Update: police and criminal evidence

The tension surrounding privacy issues must be very much at the forefront of the public consciousness, given the creeping intrusion into our own privacy by politicians which are very much seeking to assert their own. This is illustrated only too well with respect to the state's use of personal data.

Of course, since the Human Rights Act 1998 came into force, the protection given by Art. 8 carries all the force of domestic law.

In December last year the European Court for Human Rights (ECtHR) in S and Marper v United Kingdom (Applications nos. 30562/04 and 30566/04), determined that the British government's policy of retaining DNA, fingerprints and photographs from arrested persons who were not subsequently convicted of a crime, was inconsistent with its human rights and data protection obligations.

Emphasis was given to the fact that the taking and use of personal data by a state power must always be conducted in such a way that is consistent with the Art.8 of the European Convention on Human Rights (ECHR) and the Data Protection Act 1998 (DPA). Sadly, the then Home Secretary sought to maintain the status quo as much as possible by the measures she proposed for retention of data for six to 12 years following arrest.

It is interesting to see how privacy issues have been dealt with in other recent decisions by the domestic courts, in this context.

Photographing

The matter of Wood v Commissioner of Police for the Metropolis [2009] EWCA Civ 414 was brought following the retention by police of photographs of the claimant taken for the purposes of investigation of an offence. The photographs were retained long after it became apparent that the claimant had no involvement in the offences that were being investigated, in contemplation of the fact that the claimant may go on to commit crimes in the future.

The Court of Appeal held by a majority that the taking and the retention of the photographs of the claimant amounted to a violation of his rights under Art.8 of the ECHR. All three judges agreed that Art.8 was engaged. Dyson LJ and Lord Collins were of the opinion that the claimant's rights under Art.8 had been violated due to the prolonged retention of the photographs. The mere taking of a photograph of an individual in a public place by a police officer would not of itself give rise to an Art.8 interference but could if aggravating features existed '“ such as photographs being taken from a distance when the claimant was under no compulsion or restrain.

It was found that there was a violation of Art.8 on the grounds of proportionality. As such it was not necessary to decide whether the interference had been done 'in accordance with the law'.

Laws LJ appeared more inclined to accept that that mere taking of the photographs, in circumstances where the claimant was aware that they had been taken but did not know why they were being taken or for what purpose, may in itself constitute a breach of Art.8. He, however, was of the view that this interference was justified and within the law, as the police had a common law power to take and retain photographs, which was he thought was sufficient for the purposes of Art.8 given the modest infraction.

This controversially would suggest that the more intrusive the act complained of the more precise and specific must be the law to justify it '“ the other judges seemed to doubt that this would be the case.

An opportunity was missed to consider the relevance of the Data Protection Act 1998 to the issues in the case.

While the case related to the taking and retaining of photographs, it arguably provides authority for the proposition that Art.8 is engaged whenever a public authority retains personal data on an individual. This would follow the line of reasoning that was advanced in Marper.

Search of person

In the matter of Baker v Crown Prosecution Service [2009] EWHC.299 (Admin) police officers entered premises under s.17(1)(e) of PACE, permits the police to enter and search premises, in response to reports that a person was behaving strangely and wielding a knife. They discovered a blood-soaked female at the property, who attacked a police officer before they had had an opportunity to search her. She was prosecuted for assaulting a police officer in the execution of his duty.

At issue was the lawfulness of the police's conduct, with respect to whether they had power under s.17(1)(e) PACE to search for the knife. The court took the view that the statutory provision permitted the search of an individual, even though this section makes no reference to the search of an individual, a decision that was justified on the basis that such a search was lawful for the purposes of preserving life and limb. In so doing the court relied on s.17(4) of PACE, which permits a search to the extent that the power of entry was originally exercised; a section which is normally used to limit the power of search by police, rather than to extend it. It is arguable, however, that the power of search would be better derived from the police's common law power to save life and protect from injury, and not from PACE at all.

Again, neither party nor the court turned its attention to the question of whether Art.8 was engaged and if so, how the powers of the police should be interpreted in that light.

Release of information to a third party

In W v Chief Constable of Northumbria [2009] EWHC 747 (Admin), the claimant had been arrested in June 2007 on suspicion of sexual assault on his daughter. He was bailed pending a decision on charging from the CPS. He had a previous conviction for sexual assault, which was spent under the Rehabilitation of Offenders Act 1974.

The claimant's job involved entering private addresses to deliver household items. The police were concerned that this could bring him into contact with children, and disclosed the fact of his previous arrest for a sexual offence on a child under 13, that he was presently on police bail and the existence of the spent conviction, to the claimant's employer. The claimant was dismissed from his employment as a result of the disclosure.

The claimant brought an action for judicial review of the decisions to disclose the information to his employer. While holding that the disclosure of the 2007 matter was lawful, the court held but the disclosure of the 1987 conviction was unlawful on the grounds that the police had failed to take into account two relevant matters, namely the Rehabilitation of Offenders Act 1974 and the Home Office Circular 047/2003.

The police have statutory powers to provide relevant information to employers/ prospective employers via the Criminal Records Bureau procedure. However, the W case concerned the common law powers of the police to provide information about an individual to a third party where they considered there was a potential threat to another individual.

Depending on the circumstances of the case the disclosure of a spent conviction to a third party can be lawful. It is very difficult for individuals to challenge the decisions of the police when they disclose information about them to a third party and the disclosure has occurred in a procedurally correct manner.

Retention of evidence

In the matter of Scopelight Limited & Others v Chief Constable of Northumbria and Another [2009] EWHC 958 (QB), the police obtained a search warrant to enter the claimants' premises, which they did, accompanied by the second defendant, a private commercial party interested in the outcome of the search.

During the search a number of items were seized. The Crown Prosecution Service subsequently decided that no criminal proceedings would be taken against the claimants. However, the second defendant decided that they would bring a private prosecution against the claimants, and, with the police, sought to retain the items for that purpose. The court held that there was no power to do so, and that the claimant's property should be returned.

In so doing it did not rule out the possibility of the situation being different were the prosecuting body a public authority, although one would expect that this could only be done in accordance with the law.

Notably, S.8(2) PACE only authorises the power of retention to the police. It is common for the police to act with other agencies and clearly if in so doing they pass on evidence to other agencies without a legal basis they are not only interfering with other's rights, but are providing grounds for an abuse of process argument.

In both the W and the Scopelight decisions the court relied on authorities which predated the Human Rights Act, and neither engage with the issue of Art.8 or the DPA. This is disappointing given the court's duty to consider human rights issues in making a decision.

As it would be likely to be the claimant relying on the Art.8, this is perhaps irrelevant given that the judgments went in the claimant's favour in any event, however in both cases the decision turned very much on the facts.