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

Procedural fairness in police crime-recording decisions is context dependent. Where recording an alleged offence may seriously affect a person’s private life and future disclosure, fairness may require the allegation to be put to that person for comment.

Under the Home Office Counting Rules, recording requires a two-stage assessment: whether the reported circumstances probably amount to a crime defined by law, and whether there is credible evidence to the contrary. In an allegation of parental chastisement, the police must assess whether the conduct was more than moderate and reasonable punishment, having regard to the factors identified in H. A report of smacking alone does not establish a recordable common assault.

The claimant sought judicial review of decisions by the Chief Constable concerning the retention and classification of local police records arising from an investigation into alleged sexual touching of his five-year-old son during toilet training.

The sexual-offence allegation was investigated and treated as unfounded. A later decision-maker rejected cancellation and reclassified the report as common assault, relying on an alleged account that the claimant smacked his son. The claimant had not been asked about that allegation, and the record inaccurately attributed anger to him.

The issues included common-law fairness, Article 8, the Data Protection Act 2018, alternative remedies and delay.

1. Outcome. The decision of 4 October 2022 to reclassify the crime report as common assault was unlawful and was quashed. The later decision of 2 February 2023 was infected by that error. The claim succeeded.
2. Fairness is context dependent, but the claimant faced serious consequences from a record alleging that he had assaulted his young son. In those circumstances, and given the earlier mistaken sexual-offence investigation, the allegation should have been put to him. Failure to do so was procedurally unfair.
3. The decision-maker also misapplied the Home Office Counting Rules. The inquiry had two stages: whether the child had reported conduct and whether, on the balance of probabilities, that conduct amounted to a crime. Lawful and reasonable parental chastisement remained lawful in England. The decision-maker wrongly treated lawful chastisement as irrelevant until charge and trial.
4. Applying the factors identified in H, the available material did not rationally establish conduct exceeding moderate and reasonable punishment. The decision-maker relied on an inaccurate and ambiguous hearsay entry, failed to consult the contemporaneous notes or investigating officers, and failed to make reasonable enquiries.
5. The unlawful recording interfered with Article 8. Because the interference was unlawful under domestic law, it was not in accordance with the law for Article 8(2) purposes. The claimant was entitled to a declaration.
6. The processing breached Part 3 of the Data Protection Act 2018, including the first and fourth data protection principles. The data was unlawfully and unfairly processed and was inaccurate. The court rejected the alternative-remedy and delay objections.
7. The crime report was to be amended so that references to common assault were removed and the sexual-offence report stood cancelled for the reason that no notifiable crime had occurred. An order under section 167 of the Data Protection Act 2018 was made if necessary.