Data protection

Lin and another v Commissioner of Police for the Metropolis: Queen’s Bench Division: 25 August 2015 (Mr Justice Green)

Disclosure and inspection of documents – Disclosure against parties to proceedings – Data protection – Claimants being two Burmese men accused of murdering British citizens in Thailand – Report being prepared concerning Thai investigation by defendant Commissioner of Police for the Metropolis

In September 2014, two British tourists were murdered in Thailand. The claimants were two Burmese nationals living in Thailand. They were arrested and charged with the murders. The claimants confessed, but later retracted the confessions, stating that the confessions had been tortured out of them.

Were they to be found guilty, they faced the death penalty. Owing to misgivings about the conduct of the case, it was agreed that the defendant commander of police for the metropolis (the MPS) would send a team led by a senior officer to Thailand to conduct an independent inquiry. The British team compiled a report on the crime with which reassurance was provided to the families of the victims.

The report was in very large measure descriptive and contextual. It did not contain value judgments about the Thai authorities, nor did it comment qualitatively upon the Thai investigation in any material sense. It was largely general and summary in its references to the evidence. The claimants applied for disclosure of personal data contained in the report under section 7(9) of the Data Protection Act 1998 (the 1998 act). It was prima facie agreed that the claimants were entitled to disclosure of personal data about them contained in the disputed information unless the MPS could invoke an exemption from disclosure.

The first issue was where the burden of proof fell regarding proving the right to invoke the exemption. Secondly, whether the personal data in the report had been ‘processed’ for the purposes of (i) the prevention or detection of crime or (ii) the apprehension or prosecution of offenders. The claimants submitted that the personal data in the report was not subject to the exceptions in section 29 of the 1998 act because a purpose of family liaison was not a purpose for which exemption from disclosure could be claimed.

Thirdly, whether granting access would be likely to prejudice any of those matters. Consideration was given to Directive (EC) 95/46 (on the protection of individuals with regard to the processing of personal data and on the free movement of such data) (the Directive), which was implemented by the act.

The application would be dismissed.

(1) On the authorities, the burden of proof was upon the MPS to show its entitlement to refuse access, and it had to do that with significant and weighty grounds and evidence (see [85] of the judgment).

R (on the application of Lord) v Secretary of State for the Home Department [2003] EWHC 2073 (Admin) applied.

(2) The purpose of an investigation for the purpose of family liaison was within the scope of section 29 of the 1998 act. The paradigm case was where the foreign engagement was for the purpose of collecting evidence to be used in the English and Welsh jurisdiction as part of a criminal investigation or for advising and assisting in a foreign prosecution.

However, modern thinking was to accept that the criminal justice system was not exclusively about pursuing and punishing the guilty; it was also about protecting the victims, and that could include their families. First, in murder and other cases, impact statements were routinely accepted from the families and formed part of the evidential basis for sentencing.

Secondly, at the EU level, legislation had been adopted which explicitly recognised the position and standing of victims’ families in criminal proceedings. Thirdly, the rights of families were recognised as an important interest worthy of protection in cases where a person was under the control or custody of the state and died. One of the purposes behind the right of families to participate was to ensure that suspicion of deliberate wrongdoing, if justified, was allayed.

Fourthly, the Directive envisaged, at article 3, exceptions to the disclosure obligation in areas of criminal law. The personal data in the report was most certainly in that area. Fifthly, a general policy of treating families well was increasingly recognised as integral to a policy of engendering trust in prosecution authorities which, in turn, was crucial in creating a climate where victims and witnesses would come forward to the police and assist in enquiries (see [86]-[93] of the judgment).

The MPS, when it compiled the report, had been processing data for a legitimate purpose under section 29 of the 1998 act (see [94] of the judgment).

(3) It was apparent from section 7(9) of the act that the first task of the court was to determine whether the MPS had acted unlawfully. If the court so found, then it had to form its own judgment about the issues. Secondly, when a court exercised its own judgment under section 7(9) of the act, that power was general and untrammelled.

Thirdly, in applying the weighting/proportionality test, it was necessary to take fully into consideration that the present case was one involving the death penalty. On the facts of the case, it would be appropriate to apply an anxious and intensive review of the evidence and to accord the MPS no material margin of appreciation or discretion. Taking into account the relevant considerations, several observations were to be made about the personal data in the report.

First, the references were frequently brief, descriptive and broad brush. Secondly, there were exceptions where data was compiled in tabular form, but those were not much more than a series of terse statements in abbreviated form. Thirdly, a good deal of the personal data related to matters that would, at the present stage, add nothing to the sum of knowledge held by the defence team. Fourthly, to the extent that the personal data referred to such matters as whether the accused had had access to legal representation during interviews and/or translators, those were already matters within the knowledge of the claimants and their legal representatives in Thailand.

Fifthly, the personal data was not analytical and did not perform an evaluation of the prosecution evidence or case. Sixthly, there was no exculpatory personal data in the report (see [97]-[99], [124] of the judgment).

Ultimately, there was nothing in the personal data that would be of any real value to the claimants. There was no particular piece of information to which any really substantial weight could be set against the MPS’s objectives. The objections to disclosure raised by the MPS to defeat the application were valid (see [125] of the judgment).

Gerry Facenna, Julianne Kerr Morrison and Nikolaus Grubeck (instructed by Leigh Day) for the claimants; Anya Proops and Christopher Knight (instructed by Directorate of Legal Services, Metropolitan Police Service) for the MPS.