A pattern of behaviour?

Divisional Court (Hickinbottom LJ and Moulder J) [2018] EWHC 3333 (Admin)

Executive summary

In judicial review proceedings challenging the recording and retention by Greater Manchester Police (GMP) of the claimant’s alleged involvement in three incidents of ‘sexting’ involving other students, the Divisional Court dismissed his claims under Article 8 European Convention on Human Rights (ECHR) and refused permission to proceed under Article 6.

Background

The claimant was alleged to have been involved in three incidents of sexting among schoolchildren. The first occurred in early 2015 and was said to have involved him sending an image of himself to a female student and receiving an image in return. A school-based police officer was informed and spoke to the claimant, warning him his actions constituted a criminal offence and should not be repeated.

In March 2015, another female student went to the assistant head teacher to report that the claimant had sent her a picture of himself and she had sent one in return via a social media app. She had then fallen out with the claimant who had passed on the photograph to another student. The claimant was seen by the teacher and the same school-based officer, the teacher reporting that the claimant had admitted sending the image of himself and the female’s image to a third party and had agreed to delete them from his phone. It was agreed that the police officer would record the crime and tell the claimant’s parents. In his statement made in the present proceedings, the claimant accepted that he had sent a photograph of himself but said that the female had circulated that more widely and denied receiving one from her.

The March 2015 incident was recorded and “finalised” in September 2015 and then challenged by the claimant’s lawyers in November 2015. Its lawfulness was maintained by GMP, leading to the issue of a judicial review claim in July 2016.

By that stage, the claimant had been involved in a further reported incident in February 2016. That involved an allegation by a further female that the claimant (as one of seven boys in all) had asked her to send indecent pictures of herself, and when she refused had threatened to tell people they had slept together. She said she had sent one indecent image and received one back, although she thought that image had been taken from the internet.

The third incident had been subject to preliminary investigation by GMP, but the girl’s account was “very vague” and she could either not recall or refused to provide her account and log-in details to recover images from her phone. In any event, the girl did not want to pursue matters formally and it was decided by GMP that it was in her best interests not to tell the claimant or any of the boys of the allegation “as this may seriously compromise her progress at school and negatively affect her wellbeing.

However, following an initial refusal of permission to proceed by Sweeney J in April 2017, the claimant secured permission to challenge GMP’s actions and seek relief as an individual, but expressly not with regard to the content of any guidance or other document.

Following this, GMP disclosed a redacted version of the crime report for the third incident in February 2016. At the same time, GMP indicated its intention to review the decision to retain the information identifying the claimant and said it would take into account any further representations from the claimant, particularly in light of the disclosure in relation to the third incident. The claimant’s response was that the failure to inform the claimant of the third incident was a breach of his Article 6 ECHR right. No other representations were made.

That review of the decision was carried out by Detective Superintendent Rawlinson. Det Supt Rawlinson caused some further investigations to be made and produced a detailed rationale for her decision. She concluded that “based on the pattern of offending behaviour of CL I believe that it is necessary to record his name as a suspect… in order to protect members of the community and to assist in the prevention of further crimes. If a decision was made not to record his name on the crime, officers would not be able to correctly assess the risk she poses and would not be cited on his previous history which potentially could be an incredibly dangerous position. It is my opinion that the behaviours displayed by CL are beyond what can be described as normal teenage sexual development...”

Det Supt Rawlinson’s fresh decision then led to the issue of a second claim for permission to bring judicial review proceedings in respect of the third incident. In those proceedings, the Article 6 challenge presaged in the claimant’s response to disclosure of the third incident was raised, alongside Article 8 arguments parallel to the first judicial review claim.

The decision

Article 6

Observing that “a crime report is not the same as a criminal record” the Divisional Court agreed with GMP that “it cannot be sensibly said that the nomenclature used in the crime report (that of “crime and “offender”) either converts what is plainly a record of an allegation into an out-of-court disposal of a criminal charge, or pre-determines any future disclosure decision or the terminology that might be used in such a decision.

The court acknowledged that children enjoy a special position in the criminal law, but that special position “does not alter the time at which a charge is made for the purposes of Article 6”. The court declined permission to proceed under Article 6, and further rejected any argument on wider procedural unfairness.

Article 8 – legality

The court noted that “the focus of the claims before this court is on whether the collection/recording and then the retention of the data in this case was and is (i) in accordance with the law, and (ii) proportionate to its objective of securing public safety and/or preventing disorder or crime, but in the context of the obligation upon [GMP] to have regard to the need to safeguard and promote the welfare of the claimant as a child. -paragraph 86

Having considered the relevant authorities, the court concluded that “the duty to have regard to the need to safeguard and promote the welfare of children does not affect the nature and scope of police functions, including the collection and retention of data. Rather, it affects how that function is performed.” - paragraph 93

And at paragraph 97 the court concluded –

The crime recording system is designed to assist with legitimate identified police public interest purposes, notably the prevention and detection of crime and the protection of potential victims. They consequently record any report of an incident that, on its face, probably amounted to a crime. The threshold for recording is low, and deliberately so; any information that may be useful to be identified police purposes is recorded, and retained, unless and until it is shown that no crime was committed by the relevant individual or that it is no longer required for those purposes. With the safeguards [described earlier in the judgment], the system is not arguably unlawful nor does it constitute a risk of unlawfulness.”

As to the claimant’s concerns regarding the length of retention and potential disclosure in the future, the court observed -

Any application for an ECRC (enhanced criminal record certificate) would have to be dealt with on its merits; and given the infinite variety of circumstances which may obtain, it is simply impossible to give a guarantee as to the result of any ECRC application that may be made in the future. However, neither the rule of law nor Article 8 require such guarantees. They require appropriate safeguards against arbitrary collection, retention and disclosure of information...they are in place in the scheme we are considering.

Article 8 - proportionality

The Divisional Court noted that “proportionality is a matter of substance, not form.” As a result, it was for the court to determine whether, on all the evidence, the recording and retention of the claimant’s personal data was a proportionate interference with his Article 8 right to respect for his private life. The court observed that “whilst individual incidents when looked at discretely may not signal anything untoward, when put together they can, for example, show a pattern of behaviour which may be concerning.

Having noted the claimant’s evidence from noted academics that sexting without aggression or exploitation carries no link to a future risk of sex offending, the court observed contrary views. It concluded that “the police are certainly entitled to take the view that sexting, even between adolescent children, is potentially harmful.

Paragraph 108 of the judgment bears repetition –

The width of discretion that the police have in the matters which they investigate, and the scope of any investigation, is well recognised. If in the exercise of that discretion – guided of course by the various provisions and codes etc to which we have referred – the police decide not to pursue a matter in respect of which there is prima facie evidence of an offence having been committed, because the suspect is a minor, it would be curious if they were unable at least to retain sufficient information to ascertain whether any pattern of behaviour was forming. If they were to investigate and prosecute to a conviction, then that would ensure a record on the PNC. If they were obliged to record an offence pursuant to the HOCR (Home Office Counting Rules) but were unable to record details of a suspect for proper police purposes, then that may prompt the exercise of their discretion to investigate and even prosecute in more cases. That would undermine the policy underlying Outcome 21 [effectively no further action] a key objective is which to outline a proportionate response to the reports of sexting between adolescent children and in turn reduce the potential over-criminalisation of children.

The court concluded that retention of the information in respect of each incident was well justified. Even considering evidential issues raised and the fact that the claimant was a child (whose best interests were clearly in having the data deleted), the balance still fell firmly on the side of the public interest in retention. In assessing proportionality on the basis of future risk, the court saw “no difficulty in...considering that risk on the basis of current evidence. Indeed [Det Sup Rawlinson] was right to do so.”

Comment

This is an interesting case analysing the difficult balance between the rights of adolescent alleged offenders and the competing public interest in the rights of others. Claims of this nature are always to be determined on their own particular facts, but the studied and clearly articulated comments of the Divisional Court in this case will be of wider use and application.

If you have any questions or would like to know more about our update, please contact Nick Peel, Partner, on 0151 242 9453, or nick.peel@weightmans.com.

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