Autistic Spectrum Disorder: Retention of Records and Art 8 Rights
7 November 2022
What approach should a judge take when deciding if police crime reports are accurate within the meaning of data protection legislation? Must the reports accurately describe what in fact occurred in the underlying incident, or should they instead accurately reflect the information provided to the police about the incident? AB v Chief Constable of British Transport Police [2022] EWHC 2749 (KB) Johnson J
On an appeal from Manchester County Court, his Lordship also had to decide whether the judge was wrong: (i) to find that the police records were inaccurate; (ii) to find that the retention of the records was a disproportionate interference with AB’s Art 8 rights; (iii) to award damages of £15,000 for distress, £15,000 for loss of earnings and £6,000 for aggravated damages.
AB, who has autistic spectrum disorder (ASD) of the Asperger’s type is 31. He suffers from high levels of anxiety as well as communication and processing difficulties. As a coping mechanism he stims,[1]rubbing fabric between his fingers.
In December 2011 an allegation was made against AB by a young female trainee solicitor who sat next to him on a train complaining that AB had inappropriately touched her. Suffice it to say, the OSR (occurrence summary report) on the police system was different from that contained in the complainant’s witness statement. Although a few days later AB agreed to accept a police caution for an offence of sexual assault, when this was challenged the police accepted that AB was a vulnerable adult and that an appropriate person should have been present. The caution was expunged and a file entry made that there would be no further action as there was insufficient evidence.
There were additions to the OSR updating the report and stating that the accuracy of the entry had been disputed.
In 2014 there was a further allegation of sexual assault which occurred on a train in similar circumstances. In interview AB said he had ASD and provided medical evidence. He did not answer questions put to him in interview. The CPS decided not to prosecute after receiving advice that it was unlikely that a jury would convict because of AB’s autism.
An OSR entry was made and later updated to say it was disputed. In 2017 complaint was made regarding the safeguarding concerns about AB, specifically that he was suffering ongoing emotional trauma because the appellant (British Transport Police) was maintaining false allegations against him. Bristol City Council requested a triggered review as to whether records should continue to be held. No such review was undertaken, the reason being that the appellant did not have sufficient resources.
In order to resolve the issues, the trial judge was entitled to make findings in relation to the underlying incidents in 2011 and 2014. That was relevant to the risk to the public posed by AB and hence to the proportionality balance.
In respect of the OSRs, there was an underlying difference between the parties. They contained a narrative of information that had been received by the police entered at the time, or soon after, it had been received. It was not assessed or graded. The accuracy of the data depended on what the police were told and what they did; it did not depend on what actually happened.
Did retention of the police records comply with Art 8 ECHR? It was common ground that the retention amounted to an interference with AB’s Art 8 rights. The appellant needed to show that the interference was justified as being (1) in accordance with the law and (2) proportionate to the aim of preventing crime.
There was an admitted failure by the appellant to comply with the requirement to carry out a triggered review. The asserted lack of resource was no answer; a lack of resource did not justify a failure to comply with an unqualified legal obligation.
His Lordship concluded, in respectful disagreement with the judge, that the OSRs were inaccurate but that was not fundamental to his decision that it was disproportionate to retain them. The appellant’s challenge to the proportionality assessment was,
The judge’s award of damages was well within the bracket identified by the appellant and there was no challenge to the award of aggravated damages.
Police records in the case were intended to reflect the information that was provided to the police rather than the underlying facts as to what happened. On the narrow extent that the appeal court concluded that the OSRs were accurate, the appeal succeeded.
It had not, however, been shown that the judge was wrong to conclude that the retention of records was a disproportionate interference with AB’s right to respect for private life, and the appeal against the judge’s declaration that the retention of the records was unlawful and his assessment of damages was dismissed.
[1] Self-stimulation, i.e. repetitive motor movements (e.g. rocking), use of objects or speech.