R (on the Application of RMC and FJ) v Commissioner of Police of the Metropolis  EHWC 1681 (22 June 2012)
In the recent case of R (on the Application of RMC and FJ) v Commissioner of Police of the Metropolis and Others (RMC and FJ), the High Court of England and Wales held that the indefinite retention of photographs of persons who are arrested, but not subsequently prosecuted, breaches the right to private life protected in article 8 of the European Convention on Human Rights. The case applies and extends the earlier European Court of Human Rights decision of S v United Kingdom (2009) 48 EHRR 50, which concerned the retention of DNA samples and fingerprints.
The two claimants in RMC and FJ were RMC, a middle-aged woman arrested on suspicion of assaulting a police community support officer, and FJ, who had been arrested at age 12 on suspicion of raping his second cousin. Police officers had interviewed each claimant and taken their photographs, fingerprints and DNA samples, but had subsequently decided not to prosecute. RMC and FJ later unsuccessfully sought to have their data destroyed. They also sought judicial review challenging its retention. Judicial review was denied for their fingerprints and DNA samples, but granted for their photographs. FJ was also granted judicial review of the decision to retain information about his arrest on the Police National Computer.
The policies governing the retention of photographs and other personal information are set out in the Guidelines on Management of Police Information (the Guidelines) and the Code of Practice on Management of Police Information (the Code of Practice), which specify that:
- Police are required to hold personal information for a minimum period of six years.
- The information will continue to be held subject to scheduled review for some period after that, as long as its retention is proportionate to a set of broadly defined “policing purposes”.
- The total length of time information will be held for and the frequency of review varies depending on the classification of the crime.
FJ’s crime was placed in the most serious category, and his information was to be held until he was 100 years old, subject to “regular” review. RMC’s crime was classed as less serious than FJ’s, and her information was to be reviewed every ten years. A third category of crimes is to be reviewed every five years. Information would also be reviewed if requested by subjects. Potentially, however, information could be retained indefinitely whatever the category.
Additionally, under section 64A of the Police and Criminal Evidence Act 1984 (UK), information kept by police can be used only for the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or for the enforcement of a sentence.
Lord Justice Richards, with whom Justice Kenneth Parker agreed, held that the retention of the photographs interfered with the right to respect for private life protected in article 8(1) of the Convention, and that this interference was not justified under article 8(2) of the Convention.
The scope of the right to privacy under article 8(1) of the Convention
In relation to article 8(1) of the Convention, while Lord Justice Richards acknowledged that there was a line of ECHR authority stating that the retention and use of photographs by police did not interfere with the right to respect for private life, his Honour considered that these cases needed to be reassessed in light of the decision in S v United Kingdom. His Honour instead extended general principles laid down in more recent authority, including the ECHR case of Reklos v Greece  EMLR 16, and the UK case of R (on the application of GC) v Commissioner of Police of the Metropolis  UKSC 21. In doing so, Lord Justice Richards emphasised that photographs, like fingerprints, could uniquely identify a person. It therefore considered that there was no reason for distinguishing photographs from biometric data such as fingerprints and DNA samples, and concluded that the right to respect for private life had been interfered with.
Notably, Lord Justice Richards also considered that the test applied in older UK case law, which asked whether claimants had a “reasonable expectation of privacy”, was no longer “the only or determinative factor” in determining whether article 8(1) rights had been interfered with. However, his Honour did not expand on this reasoning, noting instead that article 8 would be engaged in this case even on the “reasonable expectation of privacy” test. In support of this position, his Honour referred to JR 27′s Application  NIQB 143, where the High Court of Northern Ireland held that a 14 year old boy arrested for burglary could reasonably expect that the police would not hold photographs of him indefinitely.
Justification of an interference with privacy under article 8(2) of the Convention
Lord Justice Richards further held that the interference with RMC and FJ’s privacy could not be justified under article 8(2). This provision requires that an interference be in accordance with law, and necessary in a democratic society for, among other things, the prevention of disorder or crime. The “in accordance with law” limb requires that the interference be in accordance with laws that satisfy rule of law principles, including accessibility and precision. The “necessary in a democratic society” limb is commonly understood as a proportionality test.
Lord Justice Richards considered that the retention of RMC and FJ’s photographs failed both limbs of article 8(2). His Honour found that the interference was in accordance with a sufficiently precise law, because the Code of Practice and the Guidelines formed a “clear and detailed framework” for retaining photographs under section 64A of the Act. However, his Honour had significant concerns in relation to the accessibility of the law. His Honour pointed out that it was unclear that the Code of Practice and the Guidelines were in fact the applicable policies, and that the retention policy presented a “confused picture” consisting of many different policy documents, not all of them available online. Additionally, his Honour found that the retention policy was disproportionate to the aim of achieving effective policing because it made no distinction between convicted persons, acquitted persons and persons not prosecuted; it was for a long and potentially indefinite period of time; and it was applied even to minors such as FJ.
For these reasons, the Court made a declaration that the retention of FJ and RMC’s photographs was unlawful, and granted the defendant a “reasonable further period” to revise its policy and review the claimants’ documents. However, it dismissed FJ’s claim in relation to records in the Police National Computer, stating that striking out the details of FJ’s arrest would leave a misleading record of FJ’s dealings with the police, and finding that any interference would be small and plainly proportionate.
Article 8 of the Convention is analogous to section 13(a) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), which protects rights to privacy, family, home, and correspondence against unlawful or arbitrary interference. In Victoria, police retention of personal information is also governed by the Information Privacy Act 2000 (Vic), which mandates compliance with a set of Information Privacy Principles. The Court’s findings on the scope of the right to privacy under the Convention may provide useful guidance on when the protection under the Information Privacy Principles may be supplemented by rights-based claims.
It is less certain whether the Court’s analysis of article 8(2) will be directly applicable to the Charter. There is currently split authority in the Victorian Supreme Court over whether or not this “unlawful or arbitrary interference” standard requires a proportionality test such as that used in article 8(2) of the Convention, or whether it merely protects against entirely capricious interferences (compare Patrick’s Case  VSC 327, ; WBM v Chief Commissioner of Police  VSC 219, ). Should the former be the case, RMC and FJ may be relevant in applying the proportionality test to analogous fact situations. However, only a small handful of cases have considered the privacy limb of Charter section 13, and whether the differences in wording between the Convention and the Charter will require differences in the way they are applied remains unclear.
The decision is available online at http://www.bailii.org/ew/cases/EWHC/Admin/2012/1681.html
Suzanne Zhou is a Vacation Clerk at Allens Linklaters.