FOURTH SECTION

DECISION

Application no . 22189/10 A.S. against the United Kingdom

The European Court of Human Rights ( Fourth Section ), sitting on 1 1 March 2014 as a Chamber composed of:

Ineta Ziemele, President, Päivi Hirvelä, George Nicolaou, Nona Tsotsoria, Paul Mahoney, Krzysztof Wojtyczek, Faris Vehabović, judges, and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 13 April 2010 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, A.S. , is a British national, who was born in 1957 and resides in the United Kingdom .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows. In May 2005 the applicant, a police officer, was arrested and charged with what he describes as serious sexual offences. His trial took place in January 2006 and he was acquitted. He was permitted to return to police work in April of that year, although subject to certain unspecified restrictions. Moreover, the applicant states that because of his relatively uncommon name it is easy to find news reports on the Internet about the charges brought against him, his trial and his acquittal.

In light of the seriousness of the charges, information about them will be retained by the police until the date of his 100 th birthday in accordance with current policy, and may be disclosed in certain circumstances as explained below. The applicant did not take any domestic legal proceedings in relation to his complaint.

B. Relevant domestic law and practice

The law and practice in relation to the retention and disclosure by police of personal information (arrests, charges, convictions, acquittals and so forth) which were current at the time of the applicant ’ s trial are referred to the Court ’ s judgment in M.M. v. the United Kingdom , no. 24029/07 , 13 November 2012 (see §§ 33-45 regarding retention and §§ 48-60 regarding disclosure).

In summary, and as the applicant has indicated, under the ACPO Retention Guidelines, information relating to the charges brought against him as well as the fact of his acquittal will be retained on the Police National Computer until the date of his 100 th birthday. The Guidelines make detailed provision for the “stepping-down” of information held by the police. Information that has been “stepped down” is accessible only to the police. None of the other bodies with which police forces share information may gain access to it. Where a person has been acquitted, the information is stepped down immediately. It would only be disclosed as part of an enhanced criminal record check if the police decided that it was relevant to the purpose of such a request and not disproportionate to do so.

COMPLAINT

T he applicant complained under Article 8 that the retention and potential disclosure by police of information about the charges brought against him violated his right to respect for his private life. He also complained under Article 14 that it was discriminatory.

THE LAW

Relying on Article 8, the applicant argued that the retention on police files of information about his having been charged with serious sexual offences was a disproportionate interference with his rights under Article 8 and was discriminatory against him, failing to respect the fact that he had been acquitted. Any disclosure of this information would have serious personal and professional consequences for him.

The Court considers that the complaint in this case pertains essentially to Article 8 only. This provides as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court cannot examine the substance of the applicant ’ s complaint, though, as it is inadmissible for the following reason.

In the above-mentioned M.M. case, the Court held that at the relevant time (2006-2007) there were no domestic remedies available for the applicant ’ s complaint that afforded her reasonable prospects of success. That conclusion does not apply to the present case, which is clearly distinguishable.

There is first of all a factual distinction to be made. In M.M. , there had already been disclosure by the police of the information about the applicant to a prospective employer, causing that party to withdraw the offer of employment. The present applicant has not indicated that any disclosure of the information concerning him has occurred. His complaint concerns the fact of retention and the risk of disclosure. As the Court observed in M.M ., a complaint about retention in reality flows not from the retention itself but from the fact that, if retained, disclosure may follow (at § 159). An appropriate remedy in the applicant ’ s circumstances would therefore be one that safeguarded against unjustified or disproportionate disclosure of the information about him. As indicated above, given that the information has been stepped down, it is only in the context of an enhanced criminal record check that this might occur.

This leads to the second ground of distinction from the M.M. case. That applicant had a criminal record, as she had admitted the offence in question. Disclosure of such information in the context of an ordinary criminal record check is statutorily required. The applicant in the present case was acquitted and so details of the charges brought against him in 2005 would not be included in any ordinary criminal record certificate concerning him. He is therefore in a different legal position. Accordingly, the domestic case-law referred to by the Government in the M.M. case, which the Court found not to be directly relevant to that applicant ’ s situation, is relevant here. This refers above all to the judgment of the Supreme Court in the case R(L) v Commissioner of Police for the Metropolis [2009] UKSC 3, delivered on 29 October 2009 (summarized at §§ 101-115 of M.M. ). In that case, the majority of the Supreme Court, with reference to the case-law of this Court, accepted that the retention in police files of non-conviction data concerning an individual and its disclosure on an enhanced criminal record certificate fell within Article 8 of the Convention. The Supreme Court ruled that the relevant statutory provision (at the time section 113B(3) of the Police Act 1997, since amended) could be interpreted and applied compatibly with Article 8 of the Convention. Departing from previous case-law, Lord Hope held that in deciding whether to disclose information the police must respect proportionality by carefully assessing whether the disruption to the private life of the person is judged as great, or more so, as the risk that non-discl osure would create for vulnerable persons. Neither consideration ought to take precedence, nor should there be any presumption in favour of disclosure. Lord Neuberger stated that there would be an obligation on the police in many cases to allow the person to make representations on the matter before reaching a decision on disclosure.

Following the R(L) decision, the Court is aware of a growing series of successful challenges by individuals to the inclusion of non-conviction data on enhanced criminal record certificates , whether on the procedural ground of failure to allow representations or on grounds of proportionality. See as examples the decision of the Court of Appeal in R(C) v Secretary of State for the Home Department [2011] EWCA Civ 175 of 19 January 2011 and the decision of the High Court in R(J) v. The Chief Constable of Devon and Cornwall [2012] EWHC 2996. The domestic courts have also examined complaints solely about the retention of non-conviction data, for example the decision of the High Court in R(TD) v. The Commissioner of Police for the Metropolis and the Secretary of State for the Home Department [2013] EWHC 2231 (Admin).

The Court further notes that in 2012 the relevant provisions of the Police Act were amended in order to better reflect the principle of proportionality when considering whether to disclose non-conviction data. At the same time, the Home Secretary issued detailed guidance reflecting the case-law of the Supreme Court summarized above, which the police are under a statutory duty to have regard to.

It is not however necessary to assess these recent changes since the Court is satisfied that at the time this application was lodged, domestic case-law clearly provided the applicant with the means to challenge the retention and potential disclosure by the police of the information regarding him. Since he made no use of these means, the Court finds that domestic remedies have not been exhausted and that the application must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Ineta Ziemele Registrar President