Adam Tear, solicitor (of Duncan Lewis, Harlow ) for the claimant; Dijen Basu (instructed by Comptroller and City Solicitor, City of London ) for the commissioner.
The claimant was arrested in 2009 on suspicion of theft of a radio from a hotel room where he had stayed. He was detained at a police station where he was photographed and his fingerprints and a sample for the purposes of deriving a DNA profile were taken. It was subsequently decided that the matter would not be pursued. The claimant sought judicial review of the defendant’s decision on the ground that the continued retention of arrest information relating to him on the Police National Computer (“PNC”) was in breach of his rights under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Claim dismissed. The claimant’s contention that the retention of the record of arrest information on the PNC was unlawful was untenable. The arrest information was plainly held for a lawful policing purpose and involved a proportionate interference with the claimant’s rights under article 8 of the Convention. As to fingerprints, DNA and photographs, the matter was determined by R (GC) v Commissioner of Police of the Metropolis [2011] 1 WLR 1230, which declared that the ACPO guidelines concerning the retention of such material were unlawful but declined relief aimed at the immediate destruction or removal of the data, because draft legislation on the subject was going through Parliament and the court considered it appropriate to allow a reasonable time for the adoption of a lawful alternative to the unlawful policy. It would be wrong for the court to intervene now by way of destruction orders on a case-by-case basis in circumstances where the new regime under the Protection of Freedoms Act 2012 could be expected to come into force next spring and a new ACPO policy in relation to photographs would be brought into effect within a similar timetable.