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Cite as: [2014] EWHC 4106 (Admin)

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Neutral Citation Number: [2014] EWHC 4106 (Admin)
Case No: CO/455/2014

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
12/12/2014

B e f o r e :

THE HONOURABLE MR JUSTICE DINGEMANS
____________________

Between:
R (on the application of XX)
Claimant
- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE
ASSOCIATION OF CHIEF POLICE OFFICERS
THE SECRETARY OF STATE FOR JUSTICE
Defendant

____________________

Jessica Simor QC (instructed by Irwin Mitchell) for the Claimant
Jonathan Moffett (instructed by The Treasury Solicitor) for the First and Fourth Defendants
Jeremy Johnson QC and Charlotte Ventham (instructed by Legal Services of South Yorkshire Police) for the Second and Third Defendants
Hearing dates: 6 and 7 November 2014

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Dingemans :

    Introduction

  1. These claims raise issues relating to the legality of arrangements made by the police in South Yorkshire for the retention and disclosure of information and data relating to the Claimant, who is a convicted sex offender. Schemes and guidance under which information is held and provision for disclosure is made by the police include: (1) the Child Sex Offender Disclosure Scheme ("the CSOD scheme"); (2) the Guidance on the Management of Police Information. The phrase "Management of Police Information" is often referred to in the evidence as "MoPI"; and (3) MAPPA Guidance. MAPPA means Multi-Agency Public Protection Arrangements. The MAPPA Guidance is issued pursuant to section 325 of the Criminal Justice Act 2003 ("the 2003 Act").
  2. The First Defendant, the Secretary of State for the Home Department, is responsible for having set up the CSOD scheme, which has been adopted by all the Chief Constables in England and Wales. The Secretary of State for the Home Department has also issued a Code of Practice for the Management of Police Information pursuant to statutory powers.
  3. The Claimant is resident in the South Yorkshire police area, and the Second Defendant, the Chief Constable of South Yorkshire ("the Chief Constable") and police officers for whom he is responsible hold relevant data relating to the Claimant.
  4. The Third Defendant, the Association of Chief Police Officers ("ACPO"), was responsible for the MoPI Guidance, which was produced on its behalf by the National Policing Improvement Agency.
  5. The Fourth Defendant, the Secretary of State for Justice, has statutory responsibilities for MAPPA and has issued MAPPA Guidance.
  6. The Claimant

  7. It has been "emphasised on many occasions that cases of this kind turn heavily on their particular facts", see paragraph 5 of R(Catt) v ACPO and others [2013] EWCA Civ 192; [2013] 1 WLR 3305. I therefore set out factual matters relating to the Claimant.
  8. The Claimant has five convictions for indecent assault. The first two of those convictions were assaults on a female aged under 14, and he was sentenced to 2 years concurrent on each count. The relevant circumstances are that in the period leading up to March 1991 the Claimant befriended a mother bringing up three children, including the victim who was aged 8. The assaults had taken place when the Claimant was babysitting the children. The Claimant was released from prison in 1993.
  9. After his release from prison the Claimant offended again. The Claimant appears to have lured young girls to his caravan in Lincolnshire, provided them with drugs and alcohol, and sexually assaulted them. He pleaded guilty to the offences and was sentenced to 4 years imprisonment. The Sheffield Star reported these matters, and the Claimant was assaulted by someone who had read about them. It appears that the person who had assaulted the Claimant received a caution for that offence.
  10. The Claimant has been the subject of MAPPA procedures. In 2009 it was discovered that the Claimant was spending time with a 9 year old child who was not related to him. The mother of the child was not aware of the Claimant's history, although it appears that there were rumours circulating in the community. The Claimant was asked by the police to disclose his history to the mother, but he refused to do so. The police therefore decided to disclose the relevant history so that the child's mother could take steps necessary to ensure the protection of her child.
  11. On 21 January 2014 the Claimant reported to the police that the word "paedo" had been sprayed on his car and house window. The police responded to this, and have made a direction that there should be a "fast response to all calls" from the Claimant.
  12. On 3 February 2014 a person who owned a property in which he was living with his wife and children which was near to the Claimant asked the police to know about the Claimant's record for "peace of mind". It appears that the person had received an anonymous letter about the Claimant, and had no relevant knowledge of the Claimant's history. He also reported that he had found the Claimant to be "polite and courteous". The Claimant did not have any unsupervised contact with that person's children. It was noted that there appeared to be "no outstanding safeguarding issues or concerns in relation to the children therefore no disclosures to any persons are necessary". As a result no disclosures were made about the Claimant to the person who had made the request.
  13. The Claimant made an application to be exempted from the notification requirements imposed under the Sexual Offences Act 2003 which, if it had been successful, would have removed him from MAPPA. On 6 May 2014 the Claimant's application to be removed from MAPPA was refused. It was noted that he had not fully engaged with relevant authorities and was assessed as needing to remain subject to notification requirements. The Claimant did not appeal against this decision.
  14. In circumstances where the Claimant has been reasonably judged to be a person constituting such a risk that he requires to be subject to notification requirements and therefore to MAPPA, his current complaints about the retention of his data by the police are very likely to be academic. It is the academic nature of this part of the Claimant's complaints that has, in my judgment, been responsible for the changing focus of the Claimant's complaints about what is being challenged. This is shown by the fact that the Claimant originally complained about the retention of a list of his convictions, but he no longer maintains that complaint. Further complaint was made on behalf of the Claimant about information retained on the Police National Computer ("PNC"). It then transpired that the information on the PNC was not extensive, and the focus of the complaint shifted to a complaint about the data about the Claimant which must be held elsewhere.
  15. The data held about the Claimant by the police

  16. As a result of changes to the focus of the Claimant's case, no requests for details of the information held by the police about the Claimant have been made. However it is apparent from the materials before me that relevant information held by officers in the South Yorkshire police area includes: his convictions; details of the circumstances giving rise to his convictions; the circumstances giving rise to the disclosure of information about the Claimant in 2009; details of the attack on the Claimant's property in 2014 and the requirement to provide a fast response to the Claimant's calls; and the details relating to the refusal by the police of the request to provide disclosure about the Claimant in 2014.
  17. It might be noted that there are mechanisms available to the Claimant to determine what information is being held about him by the police, see Chief Constable of Humberside Police and others v Information Commissioner [2009] EWCA Civ 1079; [2010] 1 WLR 1136. If it is proposed to challenge the retention of specific items of information it will be necessary for the Claimant to obtain details of the relevant information, and then identify his complaint. However this lack of specificity does not prevent the Claimant from making the general complaints about the lack of legality of the schemes providing for the retention and disclosure of data relating to him that he has made below.
  18. The Claimant's claims

  19. As noted above the focus of the Claimant's claims has changed during the progress of this case, and I am very grateful to Ms Simor QC, Mr Moffett and Mr Johnson QC for the refinement of the issues in their helpful oral and written submissions. The original focus of the Claimant's claims, when issued, was in respect of the retention and disclosure of the details of the Claimant's convictions for various sexual offences ("conviction data"). Indeed by letter dated 13 April 2013 solicitors instructed by the Claimant wrote to the First Defendant challenging the legality of the retention of the Claimant's convictions on the PNC until he reaches the age of 100. The claim was forwarded to the Third Defendant who wrote disputing it.
  20. Further correspondence took place. Proceedings were issued seeking orders quashing: the issuing of guidance to govern the CSOD; the MAPPA Guidance; and the decision to retain data relating to the Claimant's convictions on the PNC. The proceedings were defended.
  21. The Claimant claims that the schemes under which the police retain and disclose his data engage article 8 rights, and that the schemes are either not in accordance with the law because they are arbitrary, or are disproportionate and therefore cannot be justified for the same reason.
  22. It is also said that amendments made to the CSOD scheme following the judgment of the Divisional Court in R(X) v Secretary of State for the Home Department [2012] EWHC 2954 (Admin); [2013] 1 WLR 2638 have failed to give full effect to the judgment, and that the requirements of that judgment also apply to the MAPPA Guidance. In R(X) the Claimant had brought earlier proceedings in the Divisional Court. The Divisional Court had identified a duty on the police to seek representations from sex offenders before making disclosures under the CSOD scheme. The CSOD scheme has been amended but the adequacy of the amendments is in dispute. Amendments have now been proposed to the MAPPA Guidance and there is a dispute about part of the wording of those proposed amendments.
  23. The Claimant's claims are denied by the Secretary of State for the Home Department and the Secretary of State for Justice, as well as by the Chief Constable of South Yorkshire Police, and the ACPO. They contend that the combined provisions of the Data Protection Act, the Human Rights Act, the MAPPA Guidance, the MoPI Guidance and the CSOD scheme provide a proper basis for the Claimant's protection in relation to data which has been retained about him, and that the Guidance and schemes are lawful.
  24. Anonymity

  25. An order providing for the anonymity of the Claimant was made by the Divisional Court in R(X). I have been told that an order providing for the anonymity of the Claimant was made at the commencement of these proceedings by Cox J. Anonymity orders represent a derogation from the principle of open justice and it is not always appropriate to make such an order in a case involving convicted sex offenders, see R(SF) v The Secretary of State for Justice v Times Newspapers and others [2013] EWCA Civ 1275. However, in my judgment it is right to continue the anonymity order made by Cox J. This is because: the Claimant has been threatened in the past; the Claimant was provided with the benefit of anonymity by the Divisional Court; and there has been no material change of circumstances since then.
  26. I will therefore continue the order made by Cox J., but I will make provision for anyone to apply to discharge or vary this order on giving written notice to the Claimant's solicitors, who are identified above.
  27. Some relevant statutory provisions and schemes providing for the retention and disclosure of data by the police

    Human Rights Act

  28. The Human Rights Act gave domestic effect to the European Convention on Human Rights ("ECHR"). Article 8 of the ECHR provides that "(1) Everyone has the right to respect for his private life (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and necessary in a democratic society in the interests of national security [or] public safety for the prevention of disorder or crime or for the protection of the rights and freedoms of others."
  29. Data Protection Act

  30. The Data Protection Act makes provision for the regulation of the processing of information relating to individuals, and it applies to data held by the police. In the Data Protection Act personal data is defined by section 1(1) as meaning data which relates to a living individual who can be identified from the data, or from the data and other information in the possession of, or likely to come into the possession of, the data controller. Certain data is classified as sensitive. A wide definition is given to the meaning of processing. Data controllers who process data must comply with the data protection principles. Provision is made for a right of access to data (section 7 of the Data Protection Act). Section 10 provides that requests to delete data may be made. Compensation may be awarded for infringement of the data protection principles (section 13 of the Data Protection Act). Provision is made in the Act for disputes about the retention of data to be determined by a Commissioner, and for appeals to Tribunals. There was an extensive consideration of the Data Protection Act and police purposes in Chief Constable of Humberside Police and others.
  31. There are some exemptions for the processing of data for police purposes set out in the Schedules to the Data Protection Act. However it would be necessary to have details of the data which was being held in order to make an assessment about whether any of the exemptions applied.
  32. The 2003 Act and MAPPA Guidance

  33. MAPPA was established by the Criminal Justice and Courts Services Act 2000 and the relevant provisions were re-enacted with amendments by the 2003 Act. The 2003 Act at section 325 provides that the responsible authority, which includes the chief officer of police, the Minister of the Crown and others, must establish arrangements for the purpose of assessing and managing risks posed in that area by relevant sexual and violent offenders. The Claimant is such a relevant sexual and violent offender. This is the statutory basis for MAPPA schemes. Provision is made by section 325(8) for the making of MAPPA Guidance.
  34. Section 327A of the 2003 Act provides that the responsible authority for each area must, in the course of discharging its functions under arrangements established under section 325 consider whether to disclose information in its possession about the relevant previous convictions of any child sex offender managed by it to any particular member of the public. There is a presumption that disclosure should be made where there is a risk of the child sex offender causing serious harm to children and where disclosure of information is necessary for the purpose of protecting those children (sections 327A (2) and (3)(a) and (b)).
  35. The current version of the MAPPA Guidance is MAPPA Guidance 2012 Version 4. This provides for the management of offenders at levels commensurate with the risk of harm that they present. The Claimant is currently subject to the lowest level of management.
  36. Section 10 of the MAPPA Guidance provides for the disclosure of information about offenders. Disclosure must "comply with the law, must be necessary for public protection, and must be proportionate" (paragraph 10.11 of the MAPPA Guidance).
  37. Amendments have been proposed to the MAPPA Guidance to provide for the making of representations from persons in the Claimant's position before disclosure is made. These amendments have been set out in the Skeleton Argument on behalf of the Secretary of State for the Home Department and the Secretary of State for Justice.
  38. The Claimant welcomes the majority of the amendments but complains that one particular part of the amended MAPPA Guidance is objectionable. It is that part which permits representations not to be made by the sex offender before disclosure if there is a concern about grievance thinking. The relevant provision is: "Seeking representations should be the norm, but there might be occasions when it is not possible or safe to seek representations. Circumstances where it is possible that representations would not be sought might include, but will not be limited to, those where seeking representations would risk reinforcing grievance thinking on the part of the offender in a way that would increase the risk presented by the offender generally".
  39. Offender management includes carrying out risk assessments, reviews and home visits (sections 11 and 12 of the MAPPA Guidance).
  40. The Police Act, Codes and Guidance on MoPI

  41. Section 39A of the Police Act 1996 provides that the Secretary of State for the Home Department may issue codes of practice relating to the discharge of their functions by the chief officers of police for police areas. The Codes are required to be laid before Parliament.
  42. In July 2005 the Secretary of State for the Home Department issued a Code of Practice on the Management of Police Information ("the MoPI Code"). It appears from the Preface to Guidance issued under the MoPI Code that the murders of Holly Wells and Jessica Chapman and the subsequent inquiry by Sir Michael Bichard "had a profound and far-reaching effect on the way the police service gathers, manages, uses and shares information". The MoPI Code was issued as a result of the Bichard Inquiry. The Guidance issued under the MoPI Code remained consistent with previous Guidance issued under a statutory code of practice under the Police Act 1996.
  43. The MoPI Code had been prepared by the National Centre for Policing Excellence. The MoPI Code set out principles governing the management of information including: procedures to be applied in obtaining and recording the information; procedures to ensure the accuracy of information; procedures for reviewing the need to retain information, and where necessary, to destroy it; procedures governing the sharing of information; and measures to maintain procedures for the management of information so as to facilitate information sharing (paragraph 1.1.5 of the MoPI Code). The MoPI Code recognised that there was an existing legal framework for the management of information in legislation relating to data protection, human rights and freedom of information (paragraph 1.2.4 of the MoPI Code). Provision was made for HM Inspectors of Constabulary to monitor police forces' compliance with the Code (paragraph 1.3.1 of the MoPI Code). For the purposes of the MoPI Code police purposes were: protecting life and property; preserving order; preventing the commission of offences; bringing offenders to justice; and duties or responsibilities of the police arising from common law or statute (paragraph 2.2.2 of the MoPI Code).
  44. Provision was made for national guidance on the management of police information which would ensure consistent procedures throughout the police service for obtaining, recording, storing, reviewing, deleting and sharing information (paragraph 3.1.1(b) of the MoPI Code). Provision was made for information originally recorded for police purposes to be reviewed at intervals to be prescribed in guidance under the Code (paragraph 4.5 of the MoPI Code).
  45. In 2010 the National Policing Improvement Agency ("NPIA") produced, on behalf of ACPO, a second edition of Guidance on the Management of Police Information ("the 2010 MoPI Guidance"). This was the version of MoPI Guidance on which submissions were made by both parties at the hearing before me.
  46. However in a note lodged on behalf of all the Defendants dated 14 November 2014 after the conclusion of the hearing, reference was made to the fact that the Guidance was produced in a different form in October 2013 by the College of Policing on behalf of ACPO ("the 2013 MoPI Guidance"). I was directed to an internet site on which the 2013 MoPI Guidance was displayed, although that showed the 2013 MoPI Guidance had last been modified on 24 October 2014.
  47. The Defendants identified that the 2010 MoPI Guidance and the 2013 MoPI Guidance were substantially the same, but that an exemption for PNC data contained in paragraph 7.1 of the 2010 MoPI Guidance was not included in the 2013 MoPI Guidance. It was said that this was a mistake and that the position would be rectified. The Claimant did not identify any further relevant differences, but made the point in an email dated 25 November 2014 that it was concerning that the Defendant had referred to the 2010 MoPI Guidance and not the 2013 MoPI Guidance.
  48. The 2010 MoPI Guidance dealt with the review and retention of information at Chapter 7. It was noted that information retained on the PNC would be dealt with in accordance with the PNC Retention Guidelines ("the PNC Retention Guidelines").
  49. Subsection 7.4 of the 2010 MoPI Guidance set out the framework for decision making on the retention of police information. It was stated that a key point was that the infringement of an individual's privacy created by retention of their personal information must satisfy the proportionality test. All records were to be held for a minimum of 6 years, following which there was a requirement to review whether it was still necessary to keep the record for a policing purpose. Records might only be retained for as long as they were necessary.
  50. Checklist 4 in Chapter 7 identified a number of risk factors which could be used to assess whether an individual posed a risk of harm, and whether information should continue to be retained for a policing purpose. These included asking questions whether there was evidence of a capacity to inflict serious harm, whether there were concerns in relation to children or vulnerable adults and whether the behaviour involved a breach of trust.
  51. Historical data was defined as anything recorded prior to 1 April 2006 which should be reviewed when the subject of those records came to police attention (paragraph 7.5 of the 2010 MoPI Guidance). A key point to consider in relation to the review of police information was that there was a presumption in favour of the retention of police information provided that it was not excessive, was necessary for a policing purpose and was up to date. If an individual was believed to pose a high risk of harm information about them would be retained for a further period specified in the review schedule (paragraph 7.6 of the 2010 MoPI Guidance). It was also noted that any records of personal or sensitive data should comply with the principles set out in the Data Protection Act. Reviews were also triggered by statutory disclosure, requests for information made by other law enforcement agencies, and subject access requests. There was a review schedule in appendix 4 (paragraph 7.6.2 of the 2013 MoPI Guidance).
  52. It was noted that information relating to all offenders who have ever been managed under MAPPA, as has the Claimant in this case, was classed as "certain public protection matters". This meant that data should only be disposed of if it was entirely inaccurate or was no longer necessary for policing purposes (paragraph 7.6.3 of the 2010 MoPI Guidance). Provision was made for information relating to certain public protection matters to be retained until the subject was 100 years of age, although the information was required to be reviewed every 10 years so that it was adequate and up to date. Provision was made for information not to be retained if it was wholly inaccurate (for example a person arrested on suspicion of murder where death was proved to have been by natural causes) (paragraph 7.6.3 of the 2010 MoPI Guidance).
  53. The CSOD scheme

  54. It appears from the introduction to the CSOD scheme Guidance document ("CSOD scheme guidance") that in June 2006 the Secretary of State for the Home Department commissioned a review of child sex offender and arrangements for protecting the public. It was decided to strengthen MAPPA, and to introduce a pilot scheme in relation to the disclosure of information relating to sex offenders. The scheme was piloted in 4 police areas from September 2008 until September 2009. That showed that there were a manageable number of inquiries (12 inquiries, 7 applications, and 1 disclosure on average in each police area each month). Reports indicated that police officers considered that the disclosure scheme had tightened up procedures and given clarity about what the public could expect. Reports indicated that offenders were worried about negative reactions at the start, but by the end of the pilots considered that this was an extension of existing schemes.
  55. The CSOD scheme was introduced. It was noted that it was not the aim of the scheme to introduce a US-style Megan's law or automatic disclosure of child sexual offender details to the public, which could encourage offenders to go missing and put children at greater risk of harm (paragraph 2.1 of the CSOD scheme guidance). The CSOD scheme did not change safeguarding children and MAPPA procedures (paragraph 3.5 of the CSOD scheme guidance), and did not replace existing arrangements for Criminal Records Bureau checks, Subject Access or Freedom of Information requests, and Vetting and Barring schemes managed by the Independent Safeguarding Authority (paragraph 3.7 of the CSOD scheme guidance).
  56. It was recorded that disclosure must still be lawful, and there must be power to disclose the information which must comply with the Human Rights Act and the Data Protection Act (paragraph 3.5 of the CSOD scheme guidance).
  57. The process by which disclosure was to be made was described at paragraph 5 and appendix A of the CSOD scheme guidance. There were provisions referring to "decision making on disclosure". Applications might raise "concerns" or "no concerns". If no concerns were raised then there would be no disclosure. If concerns were raised it was recorded (at paragraph 5.5.4 of the CSOD scheme) that "the police must consider if representations should be sought from the subject to ensure that the police have all necessary information to make a decision in relation to disclosure".
  58. It was noted that the forum in which disclosure decisions should be made should be a multi-agency one. This would be a MAPPA meeting for those who were subject to MAPPA. For those not meeting MAPPA criteria the decision would ordinarily be made by safeguarding children procedures (paragraph 5.6.13 of the CSOD scheme guidance). Any disclosure needed to satisfy the threefold test namely (i) that there was power to disclose the information; (ii) that there was a pressing need to make disclosure; and (iii) interfering with article 8 rights was necessary and proportionate for the prevention of crime. It was expressly noted that "there is a general presumption that details about a person's previous convictions are confidential" (paragraph 5.6.15 of the CSOD scheme). It was also noted that information about a person's previous convictions was sensitive personal data under the Data Protection Act and that the police must be satisfied that disclosure was in accordance with the eight data protection principles. Guidance on how to apply the principles was set out in appendix H (paragraph 5.6.16 and appendix H of the CSOD scheme).
  59. It was noted that before disclosure was made consideration should be given to whether it is necessary to inform the subject of the disclosure that it was taking place, and stated "the MAPPA meeting/safeguarding strategy meeting/discussion or case conference should make a decision on this when deciding whether disclosure should occur (see below section on informing the subject that a disclosure has taken place (5.6.23-5.6.28)". Paragraphs 5.6.23-5.6.28 make provision for obtaining undertakings about confidentiality from those to whom disclosure is provided (paragraphs 5.6.19 and 5.6.23-5.6.28 of the CSOD scheme guidance).
  60. The Stages 1-4 Decision Outcome set out in Appendix A showed a box beginning "Contact with applicant/carer POSSIBLE DISCLOSURE A disclosure may take place if lawful, necessary and proportionate (see guidance paragraph 5.6.14) ". Paragraph 5.6.14 refers to paragraph 5.6.15 which refers to considering whether further information should be sought from the subject and refers to paragraph 5.5.4 which expressly refers to considering whether representations should be sought in relation to disclosure.
  61. Article 8 is engaged

  62. It became common ground at the hearing that the retention by the police of certain data relating to the Claimant which might in certain circumstances be disclosed engaged article 8 of the ECHR. There is clear authority for the proposition that the systematic collection, ordering and possible disclosure of certain data relating to a person engages article 8 of the ECHR, and I accept that article 8 is engaged.
  63. There was a dispute between the parties about whether the Claimant's record of convictions, which have been publicly recorded following events in open Court and which have not become spent for the purposes of the Rehabilitation of Offenders Act 1974, can engage article 8 of the ECHR. The Defendants submitted that Lord Wilson, at paragraph 18 of R(T) v Chief Constable of Greater Manchester Police and others [2014] UKSC 35; [2014] 3 WLR 96, had accepted that article 8 would not be engaged where a conviction was not spent, and that that proposition had been agreed by Lord Neuberger, Baroness Hale and Lord Clarke. The Claimant submitted that Lord Wilson's dicta had not been agreed by the other Supreme Court Justices, and that because some convictions, including the Claimant's convictions, would never become spent there must be a point when it could be shown that a record of a public conviction had so receded into history that article 8 was engaged, even before the conviction was spent.
  64. It is not necessary for me to decide this point. This is because it is common ground that, whether the convictions engage article 8, other data held by the police about the Claimant engages article 8. It is therefore necessary to consider whether the system for collection, ordering and possible disclosure of data is legal and justifiable under article 8.
  65. The schemes are in accordance with the law

  66. Once article 8 is engaged the Defendants must show that any interference with article 8 is "in accordance with the law", and, if it is in accordance with the law, is justifiable in the sense of being "necessary in a democratic society in the interests of public safety for the prevention of disorder or crime or for the protection of the rights and freedoms of others". The Claimant submits that any interference with the Claimant's article 8 rights in this case is not "in accordance with the law", on the basis that the statutory and other schemes for the retention of data are arbitrary and disproportionate because they provide inadequate guarantees against arbitrariness. The Claimant points out that some of the schemes are not statutory, and that the continued retention and disposal of data is only governed by Guidance.
  67. In my judgment the statutory and other schemes for the collection, ordering and possible disclosure of data by the police are not arbitrary and they do provide adequate guarantees against arbitrariness and they are "in accordance with the law". This is because there is a comprehensive scheme providing for the retention of data by the police. The police purposes for which the data is retained have been clearly identified, see Chief Constable of Humberside Police and others at paragraphs 34 to 38 and paragraph 2.2.2 of the MoPI Code. The storage of data by the police is controlled by the provisions of the Data Protection Act. The Data Protection Act provides important safeguards for persons whose data is being processed, and remedies if there is unjustifiable processing of data. The MAPPA Guidance, the 2013 MoPI Guidance and the CSOD scheme are public standards which can be applied to the management of data held by the police, and those standards make express reference to the Data Protection Act and the Human Rights Act.
  68. The publication of these standards avoids the risk of arbitrariness and in particular the risk of "interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality", see paragraph 34 of R(Gillan) v Commissioner of Police of the Metropolis [2006] 2 AC 307.
  69. Ms Simor referred to the judgment of the European Court of Human Rights in MM v United Kingdom (24029/07) dated 13 November 2012 in support of a submission that because the CSOD scheme and MoPI Guidance were common law schemes, they were not in accordance with the law, noting that in MM reference had been made to the MoPI Guidance. In MM the European Court of Human Rights concluded that the disclosure of a caution interfered with article 8 of the ECHR because systematic storing of records meant that they were available for disclosure long after everyone was likely to have forgotten about them, see paragraph 188. Ms Simor noted that the European Court of Human Rights had referred to an earlier version of the 2013 Guidance and made comments to the effect that "the indiscriminate and open-ended collection of criminal record data is unlikely to comply with the requirements of article 8 in the absence of clear and detailed statutory regulations clarifying the safeguards applicable and setting out the rules " (emphasis added). It was on the basis of this, and another similar passage in paragraph 206, that Ms Simor submitted that the non-statutory schemes were unlawful.
  70. In my judgment the statements of the European Court of Human Rights in MM on which Ms Simor relied were not statements of general principle which might be taken into account by this Court under the provisions of the Human Rights Act. The statements in MM were statements made on the facts of the particular case of MM. The European Court of Human Rights has never held that the police are restricted to exercising statutory powers if they are to show that they are acting in accordance with the law. The common law provides a sufficiently certain source of powers in this case. Reports showed that there had been an increased consistency of practice following the production of the CSOD scheme, see paragraph 45 above.
  71. Ms Simor also submitted that the 2010 MoPI Guidance, which was equivalent to the 2013 MoPI Guidance, had been found to be inadequate in MM and that I should therefore declare that the 2013 MoPI Guidance was not "in accordance with the law". I do not agree. This is because the decision in MM was based on a number of factors specifically relating to caution data in that case. MM is not authority for the proposition that the MoPI Guidance relating to data concerning the Claimant is not "in accordance with the law", that is a decision for the national Courts.
  72. The CSOD scheme, the 2013 MoPI Guidance and the MAPPA Guidance are all public standards which can be applied to the management of the Claimant's data held by the police, and those standards make express reference to the Data Protection Act and the Human Rights Act. Provision is made for HM Inspector of Constabulary to monitor compliance with the MoPI Code, see paragraph 35 above. If the Claimant has any complaints about the storage of his data he can obtain information about which data is held, and bring proceedings seeking the deletion of that data if the retention of the data is unlawful. The fact that such proceedings can be brought is, in my judgment, a relevant factor to show why the generalised complaint in this case about the collection, ordering and possible disclosure of the Claimant's data under relevant Guidance not being "in accordance with the law" is unsustainable.
  73. I also rely on the fact that in R(X) the Divisional Court did not find that the CSOD scheme was not "in accordance with the law", and at paragraph 47 of the judgment in R(X) such a complaint was rejected.
  74. Justifiable interference with the Claimant's article 8 rights

  75. The Claimant's alternative case was that if the MAPPA and 2013 MoPI Guidance and the CSOD scheme were "in accordance with the law", they permitted an interference with the Claimant's article 8 rights which was not justifiable. It is apparent from paragraph 22 of R(Catt) that complaints such as these need to be considered in the context of individual cases.
  76. In my judgment the collection, ordering and possible disclosure of data is in the pursuit of a legitimate aim, namely the interests of public safety, the prevention of crime and the protection of rights and freedoms of others. It is apparent that the police are retaining data relating to the Claimant for police purposes and that there is a legitimate aim being pursued by the Guidance about which complaint is made.
  77. Further the collection, ordering and possible disclosure of data is proportionate and justifiable. In this case there remain very good reasons for the police to have the data about the Claimant identified in paragraph 14 above. The retention of the data will assist the police in managing the risk posed by the Claimant in the community. The retention of the data will assist the police in protecting the Claimant from unjustified attack. The evidence demonstrates that, so far as the Claimant is concerned, there has been a careful consideration about whether disclosure of information about him should be given to others, and on one occasion disclosure was made, and in a more recent case there was no disclosure. The evidence shows that it was decided in May 2014 that the Claimant still required to be the subject of notification requirements and therefore the subject of MAPPA. The Claimant did not challenge that decision, and it was, from the material before me, properly made. The data which is held by the police about the Claimant needs to be held to enable the police to act in accordance with police purposes. Any interference with article 8 rights is therefore justifiable for the purposes of article 8(2) of the ECHR.
  78. I did have some sympathy with the Claimant's complaints about that part of the Guidance which suggested that information relating to the Claimant should be retained for 100 years, although I do note that there was provision for review and a requirement to assess whether retention could be justified. However if there comes a time when complaints about the length of time that data is being retained about the Claimant is anything other than academic, then the complaint can be considered at that time. Given the number of challenges to the Guidance which are being made, and the number of revisions to the Guidance which have been carried out and are likely to be carried out, it is very likely that any such challenge will be under a different version of the relevant Guidance, and there is nothing to justify my entertainment of an academic challenge at this stage where the current retention of the Claimant's data is justified.
  79. I should also record that, although it became common ground at the hearing, I agree that the police are entitled to retain the Claimant's conviction data. The reason for holding such information was identified in Chief Constable of Humberside v Information Commissioner [2009] EWCA Civ 1079; [2010] 1 WLR 1136 at paragraph 106. Hughes LJ noted the practical reasons for retaining a comprehensive record of convictions, and by "comprehensive" he meant "a complete record of all significant convictions, cautions and reprimands, together with associated information". It might be noted that this "associated data" is very much the type of information which it appears must be held about the Claimant. This associated information is required so that the Court can make fair decisions, for example, about whether the Claimant's convictions should be disclosed in any proceedings in which he is a Defendant or witness. Hughes LJ noted in Chief Constable of Humberside and others that such information would be required for the purposes of bad character applications, sentencing, and the credit of witnesses in the Courts, quite apart from other uses.
  80. I also reject the Claimant's complaint that there was no need for the CSOD scheme, because it duplicated the MAPPA scheme. This is not correct. There will be occasions where disclosure might be made in respect of persons who are not the subject of MAPPA, see paragraph 49 above. It is right that the Claimant remains, at present, subject to MAPPA, but the CSOD scheme appears to be designed to work with MAPPA, where MAPPA applies. This appears from paragraph 5.6.13 of the CSOD scheme guidance. The Divisional Court in R(X) specifically noted, at paragraph 29, that the CSOD scheme was wider than MAPPA but did not quash the CSOD scheme on this basis.
  81. I reject the Claimant's complaint that because the CSOD scheme is optional this affects whether the scheme is arbitrary and disproportionate because it might not be adopted by police forces. In this case the CSOD scheme has been adopted, and the evidence showed that it had been adopted in all relevant police areas.
  82. Proper implementation of Divisional Court judgment

  83. The Claimant complains that the CSOD scheme has not been revised to give proper effect to the judgment of the Divisional Court in R(X) and submits that the MAPPA Guidance also does not reflect that judgment.
  84. The relevant part of the judgment in R(X) provided at paragraph 36 that "in our view, it is clear that there will be some circumstances in which there is a duty to seek representations from the offender ", noting at paragraph 41 "whilst each case will turn on its own facts, it is difficult to foresee cases where it would be inappropriate to seek representations, unless there was an emergency or seeking representations might well itself put the child at risk". A declaration was made to give effect to paragraph 41 of the judgment.
  85. The CSOD scheme now provides that the police should consider whether representations should be sought, as appears from paragraph 5.5.4 of the CSOD scheme set out in paragraph 48 above. The information before me showed that this appeared to reflect the terms of the declaration made by the Court. Ms Simor says that the Guidance is not in the terms of paragraph 41 of the judgment of R(X). That is correct, but it appears to be in the terms of the declaration and it provides that the police "must consider if representations should be made". It is common ground that any such consideration is likely to lead to the conclusion that representations should be made. I have no doubt that the wording of the CSOD scheme might be improved, including the way in which reference is made back to paragraph 5.5.4, see paragraph 51 above, but that does not make the CSOD scheme unlawful.
  86. In my judgment the amended wording of the MAPPA Guidance is not unlawful. The amended Guidance makes it plain that consideration should be given to obtaining representations, and that there might be circumstances when representations are not obtained. It is noted that "it is possible" that representations might not be sought "where seeking representations would risk reinforcing grievance thinking in a way that would increase the risk presented by the offender ". In my judgment that is a possible basis on which representations might not be sought. I do not consider it to be a very likely basis, and also consider that in such circumstances there would be a need to justify determining that there was such a risk, but that is a long way from saying that the amended MAPPA Guidance is unlawful.
  87. Conclusion

  88. For the detailed reasons given above I dismiss the Claimant's claims. The statutory and other schemes for the retention and possible disclosure of the Claimant's data are in accordance with the law. Any interference with the Claimant's article 8 rights is justifiable. The amendments made to the CSOD scheme and the amendments to be made to the MAPPA Guidance are in accordance with the judgment in R(X).


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