Subject-access Requests: Crime Exemption, Proportionality and Procedure

August 25, 2015

The 2014 murders of British tourists David Miller and Hannah Witheridge in Thailand led to a police investigation which caused concern in the UK. As a result of that concern, and especially the concerns of the victims’ families, the government asked the Metropolitan Police to create a report on the investigation. In compiling that report, Detective Chief Inspector Lyons of the Met Police travelled to Thailand, consulted the Thai police and made observations of his own. Lin & Anor v Commissioner of Police for the Metropolis [2015] EWHC 2484 (QB) is concerned with a subject-access request from the defendants on trial for those murders; they sought access to the personal data in the report of DCI Lyons. It was accepted that the report contained relevant personal data (though the extent to which the report constituted personal data was disputed) but the Met Police contended that it was subject to exemption under the Data Protection Act 1998, s 29 – the ‘crime exemption’.

In a very lengthy judgment, Mr Justice Green supports the Met Police objection and refuses the request for disclosure. He identifies the issues to be addressed (at [81] et seq) as follows:

Issue I: Who has the burden of proof of proving both the right to invoke the exemption? What is the standard of proof?

Green J referred to R (Lord) v Secretary of State of the Home Department [2003] EWHC 2073 (Admin) where it was held that, because of the importance attached to the rights of the individual, it was the data controller who had the burden of proof to establish the right to refuse access and that the standard of proof was a relatively high one. He was clear that the Met Police had the burden of proof.

Issue II: Was the personal data in the MPS report ‘processed’ for purposes of (a) the prevention or detection of crime or (b) the apprehension or prosecution of offenders?

In claiming that the exemption did not apply, the claimants had pointed out that the report was really an exercise in family liaison rather than investigation. Green J flet that this was too narrow an approach: ‘modern thinking is to accept that the criminal justice system is not exclusively about pursuing and punishing the guilty; it is also about protecting the victims and this can include their families‘ (at [87]). He relied on a purposive construction of s 29 to rule that the processing was indeed subject to the exemption.

Issue III: Would granting access be likely to prejudice any of those purposes?

This was what Green J described as the ‘weighing, proportionality, exercise‘ but it was complicated by the fact that the claimants were involved in a trial that might result in them receiving the death penalty. The ‘chilling effect’ on future co-operation between UK police authorities and foreign police forces was clearly given the most weight here but Green J pointed out that there was no question of the entire report being disclosed and that he had to apply the proportionality test to each item of personal data. But ‘[i]f I order disclosure of the personal data I would risk giving a sliver of the Report which might be misleading because it is taken out of context‘.

Mr Justice Green observes (at [115]):

‘In my view this case ultimately turns upon the intrinsic relevance of the personal data to the defence in the criminal proceedings when set against the interests of the MPS in non-disclosure. The crux of the matter is to take each individual item of personal data and determine whether it is such that it could in any realistic sense provide support for the defence. If a particular piece of personal data does have this quality then it must be balanced against the interests of the MPS. Such a piece of data will attract considerable weight in the scales but there are yet weighty counter points to be placed on the other side of the scales. A delicate balancing exercise then ensues’.

He went on to conclude (at [125]):

‘My ultimate conclusion is that there is nothing in the personal data which would be of any real value to the Claimants. I have not identified any particular piece of information to which I would attribute any really substantial weight to be set against the MPS’s objectives. As such I accept that the objections to disclosure raised by the MPS to defeat the application are valid and, on the facts of the case, suffice to outweigh the claimants’ otherwise strong interest in access.

Procedural Difficulties

Though the facts of Lin v Commissioner of Police for the Metropolis are fascinating, the circumstances are so unusual that the case might be considered to be of little help as a precedent, at least in terms of the proportionality exercise. But the procedural difficulties that were encountered by virtue of the fact the claimants were unable to see the report while arguing for the importance of its disclosure are not confined to such circumstances. The ‘confidentiality ring’ was not appropriate to a death penalty case and, in any event the Met Police, would have refused to disclose the report to the claimants’ advocates on that basis. It was even suggested by the Met Police that, if serious questions were posed about individual items of information, the judge could do so in a closed hearing which would entail the public and the claimants being excluded. As Green J observed:

‘I do … have an objection to using a closed procedure from the perspective of natural justice, heightened in a case such as this involving the death penalty. I can conceive of little which is more inimical to the perception and practice of open and fair justice than that the Judge should be alone in a court with a State body discussing whether a death penalty accused should receive or be denied (potentially relevant) disclosure in circumstances where the lawyers of the accused were excluded from the dialogue.’

It was not considered appropriate to use a special advocate because of the urgency of the proceedings but that was something that Green J might have considered in the absence of such urgency.

Clearly Mr Justice Green was concerned that he was left to guess the importance to the trial of the personal data in the report. He did ‘not have a true “hands on” feel for the way the evidence has been tendered in the trial to date or how the accused might structure their defences‘ and he found the process uncomfortable.