High Court ruling on mugshot retention: will it affect crime reduction partnerships?

In a test case brought to the High Court by the Equality and Human Rights Commission, judges ruled that police cannot, without restriction, keep photographs of people without criminal records or those not found guilty. The ruling appears to contradict Home Office guidance on the subject. Does it have any bearing on personal information retained by crime reduction partnerships, pubwatches and shopwatches?

The judges agreed with the submission of the Equality and Human Rights Commission - which was set up by the Equality Act of 2008 - that unless someone has been charged with, or convicted of, a crime it is an unjustifiable breach of their right to a private life for the police to hold on to a photograph of them.

The Metropolitan Police had claimed that keeping photographs of those not convicted was necessary for preventing crime and disorder.

As a result of the finding the police have been instructed to revise its procedures 'within months, not years'.

The test case revolved around two instances where the Met had retained images of individuals - one a middle aged woman and one of a boy suspected of rape when he was 12 years of age - against whom all charged had been dropped.

According to John Wadham, General Counsel for the Equality and Human Rights Commission: 'Without the protection of our human right to a private life, the police would be able to hold onto your DNA, fingerprints, and photographs even if you'd done nothing wrong. There is no good reason why the police should hold onto information about people who have not committed any crime.'

However, closer reading of the court's judgement raises questions as to the impact of the ruling. Lord Justice Richards said the Met would not have to delete details of the teenage boy's alleged offence from the police national computer. And although the court said that police policy contained 'deficiencies', it stressed that the issue pertained particularly in the case of children. Neither did the court oblige the police to destroy all such images: instead it said that the Met should be given time to revise their policy and re-assess whether the retention of the two individuals' photographs is justified under the new terms.

The judges' emphasis was on the inadequacy of existing police policies which are themselves based on Home Office guidelines. Under the Police and Criminal Evidence Act (PACE) police can take photographs of individuals detained at a police station 'with the appropriate consent; or if the appropriate consent is withheld or it is not practicable to obtain it, without it.' Under the same law, such photographs 'may be used by, or disclosed to, any person for any purpose related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution or to the enforcement of a sentence; and after being so used or disclosed, may be retained but may not be used or disclosed except for a purpose so related.'

The Met's own guidance provides 'presumption in favour of retention' of individuals' records as long as the retention is not 'excessive' and it is 'necessary for a policing purpose, is adequate for that purpose and is up to date'. And of course storage of the data must also comply with the principles of the Data Protection Act, although the Act itself makes important exceptions to some Data Subjects rights (for example to access data about themselves) for the purpose of detection and prevention of crime.

The ruling is by no means as drastic as some newspapers have presented it. In particular, the Met has not been ordered to destroy all mugshots of all individuals who have not been charged or convicted. Instead it has been required by the court to revise its retention policy.

How does this impact the use and retention of images by crime reduction partnerships? Two major factors suggest that the ruling will have little or no bearing on the rights of crime reduction partnerships to retain images of individuals who have not been charged or convicted for offences under the criminal law.

First, the test case brought by the quality and Human Rights Commission was specifically to clarify the impact of the Human Rights Act of 1998 on the retention of images and personal data by the police. The Act applies only to public bodies and authorities - of which the police is an example of course. In contrast, crime reduction partnerships such as BCRPs, shopwatches and pubwatches are generally private organisations. Indeed in a case in 2009 a judge expressed the view that while pubwatch schemes (and, by extension, shopwatch and similar schemes) vary across the country, where police and local authority's involvement was limited to advice and support, they could not be considered in any sense 'public authorities'.

And second, 'the right to exclude' - which was itself reaffirmed and upheld in the High Court in 2005 - allows businesses, or indeed anyone, to exclude anyone they wish from their premises for any reason whatever as long as it is not entirely on the basis of ethnicity, sexuality, religion or disability. In order to ensure the effective application of this right it could be claimed with effect that retention of personal data for this purpose is appropriate, whether or not the individual him- or herself had been convicted. However, good practice, as always, must prevail so that, for example, this data is carefully restricted to the use of members of the partnerships involved, all such individuals are treated equally and fairly by the partnership and, of course, all the provisions of the Data Protection Act are respected.

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