The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

The Home Office Counting Rules: a cautionary tale

25 July 2024

“It was at this point that, from the Claimant’s point of view, things took a turn for the worse”. So said Knowles J in R (on the application of O) v Chief Constable of Kent Police [2024] EWHC 1678 (Admin).

One might be forgiven for thinking that what had happened so far had already been, from the Claimant’s perspective, quite bad enough. He had been arrested on suspicion of sexual assault following a remark made by his 5-year-old son, X, at school, that he, X, became angry when his father, touched his ‘pee pee’ at night. When interviewed the Claimant explained that he had been helping his son with toilet training, including by teaching him how to urinate standing up. Having interviewed X and the Claimant’s wife, the officers were satisfied that the Claimant’s account was reliable and that no sexual assault had taken place. He was allowed back home.

However, unbeknownst to the Claimant until litigation was afoot, the Crime Record on Kent Police’s systems included an entry, which recorded — inaccurately — that X had reported that “he [the Claimant] makes him [X] angry when he smacks his bum”.

Having been told that the police were satisfied that no crime had occurred, the Claimant then asked that the records be deleted. After a somewhat unsatisfactory process whereby the Claimant had to appeal an initial refusal, ACRO agreed to delete the records on the national police information systems — i.e. PNC arrest record and custody image. ACRO told the Claimant that the Crime Report would remain on Kent Police’s local systems. Meanwhile, without informing the Claimant that he was doing so, DI Davies of Kent Police reviewed the Crime Report to consider whether it would be ‘cancelled’ and decided that it should be, in accordance with the Home Office Counting Rules (HOCR), as there was ‘AVI’ — ‘additional verifiable information’ — that led to the conclusion that no offence had occurred.

This is when things took a turn for the worse. Ms O’Keefe, a Kent Police employee who ensures compliance with the HOCR decided instead to reclassify the crime report as ‘common assault’.  She read the entry on the Crime Report about smacking and mistakenly thought it said that X had said that his father smacked X when his father was angry. She therefore decided that the Crime Report should not be cancelled, but should be reclassified as an offence of common assault. The effect of this decision was that from then on Kent police would have, recorded against his name, for at least 10 years, a report saying that he assaulted his young son in anger. And that information could be disclosed to employers on an Enhanced Criminal Record Certificate.

It took some convoluted judicial review proceedings to untangle all of this. Knowles J held that the way in which Ms O’Keefe had decided to reclassify the Crime Report as one of common assault was unfair to the Claimant and therefore unlawful at common law. He observed in coming to this conclusion that ‘fairness’ is always context-dependent and that there were a number of features of this case which pointed to the conclusion that it was unfair, including, most notably, that C had not even been aware of the allegation, let alone had it put to him.

From here it was a simple matter for the judge to conclude that Kent Police’s decision was also a violation of Article 8 because the collection and storage of data in police systems is an interference with private life and in this case it was not ‘in accordance with the law’ as required by Article 8 ECHR.

The judge found that a number of the data protection principles set out in Part III of the DPA 2018 had been breached, including the principles of lawfulness, fairness and accuracy.

The police had argued that there were alternative remedies to judicial review, namely a complaint to the Information Commissioner or the Court under s.51 or s.167 of the DPA 2018 and so the Administrative Court should exercise its discretion to not exercise its jurisdiction.

Knowles J was not persuaded that the statutory provisions in ss.51 and 167 of the DPA 2018 represented adequate alternative remedies to judicial review, given that C’s principal complaints were more extensive and related to public law errors. Moreover, even if the s.167 route were a better route the Administrative Court can exercise that jurisdiction — which is what he did — making an order pursuant to s.167 DPA 2018 that the reference to common assault be deleted in its entirety from the Crime Report.

The case is a cautionary tale showing how tricky the HOCR can be, which when combined with the retention periods in the Guidance on the Management of Police Information can have a powerful impact on individuals.

Further reading: R (O) v Chief Constable of Kent Police [2024] EWHC 1678 (Admin)

The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.

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