Rowlands v CC of Merseyside Police [2006] EWCA Civ 1773

A woman was arrested and photographed, but the charges were dropped. The police refused to destroy her photo. The court held that police have a common law power to retain photographs of unconvicted individuals for crime prevention purposes, which was proportionate.

Facts

The appellant, Mrs Rowlands, was arrested by Merseyside Police on suspicion of harassing her neighbour. In accordance with standard procedure, her photograph was taken at the police station. Subsequently, the Crown Prosecution Service decided not to proceed with the charges against her. Mrs Rowlands then requested that the police destroy the photograph. The Chief Constable of Merseyside Police refused, citing a force policy to retain such photographs for general policing purposes, including crime prevention and investigation. Mrs Rowlands brought a claim seeking a mandatory injunction for the destruction of the photograph and damages, arguing that its retention was unlawful and a breach of her right to a private life under Article 8 of the European Convention on Human Rights (ECHR).

Issues

The central legal issues before the Court of Appeal were:

1. Whether the police had the lawful authority, in the absence of a specific statutory power, to retain the photograph of a person who had been arrested but was not subsequently cautioned or convicted of any offence.
2. If such a power existed, whether its exercise in this case constituted a justifiable interference with the appellant’s Article 8 right to respect for her private life.

Judgment

The Court of Appeal unanimously dismissed the appeal, upholding the High Court’s decision in favour of the police. Lord Justice Carnwath gave the leading judgment.

The existence of a common law power

The court held that the police possess a common law power to retain photographs taken following a lawful arrest. This power is ancillary to their fundamental duty to prevent and detect crime. Carnwath LJ distinguished this case from cases concerning the retention of fingerprints and DNA samples (such as S and Marper v Chief Constable of South Yorkshire), where Parliament had created a specific and detailed statutory scheme. In the absence of such a scheme for photographs, the court looked to the general common law powers of the police.

"In my view, the judge was right to accept the existence of such a power at common law. The correct starting point is the statement of the general common law duties and powers of the police by Lord Hope in the House of Lords in R v Chief Constable of Sussex, ex p Simon International plc [1999] AC 42, 490."

The court reasoned that the taking of a photograph was a legitimate part of the arrest and detention process, and its retention served the ongoing public interest in maintaining a database to assist in future investigations.

Article 8 ECHR Analysis

The court then considered whether the retention of the photograph was compatible with Article 8. It was accepted that retaining the photograph constituted an interference with Mrs Rowlands’ right to a private life.

The judgment then assessed whether the interference was justified under Article 8(2). It had to be ‘in accordance with the law’, for a legitimate aim, and ‘necessary in a democratic society’.

• In accordance with the law: The court found that the established common law power was sufficiently clear, accessible, and foreseeable to meet this requirement.
• Legitimate aim: The retention was for the legitimate aim of preventing crime and protecting the rights and freedoms of others.
• Necessary and proportionate: This was the critical part of the analysis. The court had to balance the public interest in retaining the photograph against the individual’s right to privacy. Carnwath LJ found the police policy to be rational and proportionate. The interference was seen as relatively minor compared to the utility of the photograph for future crime prevention and detection. He noted that the policy itself contained safeguards, and the retention was not indefinite but for a defined period.

"In my view, the balance adopted by the police was one which they were reasonably entitled to adopt, and it is not for the court to interfere."

Lord Justice Hughes and the Master of the Rolls, Sir Anthony Clarke, agreed with this reasoning, adding that the retention of a simple photograph was a less intrusive measure than the retention of DNA or fingerprint data.

Implications

The decision in Rowlands confirmed that police in England and Wales have a common law power to retain custody photographs of individuals who have been arrested but not convicted. It established that, in the absence of a specific statutory framework, the exercise of this power is lawful provided it is a proportionate measure under Article 8 of the ECHR. The ruling gave significant weight to the operational judgment of the police in balancing individual privacy against the public interest in tackling crime. It is noteworthy, however, that this domestic judgment predates the later Grand Chamber ruling in S and Marper v United Kingdom (2008), which found that the blanket and indiscriminate retention of DNA profiles and fingerprints from unconvicted individuals was a violation of Article 8.

Verdict: The appeal was dismissed.

Source: Rowlands v CC of Merseyside Police [2006] EWCA Civ 1773