(1)The first data protection principle is that the processing of personal data for any of the law enforcement purposes must be lawful and fair.
(2)The processing of personal data for any of the law enforcement purposes is lawful only if and to the extent that it is based on law and either—
(a)the data subject has given consent to the processing for that purpose, or
(b)the processing is necessary for the performance of a task carried out for that purpose by a competent authority.
(3)In addition, where the processing for any of the law enforcement purposes is sensitive processing, the processing is permitted only in the two cases set out in subsections (4) and (5).
(4)The first case is where—
(a)the data subject has given consent to the processing for the law enforcement purpose as mentioned in subsection (2)(a), and
(b)at the time when the processing is carried out, the controller has an appropriate policy document in place (see section 42).
(5)The second case is where—
(a)the processing is strictly necessary for the law enforcement purpose,
(b)the processing meets at least one of the conditions in Schedule 8, and
(c)at the time when the processing is carried out, the controller has an appropriate policy document in place (see section 42).
(6)The Secretary of State may by regulations amend Schedule 8—
(a)by adding conditions;
(b)by varying or omitting conditions added by regulations under paragraph (a).
(7)Regulations under subsection (6) are subject to the affirmative resolution procedure.
(8) In this Part , “sensitive processing” means—
(a)the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs or trade union membership;
(b)the processing of genetic data, or of biometric data, for the purpose of uniquely identifying an individual;
(c)the processing of data concerning health;
(d)the processing of data concerning an individual's sex life or sexual orientation.
Cases considering section 35 18
[2022] EWCA Civ 683 · 19 May 2022Interprets
Section 35 requires law-enforcement processing to be lawful and fair and, for sensitive personal data, strictly necessary for specified purposes. Retention must also be proportionate, and strict necessity is for the court to determine for itself on judicial review. (see paras [26]–[29], [72]–[78])
Section 35(1) forms part of the requirement that law-enforcement processing be lawful and fair. The court treats compliant retention as requiring more than rationality: it must satisfy the statutory lawfulness, fairness, necessity and proportionality requirements. (see paras [26]–[29], [56], [72]–[78])
Section 35(2) is part of the statutory scheme governing sensitive personal data and the need for an appropriate policy framework. The court holds that the applicable police-records policies met the relevant requirements. (see paras [56], [71]–[73])
Section 35(2)(b) is treated as requiring strict necessity for processing sensitive personal data for a specified law-enforcement purpose. The court finds that the retained information met that standard when assessed against the overall safeguarding and public-safety risks. (see paras [56], [72]–[78])
Section 35(5) is cited in connection with the appropriate-policy-document requirement. The court holds that the relevant policing policies addressed retention, erasure, risk, proportionality and review sufficiently to meet that requirement. (see paras [71]–[73])
Section 35(5)(c) is cited as part of the appropriate-policy-document framework. The court holds that the MoPI APP, read with the Guidance where appropriate, satisfied the relevant policy requirement. (see paras [56], [71]–[73])
Section 35(8) supplies the statutory concept of sensitive personal data, including data concerning religious or political beliefs, racial or ethnic origin and health. The judgment uses that classification in applying the heightened strict-necessity requirements. (see para [27])
[2021] EWCA Crim 1934 · 17 December 2021Defines
The court applied section 35 to the processing of sensitive personal data. Examination of the mobile telephone was based on law, served a law-enforcement purpose and satisfied the relevant statutory conditions; procedural shortcomings did not materially affect the section 78 assessment. (see paras [21]; [24]-[28]; [41]-[42])
The court treated data concerning sexual orientation as sensitive processing within the Part 3 framework. That classification informed the assessment of the statutory conditions governing police review of the mobile-phone data. (see para [23])
[2021] EWCA Civ 42 · 19 January 2021Interprets
Applied the first data protection principle and the additional requirements governing sensitive processing. (see paras [37], [47], [59], [70])
Required law-enforcement processing to be based on law and consent or necessity for a task carried out by a competent authority. (see paras [47], [68], [107])
Required sensitive processing to satisfy one of the two statutory cases in section 35(4) or section 35(5). (see para [47])
Applied the strict-necessity, Schedule 8 and appropriate-policy-document requirements to the proposed disclosure of a photographic image. (see paras [47], [87], [107])
Defined sensitive processing by listing data concerning specified categories, including health, sex life and sexual orientation. The only relevant data potentially within the definition here was a biometric photograph. (see paras [37], [51], [94])
- Bridges, R (On the Application Of) v South Wales Police[2020] EWCA Civ 1058 · 11 August 2020
- Sharon Elizabeth Brown v The Chief Constable of Hertfordshire Constabulary & Ors[2026] EWHC 1313 (KB) · 10 June 2026
- Cygnet Health Care Limited, R (on the application of) v Care Quality Commission[2025] EWHC 1 (Admin) · 21 January 2025
- O, R (on the application of) v Chief Constable of Kent Police[2024] EWHC 1678 (Admin) · 11 July 2024
- Boris Karpichkov v The National Crime Agency[2023] EWHC 2653 (KB) · 27 October 2023
- Geoffrey Driver v Crown Prosecution Service[2022] EWHC 2500 (KB) · 10 October 2022
- YZ, R (on the application of) v Chief Constable of South Wales Police (Rev 1)[2021] EWHC 1060 (Admin) · 30 April 2021
- II, R (On the Application Of) v Commissioner of Police of the Metropolis[2020] EWHC 2528 (Admin) · 24 September 2020
- Elgizouli, R. (On Application of) v The Secretary of State for the Home Department[2020] EWHC 2516 (Admin) · 22 September 2020
- Bridges, R (On Application of) v The Chief Constable of South Wales Police[2019] EWHC 2341 (Admin) · 4 September 2019
- M, R (on the application of) v The Chief Constable of Sussex Police & Anor[2019] EWHC 975 (Admin) · 15 April 2019
- El Gizouli, R (On the Application Of) v The Secretary of State for the Home Department[2019] EWHC 60 (Admin) · 18 January 2019
- Elgizouli v Secretary of State for the Home Department[2020] UKSC 10 · 25 March 2020
- Shaun Thompson & Anor, R (on the application of) v The Commissioner of Police of the Metropolis[2026] EWHC 915 (Admin) · 21 April 2026
- XGY v The Chief Constable of Sussex Police & Anor[2024] EWHC 1963 (KB) · 29 July 2024
What each judgment says about section 35 is in the case-law panel in the full Act.