted, the case had a complex factual history and the claimant had acted promptly once the relevant material had been disclosed; statutory DPA remedies were not an adequate substitute for resolution of the public law and Article 8 issues in this case.
• Remedies granted: quashing of the DDM decision of 4 October 2022; declaration of Article 8 breach; and an order under s 167 DPA 2018 requiring deletion of references to common assault so that the Crime Report stands as cancelled for the AVI/C2 reason.

The court noted that early deletion of records is rare under MOPI/College of Policing guidance but concluded that the particular procedural and substantive failings here required erasure of the common-assault entry and a declaration as to the breach of rights.

The claim is allowed. The court quashed the Dedicated Decision Maker's reclassification decision of 4 October 2022 because it was procedurally unfair, infected the later retention decision of 2 February 2023, and breached Part 3 DPA 2018 and Article 8 ECHR. The court ordered deletion of references to common assault from the Crime Report under s 167 DPA 2018 and granted a declaration of breach of Article 8. The rationale was that the DDM misread and relied on ambiguous hearsay notes, failed to make reasonable enquiries or consult officers or the claimant, and misapplied the HOCR by not assessing whether the reported conduct was unlawful rather than lawful chastisement on the balance of probabilities.