The Data Brief

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

Retention of inaccurate witness evidence

31 August 2022

Bartosik v Chief Constable of the Police Service of Scotland [2022] CSOH 55

The Outer House of the Court of Session considered requests for erasure in the context of Law Enforcement processing, under Part 3 of the Data Protection Act 2018. The petitioner, a taxi driver, had given a written document to the police in which he made eight separate allegations against eight individuals who had at various times made off without paying him for journeys in his taxi. The police did not follow up on the allegations and the taxi driver made a complaint. As part of the internal investigation, the police staff member who had been working at the front counter made a statement summarising her involvement in events. In that statement, she described seeing and hearing the taxi driver outside the police station, before he made the complaint, and saying that he made certain comments about his partner and custody of his child. The taxi driver later got sight of this staff member’s statement and, saying that the contents were inaccurate, asked for the data to be deleted.

The staff member did accept, as matters progressed, that she appeared to have made a mistake and mixed up two people: the person whom she heard talking about custody of his child was not the taxi driver.  

The Court considered the distinction which is drawn in the Fourth Data Protection Principle in s38(2): “personal data based on facts must, so far as possible, be distinguished from personal data based on personal assessments.” The Court reminded itself of the explanatory notes for that section, which highlight that a witness statement “will be based on the subjective perceptions of the person making the statements” and accordingly the requirement for accuracy does not apply for a witness statement but rather to the fact that a specific statement has been made. Lord Clark went on to call this “a rather obvious point” that “the police should not erase or rectify the content of inaccurate witness statements used for law enforcement purposes”.

For that primary reason, the Court did not order that the data should be deleted or rectified. Moreover, the Court held that even if it was wrong on that point, retention of the data was lawful insofar as that retention was restricted only to be for the purpose of re-examining the complaint in light of the staff member’s change in recollection.

Further reading:


Explanatory notes

ICO Guide to Law Enforcement Processing

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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