The Data Brief

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

It can be strictly necessary for the police to retain non-conviction data, even after an acquittal

5 May 2021

R (on the application of YZ) v The Chief Constable of South Wales Police [2021] EWHC 1060 (Admin)

In 2016 the Claimant was acquitted by a jury of three counts of raping his former wife whilst they were married. In 2018 the Claimant asked for the deletion of all his personal data held on the Police National Computer (“PNC”).

The National Police Chief’s Council (“NPCC”) produces guidance on record retention. It provides that PNC records must be retained until a person is deemed to have reached 100 years of age, subject to the discretion of the relevant Chief Officer as to whether there are exceptional circumstances.

A police officer reviewed the application and decided that the data should be retained. He recorded inter alia that the Claimant “was charged to court and found not guilty however there is no evidence to suggest that the case was based on a malicious or false allegation. Therefore, South Wales Police do not agree that the grounds of “unlawfully taken’ and ‘no crime’ are met.”

The Claimant did not say that the guidance was inconsistent with the Data Protection Act 2018, but that the 2018 Act had “supremacy”, and that it was for the police to justify retention of data. HHJ Jarman QC (sitting as a Deputy High Court Judge) accepted this was the correct approach.

In this case police had complied with the 2018 Act. The officer did not approach his decision on the basis that it was for the Claimant to show that his record should be deleted, but instead had regard to all the circumstances, including the evidence from the criminal trial, to establish whether there was evidence that the allegations were malicious. He decided that there was not.

The Court held that the processing of all of the information on the Claimant’s PNC record was strictly necessary for law enforcement, for the safeguarding of the child of the relationship and/or his former wife, and the NPCC guidance amounted to a “policy” for the purposes of s35(4)(b) of the 2018 Act. The decision to retain the data was rational and fair. Moreover, the 100-year rule was justified on the facts of this case, because it could not be said that the risk posed by the Claimant would diminish to the point of insignificance in the Claimant’s lifetime.

5 Essex Chambers Amy Clarke successfully acted for the Chief Constable.

Further reading

R (YZ) v Chief Constable of South Wales Police

The Data Brief

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

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