MM v The United Kingdom: ECHR 13 Nov 2012

ECHR The applicant complained about the retention and disclosure in the context of a criminal record check of data concerning a caution she received from the police. he applicant, who lived in Northern Ireland, was a baby’s paternal grandmother and was distressed at the prospect of the mother’s removal of him to her native Australia. In order, apparently, to induce the mother and her son to reconcile their differences, the grandmother disappeared with the baby for more than a day. She accepted a caution for the offence of child abduction on the basis that, as the Northern Ireland police assured her in accordance with what was then their practice, the caution would be deleted from her record after five years, namely in 2005. At around that time, however, the Northern Ireland police changed their practice so as to retain adult cautions on file indefinitely and, in that year, they disclosed it to a potential employer of MM, who, in consequence, did not offer her employment.Held: The Strasbourg court criticised the ‘generous approach’ of the law of the United Kingdom to the exercise of police power to retain personal data even before disclosure
The ECHR explained its conclusion that the Northern Ireland police had violated the grandmother’s rights under article 8: ‘In the present case, the court highlights the absence of a clear legislative framework for the collection and storage of data, and the lack of clarity as to the scope, extent and restrictions of the common law powers of the police to retain and disclose caution data. It further refers to the absence of any mechanism for independent review of a decision to retain or disclose data, either under common law police powers or pursuant to Part V of the 1997 Act. Finally, the Court notes the limited filtering arrangements in respect of disclosures made under the provisions of the 1997 Act: as regards mandatory disclosure under section 113A, no distinction is made on the basis of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought.
The cumulative effect of these shortcomings is that the court is not satisfied that there were, and are, sufficient safeguards in the system for retention and disclosure of criminal record data to ensure that data relating to the applicant’s private life have not been, and will not be, disclosed in violation of her right to respect for her private life. The retention and disclosure of the applicant’s caution data accordingly cannot be regarded as being in accordance with the law. There has therefore been a violation of article 8 of the Convention in the present case. This conclusion obviates the need for the court to determine whether the interference was ‘necessary in a democratic society’ for one of the aims enumerated therein.’

Lech Garlicki, P
24029/07 – HEJUD, [2012] ECHR 1906
European Convention on Human Rights 8, Police Act 1997
Human Rights
See AlsoMM v The United Kingdom ECHR 6-Oct-2010
. .

Cited by:
CitedCatt and T, Regina (on The Applications of) v Commissioner of Police of The Metropolis SC 4-Mar-2015
Police Data Retention Justifiable
The appellants challenged the collection of data by the police, alleging that its retention interfered with their Article 8 rights. C complained of the retention of records of his lawful activities attending political demonstrations, and T . .
CitedT and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
CitedBeghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .
CitedAB v Her Majesty’s Advocate SC 5-Apr-2017
This appeal is concerned with a challenge to the legality of legislation of the Scottish Parliament which deprives a person, A, who is accused of sexual activity with an under-aged person, B, of the defence that he or she reasonably believed that B . .
CitedGallagher for Judicial Review (NI) SC 30-Jan-2019
Disclosure of older minor offences to employers 48 . .
CitedGallagher for Judicial Review (NI) SC 30-Jan-2019
Disclosure of older minor offences to employers 48 . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 02 January 2022; Ref: scu.465773