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Greater Manchester Police v Zuniga & Ors [2021] EWHC 1572

McFarlane P gives permission for GMP to hold a class of data in connection with cases determined in the Family jurisdiction.

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The Application

The applicant was the Chief Constable of Greater Manchester Police ('GMP'). GMP sought orders in respect of material already held by them relating to data manipulation at a forensic laboratory, which they sought to use for an ongoing criminal investigation [1].

The permission sought by GMP was an extension of the cooperation permitted by the 2013 Protocol, the only practical difference being that GMP's application was made in relation to a class of data, rather than on a case by case basis [18].

None of the respondents opposed GMP's application or chose to appear at this hearing [7].

Background

The GMP investigation, which commenced in 2017, was:


'[2]…into data manipulation by the seven respondents, who are the suspects in the case, at a forensic laboratory which, via two different companies consecutively operating at the laboratory, provided services to police forces for the purposes of identifying drug use. The forensics analysis hair, blood and urine for quantities of illegal substances, and the results provided, some of which were falsified, were used in criminal, family, coronial or employment cases'.

The GMP investigation was at a forensic laboratory across two different companies operating consecutively, which operated at the same Manchester testing centre, the Hexagon Tower [4]. The alleged activity said to have occurred between 2011 and 2017. Trimega Laboratories ('TL') operated from 2009 until they ceased trading in 2014 and were liquidated by KPMG. Randox Testing Services ('RTS') bought the equipment and methodology from TL upon its liquidation and operated from 2014 onwards [4].

The data manipulation first came to light in January 2017, when RTS contacted GMP following their discovery of data manipulation at Hexagon Tower. Both RTS and GMP began concurrent investigations, RTS having cooperated with GMP throughout [8].

The investigation uncovered 27,000 reports which appeared to have been affected. As a result therefore, potential injustices may have occurred from the data manipulation, being many and serious in nature [3].

The GMP investigation also concerned the data anomalies relating to two family court cases in particular: (i) "the Welch case"; and (ii) Bristol City Council v. A & A & Ors (2012) [9].

The issue before the court

HHJ Nicholas Dean QC granted an order in July 2020 under s.59 Criminal Justice and Police Act 2001, and a Production Order regarding material which had previously been lawfully obtained from KPMG [10]. As a result of those orders, the retention of the material at the time of this hearing was lawful regardless of the outcome of the application before McFarlane P in this case [10].

However, under s.22 PACE 1984, GMP could only hold the biometric material for as long as necessary in the circumstances, meaning not for a purpose other than criminal law enforcement (Per Lord Dyson X v X (Children) & A (Local Authority) [2015] EWCA Civ 34, [46]). Therefore, GMP now sought permission to use and hold the information without such a limitation, including if the material was not used [10].

Some of the information in question had been used in family cases, meaning that FPR 2010 r.12.73 and FPR 2010 r.12.75 came into play, both of which restrict the communication of information. In particular, preventing the communication of test results beyond the parties to the proceedings [11]. Permission to share the information with the police was therefore required [12].

McFarlane P observed that:


'[14]… the granting of these orders requires careful consideration. Following Marper v. United Kingdom [2008] ECHR 1581 [67] and X v. Z & A [31], retention, use, and disclosure of biometric data interferes with an individual's Article 8 rights. Holding data of such a personal nature is of critical sensitivity…

[15]…This is a unique case. Once GMP have directed the case towards a prosecution, much of the material concerned would not then be able to be held under s.22. it is not hard to imagine the circumstances where this data would be sought by an individual concerned, given the size of the affected data, and the nature of the proceedings in which it was involved. There are likely to be criminal, family, coronial and employment cases, previously decided, which parties may wish to revisit on the basis of faulty data. The importance of this is hard to overstate. It concerns miscarriages of justice which may have occurred in reliance on what are now known to be erroneous drugs testing results. It is instructive that where material has been handed to GMP by RTS, RTS has approached the parties involved for their consent and it has not been refused in any such case'


McFarlane P records GMP's submissions that: (i) the data in question was not "primary material" such as that gathered by police at a crime scene, but rather under the control of the Family Courts. It therefore could not be considered solely by reference to the criminal investigation rules [16]; and (ii) secondly, the application is necessary for practical purposes. The alternative being for GMP to apply for permission for each case, or each circuit, which it was argued would be a disproportionate burden on court resources given the volume of data concerned [17].

The President concluded that:


'[18]… Given the number of people affected who may require these materials at some point, it is important that it is retained. The alternative would allow for individuals concerned to access the material produced for court, but not the background material which demonstrates the data manipulation. In my judgment there is no viable alternative to allowing the data to be held by GMP which would allow the individuals concerned access to the material needed to demonstrate a miscarriage of justice.'


The court granted the orders sought by GMP, the case to be retained by the President of the Family Division for review of the data retention every 12 months [19 & 20]. An amendment was made such that the identity of individuals was only to be revealed in criminal trials if that individual had consented to it [20].

Case summary by Bethany Scarsbrook, Barrister, St John's Chambers

For full case, please see BAILII