Retention of data on alleged rapist lawful despite acquittal in criminal proceedings

21 May 2021 by Rosalind English

YZ, R (on the application of) v Chief Constable of South Wales Police (Rev 1) [2021] EWHC 1060 (30 April 2021)

The claimant YZ had been acquitted on three counts raping his former wife but details concerning these matters remain on the Police National Computer (PNC). These proceedings concerned whether such retention was lawful.

The question at the heart of this application was whether onus was on the competent authority to justify its processing of the claimant’s dat was lawful and fair under the Data Protection Act 2018. The claimant’s argument was that the relevant guidance ( issued pursuant to the 1984 Police and Criminal Evidence Act) to the police was not compatible with this statutory requirement as it put the onus on an applicant for deletion to give reasons for that deletion [para 40].

Factual Background

The rape allegations arose out of a short-lived marriage between the claimant and his wife. The couple met through social media when the claimant lived in Morocco and his future wife lived in the UK. They took part in an online event purporting to be a ceremony of marriage in 2007. Towards the end of 2010 the relationship broke down.
At the trial the claimant’s wife gave evidence against him, in which she said that the first rape happened about two weeks into her first visit to Morocco. She alleged that the subsequent rapes happened in similar ways, although she did not report these incidents to the police. She said that she stood by him because he told her that a Muslim wife must obey her husband. There was an acrimonious text exchange between them, including threats from the claimant against his wife, as well as evidence of assaults upon her parents and the children of the marriage.

The claimant was arrested in March 2012 for the offence of rape. His fingerprints and DNA samples were taken in compliance with the Police and Criminal Evidence Act 1984. He was charged to court and found not guilty.

There was no evidence to suggest that the case had been based on a malicious or false allegation. When the claimant applied to the applied to the Records Deletion Unit (RDU) of the Criminal Records Office for deletion of all of his personal data the South Wales Police refused. They did not agree that the grounds of “unlawfully taken’ and ‘no crime’ under the DPA 2018 had been met. The PNC record was retained. Paragraph 6.2.1 of the Guidance provides that

Acquittal at court, dismissal at court, or a conviction being overturned on appeal or by other judicial process, is not itself ground for record deletion as PACE allows biometric information to be lawfully retained for three years if an individual is charged with, but not convicted of, a Qualifying offence. Insufficient evidence to convict does not necessarily mean there is sufficient evidence to be eliminated as a suspect.

The records information officer who dealt with this appeal gave evidence that it was not in the public interest to dispose of the allegations against the claimant which were of particular significance in relation to child welfare and family proceedings. The guidance issued to the police provided that an acquittal was not itself ground for record deletion.

In February 2020 the claimant applied for judicial review of the defendant’s refusal to delete details of his acquittal.

Arguments before the Court

The claimant contended that the decision not to erase his sensitive personal data was not lawful under the Data Protection Act and was incompatible with Article 8 of the European Convention on Human Rights. He also argued that the guidance did not comply with the statutory requirement under Section 35 of the DPA for the processing of personal data for law enforcement purposes to be lawful and fair, as it put the onus on an applicant for deletion to give reasons for the deletion. 

Finally, he submitted that it had been perverse for the defendant officer to conclude that there had been no evidence of falsehood or malice as it was implicit from his acquittal that his wife’s allegations were rejected by the jury after it was put to her in cross-examination that they were false and malicious. The decision, said the claimant, to retain the information until he was 100 years old, was excessive.

The High Court rejected the application.

Reasoning behind the decision

HH Judge Jarman QC noted that the guidance, in encouraging individuals to give reasons why records should be deleted from the PNC, did not have statutory effect. However, in coming to his decision, the police officer in this case had had express regard to Schedule 8 of the 2018 Data Protection Act which included the processing of data “which was necessary for the administration of justice and safeguarding children and individuals at risk”.

The requirement in the guidance for positive evidence did not put the onus of proof on the applicant and the officer had not approached his decision on the basis that it was for the claimant to show that his record should be deleted. The officer had regard to all the evidence at trial to establish whether there was evidence that the allegations were malicious and decided that there was not. The claimant submitted that this approach offended against the principle of presumption of innocence and meant that the claimant continued to be under suspicion. In HHR Jarman QC’s judgment, however, two difference regimes were “in play”:

The criminal process in respect of these allegations has been completed and the claimant has been acquitted. The presumption of innocence has no continuing relevance, except to prohibit a public authority from suggesting that the acquitted defendant should have been convicted (see R. (on the application of Hallam) v Secretary fo State for Justice [2019] UKSC 2). 

The information as a whole dealt with the risk that the claimant posed to his wife and child; furthermore, the information relating to his religious views went further than just recording such views because it included concerns of extremism. Intelligence reports contained evidence that the claimant

expressed extreme views and has stated that he was put on Earth to kill important people and that he wants to make lots of changes; he agrees with suicide bombings and the actions of the Taliban; his likely targets are large organisations and he feels that the West have stolen from the Arabs. He has attended a training camp somewhere in the world and he has expressed an intention to kill Tony Blair and Gordon Brown [para 15]

It was argued on behalf of the defendant that whilst not linked to sexual harm, this intelligence information was reviewed in consideration to the ongoing retention of the rape case, as it significantly raised the risk of harm to others, something which is considered as part of the National Retention Assessment Criteria process. This is a national process that was developed alongside the Code of Practice on the Management of Police Information.

The rape case is the only apparent evidence of the potential for sexual harm, but these intelligence reports support the potential risk of further violence.

The decision to retain the data had been “rational and fair” [para 51], and the 100 year retention period was justified [para 55] and there had been no breach of Article 8 ECHR [para 58].