Lee McLoughlin v Chief Constable Of Kent Police

The claimant brought proceedings under the Data Protection Act 2018 alleging that a passage in a police witness statement used in his 2016 criminal proceedings was personal data and inaccurate. The county court judge (HHJ Parker) refused the defendant's application to strike out or enter summary judgment, finding there was a real prospect that the relevant passage could be read as inaccurate and that the claim was not an abuse of process. On appeal Mr Justice Kerr allowed the appeal on the ground that the claim constituted an abuse of process because it was an attempt to re-litigate issues that arose, or could and should have been raised, in the criminal proceedings and in prior judicial review proceedings. The judge’s alternative conclusion that the passage was arguably inaccurate under section 205(1) DPA 2018 was not disturbed, but that conclusion was irrelevant because the abuse of process finding was dispositive.

Background and facts.

• The claimant pleaded guilty in 2016 to nine counts of possession of indecent images of children after digital material was seized from his home and analysed. Two police witness statements (by DC Brett and an expert, Mr Bates) were relied on in the prosecution. A passage in DC Brett’s statement stated that during times that searches/downloads of indecent images were occurring, a person was logged into a Facebook account in the claimant's name. The claimant later complained that that passage was false.
• After disclosure of the statement to Leicestershire authorities in 2017, the claimant pursued complaints to the IPCC/IOPC which were rejected and sought, unsuccessfully, permission for judicial review (refused by Ms Steyn QC on 25 February 2019). He brought the present claim under the Data Protection Act 2018 in January 2022 seeking damages and injunctive relief; Kent Police applied to strike out and/or for summary judgment in April 2022.

Procedural posture.

• HHJ Parker (Canterbury County Court) dismissed the application in May 2023, holding the claim was not abusive and that the claimant had a reasonable prospect of establishing that the passage in DC Brett’s statement was inaccurate. Hill J granted permission to appeal in November 2023. The appeal was heard by Mr Justice Kerr on 11 March 2024 and determined on 1 May 2024.

Nature of the claim / relief sought. The claimant sought remedies under the Data Protection Act 2018, including damages and a compliance order, on the basis that the contested material in the witness statement constituted inaccurate personal data.

Issues before the court.

• Whether the claim was an abuse of process because it amounted to a collateral attack or re-litigation of matters arising from the criminal proceedings and the prior refused judicial review.
• Whether the relevant passage in the witness statement was arguably inaccurate such that the claimant had a realistic prospect of succeeding under the DPA 2018 (section 205(1)).
• Relatedly, whether the claim was so trivial or disproportionate that it should be struck out as pointless or wasteful litigation (the "game not worth the candle" concept derived from Jameel).

Court’s reasoning.

• On abuse of process the court held a broad merits-based approach was required. Mr Justice Kerr concluded the claimant had had opportunities in the criminal proceedings to clarify or qualify the factual position (for example by a basis of plea) and that the present proceedings were, in substance, an attempt to revisit the safety of the conviction and the same factual issue that had been rejected in the prior judicial review. That amounted to an abuse of process and was dispositive.
• On accuracy, the judge below had been entitled to conclude that, read in isolation, the contested passage could reasonably be understood to mean that Facebook access was simultaneous with searches/downloads and thus arguably misleading compared with the expert’s evidence. Mr Justice Kerr did not overturn that conclusion but held it was immaterial once the abuse of process point succeeded.
• The court considered but did not finally decide questions about witness immunity or whether the law enforcement context affects justiciability under the DPA 2018; those issues were unnecessary to resolve for disposal of the appeal.

Result. The appeal succeeded on the re-litigation/abuse of process ground; the claimant’s DPA claim was therefore halted. The judge indicated he would consider what consequential order to make.

This was an appeal. The appeal is allowed on the ground that the claimant’s Data Protection Act 2018 claim amounts to an abuse of process by attempting to re-litigate issues arising from, and capable of being raised in, the earlier criminal proceedings and the prior judicial review. The judge below was right that the contested witness-statement passage could arguably be inaccurate under section 205(1) DPA 2018 but that point is superseded by the abuse conclusion. The claim will proceed no further for that reason.

Claim under the Data Protection Act 2018 issued 25 January 2022 (High Court, then transferred to Canterbury County Court). Defendant's application to strike out and/or summary judgment heard May 2023 before HHJ Parker who dismissed it. Permission to appeal granted by Hill J in November 2023. Appeal heard by Mr Justice Kerr (this judgment) 11 March 2024 (handed down 1 May 2024). Prior related judicial review permission was refused by Ms Karen Steyn QC on 25 February 2019 (refusal of permission to apply for judicial review of IOPC/Kent decisions).