The Queen, on the application of (1) RMC and (2) FJ – and – Commissioner of Police of the Metropolis. Read judgment.
Liberal societies tend to view the retention of citizens’ private information by an arm of the state, without individuals’ consent, with suspicion. Last week, the High Court ruled that the automatic retention of photographs taken on arrest – even where the there is no prosecution, or the person is acquitted – for at least six years was an unlawful interference with the right to respect for private life of Article 8 of the ECHR, as enshrined in the Human Rights Act.
The case was brought by two individuals. One, known as RMC, was arrested for assault occasioning actual bodily harm after she was stopped riding a cycle on a footpath. The second, known as FJ, was arrested on suspicion of rape of his second cousin at the age of 12. In both cases, the individuals voluntarily attended the police station, where they were interviewed, fingerprinted and photographed and DNA samples were taken form them, but the CPS decided not to prosecute.
The retention of the DNA samples, fingerprints and photographs was challenged by way of judicial review, though it was only in respect of the photographs that the court allowed the claims to proceed, as the case of R (GC) v Commissioner of Police of the Metropolis  UKSC 21 has already addressed the use of DNA and fingerprints.
The power to photograph suspects arises from section 64A of the Police and Criminal Evidence Act 1984 (“PACE”). There is also a variety of policy documents, detailed in the Richards LJ’s judgment at §§10-17, including the Code of Practice on the Management of Police Information (“the Code”). Although there was a question as to whether the Met did in fact apply the Code, Richards LJ held that it did, and so it was the lawfulness of the policy itself that was at issue.
The reasons for keeping the photos were set out at §22 in the evidence of Commander Gibson from the Met. Essentially, it was a judgment call. In relation to RMC, Commander Gibson stated:
The arrest of RMC was lawful and proper process was followed. The allegation of assault remains classified as a substantive crime and RMC was the only suspect. The fact that RMC was not charged and no prosecution followed is not an exceptional criterion under the Exceptional Case Procedure. On this occasion I did specifically consider the custody photograph in my decision making. I do not accept the argument that no policing purpose is served by the retention of the information.
At both extremes, retention of data seems uncontroversial: information about convicted killers may protect the public, and keeping personal information of all people for no reason is unjustified and oppressive. The issue here was whether retention of these photographs would be an unjustified violation of Article 8, where there had been a decision not to prosecute, but the police considered there to be credible evidence behind the arrest and good reason to keep the information.
Interference with private life
The Court first assessed whether the retention of photographs was an interference with the respect for private life protected by Article 8. Crucial in deciding this was the case of S v United Kingdom (Apps No 30562/04 and 30566/04), in which the European Court of Human Rights (“ECtHR”) decided that the indiscriminate retention of DNA samples and fingerprints violated Article 8 rights. In S, the court stated at §67 that,
The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of art.8.
Richards LJ recognised that although DNA samples represent information of a different nature to photographs, fingerprints have been explicitly likened to photographs, and therefore (§33):
In the light of the court’s conclusion that the retention of fingerprints constitutes an interference with the right to respect of private life, it is difficult to see how any different conclusion could apply to the retention of photographs.
The Court then had to judge whether the interference with Article 8 rights was justified. Two arguments were put forward on behalf of the claimants: first that the retention was not “in accordance with the law” as required under Article 8(2), and second that it was disproportionate.
With regard to the first argument, section 64A PACE came under some criticism as being insufficiently precise to make the retention in accordance with the law. There was also consideration of the newly enacted Protection of Freedoms Act. However, Richards LJ dismissed the argument. The real issue was the proportionality of the interference with private lives.
In S, the ECtHR assessed the blanket nature of the restriction (which never goes down well in a proportionality assessment): the Court stated that those
who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons (at §122).
The claimants built on this proposition here: their objections to the policy were summarised as follows (§46):
The policy does not distinguish sufficiently between those who are convicted and those who are not charged or who are charged but acquitted. It does not take sufficient account of the age of the person arrested or of the nature of the offence for which the person was arrested. It does not make provision for input by the individual concerned when considering the question of retention. It does not make provision for independent review
However, despite accepting that there were significant differences between the fingerprint policy assessed in S, Richards LJ judged the policy in relation to photographs also to fall foul of the proportionality balancing exercise. The following three factors were highlighted:
- The lack of distinction between those convicted of an offence and those either acquitted or not charged; particularly important when the stigmatisation associated with having photographs linked to an arrest is considered.
- The length of retention: at least six years, and to be reviewed every 10 years for RMC and potentially up to the age of 100 years for FJ.
- The effects of retention is particularly worse for minors, in relation to whom there exists in any case a particular obligation to protect.
The courts are often slow to rule against the police, in acknowledgment of the role they play in protecting people. This decision adds to the ones in S and GC as restricting police practice in order to protect individuals’ Article 8 rights. But there are good reasons to support this strong judgment. The point of principle is simple. For an order to be lawful, government measures, even in areas acknowledged to be of great public importance, must be sensitive to genuine distinctions; that different types of public protection may permit different levels of interference with rights.
The issue in this case was clearly not the worst excess of police power imaginable; the retention of photographs of people arrested for a crime – where the checks on arrest are strong – may not seem a weighty issue. And it’s worth noting, for all the liberal principles in favour of the claimants, that there are good liberal reasons for retaining for the police having the right to retain this information: protecting people vulnerable to crime is one potential example.
But the importance of proportionality should not be underestimated. An effective way of reducing the negative impact of the fact that contact with the police is so highly stratified along gender, racial and socio-economic status boundaries is tightly to require strong justification for practices such as the one considered here. In this context, the reasons factors highlighted by Richards LJ seem compelling.
As Lord Nicholls noted in Campbell v MGN  UKHL 22, recognised in in Richard LJ’s judgment here at §37, a picture can be worth a thousand words, and a photograph taken on arrest conveys not only the identity of the person but also the fact of arrest. This deeply revealing information must be handled sensitively.
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