High Court guidance on the basis of criminal investigation, Home Office Counting Rules and deletion of police records

Executive summary

In a complex judicial review, the High Court has provided guidance on the basics of criminal investigations, Home Office Counting Rules (‘HOCR’) and how the police should approach requests for record deletion. The court also analysed the law on reasonable punishment of a child by a parent in England.

Background

The initial allegation

In 2022, X (a 5-year-old) had problems, including bed-wetting. C (and his wife) – the parents of X - helped.

On 16 March 2022, X said something to his schoolteachers to the effect that C touched his ‘pee pee’ at night. The teachers reported this to the police. PC Smith spoke to X and recorded this in her notes.

The same day, C was arrested by PC Smith on suspicion of sexual assault. In interview, C explained he had not sexually assaulted X but had helped with toilet training. C’s wife gave the same account.

On 25 March 2022, X was spoken to by DS Crombie as PC Mullooly listened. X confirmed C’s account but, in PC Mullooly’s notes it is recorded, “My Daddy smack Touch my bum bum all the time”. There is no mention of anyone being angry (which will become relevant later).

On 29 March 2022, PC Fordham closed the case, concluding this was a case of father toilet training his son, not sexual assault. C was notified and asked the police how to clear his name and delete records of the arrest should they appear on an enhanced DBS check.

Request for deletion

On 1 April 2022, C wrote to Kent Police, requesting that his personal data be deleted from police records.

On 6 May 2022, the Criminal Records Office (‘ACRO’) replied, refusing C’s request for record deletion because Kent Police had told them “there has been no additional verifiable information obtained to confirm that a crime did not take place”.

C sought an appeal, the police did not respond so C sent a letter before action. The police replied.

On 13 September 2022, ACRO confirmed the appeal had been allowed. It was confirmed C’s PNC arrest record and custody image would be deleted but a record of the incident would remain on the local system.

On 20 September 2022, DI Davies reviewed the matter for a possible ‘crime cancellation’. DI Davies determined that the crime should be cancelled in accordance with Home Office Counting Rules (‘HOCR’) general rules 2022 outcome C2: additional verifiable information determines that no notifiable crime occurred.

The reclassification

On 4 October 2022, a Kent Police Dedicated Decision Maker (‘DDM’) rejected DI Davies’ review and instead re-classified the crime report as ‘common assault’ because, “the victim has also stated that the suspect smacks his bum when he is angry.” The DDM opined that even if it was deemed lawful chastisement, it is still an assault.

From then on, Kent Police retained a crime report to the effect that C had assaulted his son in anger. X was not interviewed or consulted on this reclassification and the review was undertaken without his knowledge.

The challenge

C sought judicial review of the decision made by ACRO on 13 September 2022 to retain a record on the local system. This was rejected on the papers by the High Court, the judge reasoning that there was no substantive decision by Kent Police refusing deletion.

C renewed permission at an oral hearing and, made a formal request to the police for deletion of the crime report from the local system.

On 2 February 2023, Kent Police refused deletion because the crime report was an accurate record and no evidence was presented to suggest deletion was required.

The judicial review

Due to the manner in which disclosure was provided, the judicial review application was amended and re-amended. The eventual application before the court was:

1. Kent Police’s decisions of 4 October 2022 and 2 February 2023 (together ‘the decisions’) were unlawful with regard to common law, Article 8 of the ECHR and data protection legislation.
2. The Data Protection Act 2018 did not provide an adequate alternative remedy to either decision.

Law

Common law – criminal investigations

There are no rigid rules as to what procedural fairness requires – the standards of fairness vary enormously depending on the type of decision in question. Despite that, the question for the court was not whether they thought what the decision-maker did was fair: the question is, was it fair?

There will be occasions when an allegation is not put to a suspect but, if the police are to make a record, it is a basic principle of fairness that a person should have criminal matters alleged against them put to them so they have an opportunity to respond.

Common law – HOCR

An incident will be recorded as a crime for ‘victim related offences’ if, on the balance of probability, the circumstances of the report amount to a crime and, there is no credible evidence to the contrary.

In England, reasonable parental chastisement is not a crime. What is reasonable will require an evaluation of all the circumstances.

Article 8

Everyone has the right to respect for their private and family life, home and correspondence. The systematic collection and storage in retrievable form (even of public information) about an individual is an interference with private life. Any interference with this right must be proportionate to achieve a legitimate aim and, be lawful.

The data protection legislation

Sections 35-40 of the Data Protection Act 2018 set out six data protection principles, including that the processing is lawful and fair and, personal data must be accurate and kept up to date.

Decision

1. Were the decisions unlawful according to the common law?

Yes. There is no reason why the police could not have re-interviewed C in light of X’s allegation about smacking and asked for his response to it and the police misapplied the HOCR. It was the wrong approach to simply conclude that because X had reported being smacked, a crime of assault had been committed by C on a balance of probabilities, which then had to be recorded, regardless of whether or not the assault was lawful chastisement.

2. Were the decisions unlawful contrary to Article 8?

Yes. Applying Cemalettin Canli v Turkey (App no 22427/04) a failure by the police to comply with regulations concerning criminal records meant that interference was not ‘in accordance with the law’.

3. Were the decisions unlawful contrary to the data protection legislation?

Yes. Because the recording of the common assault allegation was unlawful, the police failed to comply with the first data protection principle. Also, because the crime report said that C had committed a crime of common assault, when no proper assessment had taken place, it was inaccurate.

4. Did the Data Protection Act 2018 provide an adequate alternative remedy to judicial review?

No. The court always has jurisdiction to consider challenges to decisions of a public authority. The court has discretion not to exercise that jurisdiction where there is an adequate alternative remedy. Given the complexities of this case and the legitimate public law complaints made (regarding the lawfulness of the decision and interference with Article 8) the data protection legislation would only provide a remedy to the data protection matters so was not adequate in this instance.

Clearly identified as obiter, the judge questioned the wisdom of the police’s policy that allowed for police officers to investigate crime A, determine that crime A never occurred but that a DDM – on the basis of no new evidence or even on an examination of the existing evidence – to say that in their view, crime B had been committed and record that crime instead.

Comment

There were a number of complicating factors to this case due to the way it evolved through the lifetime of the judicial review. The key issue for the police is to ensure that any review of the deletion of records is made in accordance with ACRO guidance and HOCR. Police decision makers should also be careful to ensure that any review they undertake is focused on the initial decision. If they identify matters that have not previously been investigated, this should be referred back to police officers for consideration and, if necessary, investigation.