AB v Chief Constable of British Transport Police  EWHC 2749 (KB)
AB has Autism Spectrum Disorder. Amongst other things, it leads him to rub fabric between his fingers as a coping mechanism. On two occasions, he did so in respect of the clothing of young women on public transport. On each occasion, when this was reported to the police, it was said that he placed his hand between her legs, which AB denied. The police reports for both incidents reflected what the police had been told by the complainants, although subsequently were updated to make clear that AB disputed that the touching was sexual or that he placed his hand between either complainant’s legs.
At first instance in the County Court, the judge made findings of fact about what happened in both incidents, preferring AB’s account although accepting that the incident reports accurately recorded what the police had been told. On that basis, he held that they were inaccurate and a breach of the fourth data protection principle in Part 3 of the Data Protection Act 2018. He held that continued retention of the records was disproportionate and therefore a breach of AB’s Article 8 rights. He awarded £21,000 in basic and aggravated damages given the substantial ongoing distress suffered by AB (plus a further £15,000 for financial losses).
On appeal, Johnson J held that the judge was wrong to consider that the personal data in the incident reports was inaccurate. The first stage was determining what the personal data meant: did it mean that AB had in fact acted in the way described, or that it had been reported to police that he had acted in the way described? Given the nature and purpose of the records, Johnson J held that the second meaning was the right one. Because the judge’s findings were that they accurately recorded what the police had been told, there was no breach of the fourth data protection principle. This is consistent with the recent decision in Bartosik. It should provide some assistance to data controllers in accuracy challenges, who should ensure that there is evidence as to the purpose and context of the records in question which will help with assessing what accuracy requires.
However, the challenge to retention being disproportionate failed. In this case, where there was no evidence of any real risk the public and a very high impact on AB, retention of the incident reports was disproportionate, although Johnson J acknowledged that this was ‘highly fact specific’ and that long retention periods for such information will often be justified (subject to appropriate regular reviews). The £21,000 basic and aggravated damages award was upheld. Although high, this may now represent something of a ceiling for distress damages: it incorporates aggravated damages for the failure to carry out necessary reviews, reflects significant distress to a person particularly susceptible to it, and the distress endured for a sustained period of time. This case is likely to be cited by claimants justifying high estimates of compensation for distress, but those unusual factors are extremely significant.
Anne Studd KC acted for the Chief Constable of British Transport Police.
Judgment: click here
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