DMP, R (on the application of) v The Chief Constable of Warwickshire Police

Home Office crime-recording rules governing statistics supplied to the Secretary of State do not determine whether a police force must retain or delete a record. A retention decision concerning a child under 10 must instead apply the College of Policing’s discretionary guidance, considering the event, the child’s characteristics, risk, safeguarding duties and proportionality; a scheduled review date is not a minimum retention period. The court also held that a present-tense risk-assessment question about capacity to inflict serious harm cannot be answered by speculation about future growth, although this alternative analysis was not necessary to the actual decision. Where the wrong framework is used and adequate reasons are absent, retention is not in accordance with the law for Article 8 and cannot be justified under section 15(1)(b) of the Equality Act 2010. On the facts, retention was disproportionate; permanent deletion and declarations were ordered.

DMP, aged eight when the alleged incident occurred, has autism spectrum disorder, ADHD and anxiety. After an allegation of ABH at a riding stable, the Chief Constable took no criminal action because DMP was below the age of criminal responsibility but retained the allegation on police databases. DMP sought judicial review of the refusal to delete it, alleging misinterpretation of HOCA and the College guidance, irrationality, breach of Article 8, and discrimination arising from disability under section 15 of the Equality Act 2010.

Claims against the Secretary of State for the Home Department and the College were discontinued. The court had to decide whether the retention decision was lawful and proportionate, and what remedy followed.

Disposition. The claim succeeded on grounds 1, 3 and 4. Ground 2 was not necessary because the Decision did not rely on the NRAC or a finding that DMP could inflict serious harm, but the court considered it in the alternative. The Chief Constable was ordered permanently to delete the Record, and declarations were made that its refusal and ongoing retention breached Article 8 and section 15 of the Equality Act 2010.

1. Crime recording and retention. Section 44 of the Police Act 1996 and HOCA concerned information and crime statistics supplied to the Secretary of State. They did not govern the retention or deletion of a police-held record. The Guidance gave professional discretion and did not impose a minimum ten-year retention period. A ten-year date was a scheduled review point, not an expiry date. On a triggered review, the decision-maker had to consider the event, the child’s characteristics, proportionality, risk, fundamental rights and, for a child under 10, safeguarding duties under section 11 of the Children Act 2004. The Decision failed to apply that framework.

2. Capacity and irrationality. The court used the distinction between process and outcome rationality described in (RKP) v SSFCDO [2025] EWHC 370 Admin. Had the Decision relied on the NRAC finding, it would have been irrational to conclude that DMP had capacity to inflict serious harm without understanding why the conduct occurred and the likelihood of recurrence, given the known disabilities and asserted autistic meltdown. The NRAC question was expressed in the present tense. Possible future physical development could be considered in the overall assessment but did not establish present capacity.

3. Article 8 and proportionality. Misapplication of HOCA and failure to apply the Guidance meant that retention was not in accordance with the law and breached Article 8. The court also considered proportionality using the four-question framework in Bank of Mallat v HM Treasury (No2) [2014] AC 700. Because the Decision gave no adequate reasons, the court assessed the balance itself, applying the approach supported by Belfast CC v Miss Behavin’ Ltd [2007] 1 WLR 1420. Retention caused significant interference, Children’s Services were better placed to address welfare, and there was no real current risk of serious harm. RMC & FJ v Metropolitan Police Commissioner [2012] 1 WLR 3007 was distinguishable because it concerned deletion of one of four matters.

4. Equality Act and remedy. The Chief Constable conceded that retention was unfavourable treatment caused by behaviour arising from disability. The same proportionality assessment showed that section 15(1)(b) of the Equality Act 2010 was not satisfied. The fundamental errors were not merely failures to explain an otherwise lawful decision. Remittal would therefore be inappropriate. Permanent deletion and the declarations sought were ordered.

This was a first-instance judicial review. The claims against the Secretary of State for the Home Department and the College were discontinued on 11 September 2025. Eyre J granted permission on grounds 1 and 2; grounds 3 and 4 were renewed and heard on a rolled-up basis with the substantive claim. The present court determined all four grounds.