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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> AB v Chief Constable of British Transport Police [2022] EWHC 2749 (KB) (07 November 2022) URL: https://www.bailii.org/ew/cases/EWHC/KB/2022/2749.html Cite as: [2022] EWHC 2749 (KB) |
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KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
ON APPEAL FROM THE COUNTY COURT (MANCHESTER)
HIS HONOUR JUDGE SEPHTON KC
Strand, London, WC2A 2LL |
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B e f o r e :
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AB | Respondent |
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- and - |
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CHIEF CONSTABLE OF BRITISH TRANSPORT POLICE | Appellant |
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Louis Browne KC and Mark Ainsworth (instructed by MSB Solicitors) for the Respondent
Hearing date: 7 October 2022
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Crown Copyright ©
Mr Justice Johnson:
(1) It is inaccurate, and retention is therefore in breach of data protection legislation.
(2) It is a disproportionate (and therefore unlawful) interference with his right to respect for private life under article 8 of the European Convention on Human Rights ("ECHR").
(1) to find that the police records are inaccurate,
(2) to find that that the retention of the records is a disproportionate interference with AB's article 8 rights,
(3) to award damages of £15,000 for distress, £15,000 for loss of earnings, and £6,000 for aggravated damages.
Factual background
The 2011 incident
"BRC Person Reporting: — BRC Offence: sexual assault on female over 13 years. CAFI BRC MO: female adult victim boarded at Bristol. Sat next to male suspect. He had his jacket on his lap which brushed against her left leg. Jacket moves up. His hand goes between her legs under her dress. She asks him to move. She then got up and found guard to inform him. She then sat in foyer area while guard reported it. Police waiting for train in Newport. Victim was then able to identify male suspect to officer."
"Following a review of all available evidence it is appropriate to update the MO in this record. The suspect sat next to the victim aboard a train. After a short while the victim noticed her dress hem moving up her thigh. The suspect had his left arm across his abdomen which disappeared inside the right hand side of his jacket. His jacket obscured where his hand actually was. Victim felt the top portion of his fingers against her thigh and could feel his fingers rubbing in a fashion to pull up her dress. Victim believed this was a deliberate act because he was touching her upper thigh and pulling up her dress. She believed it was sexual."
"The accuracy of the above entry has been disputed by [AB], who specifically denies that he placed his hand between the victim's legs or that the touching was sexual. [AB] contends that he was "stimming", that is fiddling with the material of the victim's clothing in order to deal with anxiety.
The above entry was made based on an initial account taken by PC Rouse from the victim (noted in her pocket notebook), but was not a verbatim account of the victim's allegations. Due to the passage of time since the incident, PC Rouse has no specific, independent recollection of the victim's first account.
It should be noted that the victim provided a statement on 7 December 2011. She did not mention that [AB] had his hand between her legs or under her dress. She did state that her dress hem was moving up and [AB] touched her thigh and that she believed the assault to have been sexual.
A train driver to whom the victim first reported the incident stated that the victim complained of being touched on her side underneath her coat but that the touching was not intimate. The incident did not result in a prosecution."
The 2014 incident
"BRC Person Reporting: 4292 BRC Offence: sexual assault on a female aged 13 or over no penetration BRC MO: Offender sat on seat next to victim and during train journey put his hand on her knee and started to stroke her knee. Victim looked at him making him remove his hand. Minute later the offender touched the victim's vagina over her trousers shielding his hand from view using his coat on his lap."
"Victim sat on train. Male suspect sat down next to her in aisle with rucksack on his lap. Victim saw suspect has his right hand on knee. He moved his hand onto her knee. She felt touching on her knee - a tickling sensation. Victim looked at suspect who moved his hand back onto his knee. A short time later victim felt something on her knee again. Suspect had hand furthest from victim (left hand) across him under his jacket. Suspect pressing hand moving back and forth on victim's knee. Victim told suspect to stop. Suspect removed hand when victim told him to stop."
"The accuracy of the above entry has been disputed by AB, who specifically denies that he touched the victim's vagina over her trousers or that any touching was sexual. AB contends that he was "stimming", that is fiddling with the material of the victim's clothing in order to deal with anxiety.
The victim signed a verbatim record of her account in an officer's pocket notebook on 7 April 2014 stating that, during the encounter with AB, she "felt something touching [her] vagina over [her] clothes." However, this initial allegation was not borne out in the ABE interview on 15 April 2014. There was no suggestion from the victim during the interview that AB touched her vagina, only her upper thigh (but not her crotch).
The incident did not result in a prosecution, following CPS advice."
Subsequent events
Review of the police records
"The overriding consideration has to be the risk that [AB] may pose to the public… and whether that risk is outweighed by the harm to [him]. [AB] has shown a clear pattern of behaviour that raises concerns re inappropriate touching when in close proximity to females on the train. This behaviour and the possible risks attached to it illustrate a clear policing purpose to retain, both to protect the travelling public and to ensure [AB] is given proper support when communicating with the police. I have considered the harm that could be experienced by the individual in retaining the information. [AB] argues that retention of the records has had a considerable effect on his mental health and wellbeing, and has provided medical records to support this. However, the allegation is a serious one of Sexual Assault and deleting all trace of this could result in a possible pattern of behaviour by [AB] being missed if he were to come to notice again. Unless the nominal comes to police notice again, the retention of this data has limited impact upon him. I am satisfied that it is accordingly proportionate to retain the data so as to safeguard the travelling public and [AB]."
The pleaded cases
Legal framework
Data protection
"The fourth principle is not to be regarded as being contravened by reason of any inaccuracy in personal data which accurately record information obtained by the data controller from the data subject or a third party in a case where—
(a) having regard to the purpose or purposes for which the data were obtained and further processed, the data controller has taken reasonable steps to ensure the accuracy of the data, and
(b) if the data subject has notified the data controller of the data subject's view that the data are inaccurate, the data indicate that fact."
Right to respect to private life
The judge's judgment
AB
Accuracy of police records
"It is necessary for me to make findings about… what happened in relation to both incidents in order to determine whether the descriptions complained of are indeed inaccurate (relevant when dealing with the data protection legislation) and to consider the risk posed by [AB] (a necessary enquiry when considering proportionality in relation to Article 8)."
"It seems to me that the policing purpose of this field is fulfilled if it contains the most accurate account possible of what the suspect actually did or is alleged to have done, so that any characteristic features of the suspect's behaviour can be used as an aid to identify the suspect or tie him or her into another crime in which a strikingly similar method was used. More relevantly to this action, to the ordinary reader of the record, the "Modus Operandi" field constitutes a description of what the data subject actually did."
Impact of retention of police records on AB
Article 8 ECHR
Remedies
Submissions
Was the judge wrong to make findings of fact?
What do the OSRs mean?
(1) An entry in a police database that records "murder" against the name of an individual, might, depending on the context, mean that the person committed murder, or that they have been convicted of murder, or that there are grounds to suspect that they committed murder, or that an allegation has been made that they committed murder, and there are other possible shades of meaning besides: cf, in the context of the law of defamation,
Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11 per Brooke LJ at [45].
(2) The record of antecedents that is produced to a criminal court discloses the previous convictions of the data subject. The data is accurate if it accurately records those convictions. If it erroneously records a conviction then the data is inaccurate, even if the data subject committed the offence. If it correctly records a conviction then the data is accurate, even if it can be shown that the data subject did not commit the offence.
(3) As is well known, "Crimestoppers" is an initiative that enables members of the public anonymously to provide information about criminal activity. If the police maintain a database of information received from Crimestoppers, then an entry in such a database recording "murder" against a particular data subject may mean that information has been received that the data subject committed the offence. It will be accurate if that information was in fact provided; inaccurate otherwise. The accuracy of the data depends, in this context, on what information was provided, not on whether the data subject in fact committed the offence or whether they have been convicted of the offence.
(4) To take a different context (which is not entirely hypothetical – it is based on a recent determination of meaning in a defamation claim), if a police officer writes to the human resources department of the Royal Navy and states that a serviceman's "behaviour, threats, and blatant lies" fall far below the standard expected of a member of the armed forces, that is likely to convey that the individual has in fact behaved in the manner stated, not just that the police have received information to that effect.
Are the OSRs inaccurate?
Is the retention of the OSRs a disproportionate interference with AB's article 8 rights?
Did the judge's finding that the OSRs are inaccurate influence his decision that it is disproportionate to retain the OSRs?
Was the judge wrong to take account of his finding as to the (lack of) risk posed by the appellant?
Was the judge's conclusion on proportionality wrong?
Was the judge's award of damages wrong?
Outcome