Lord Clark

About this case:

• Citation:
  [2022] CSOH 55
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Clark

Robert Bartosik, who also sought damages for the distress caused by Police Scotland’s failure to erase the information, argued that there was no reason that the record, which he said contained false information about him, should be kept. The respondent’s position was that a record of the information was required to be maintained, albeit for restricted purposes, for a period following the report.

The petition was heard by Lord Clark in the Outer House of the Court of Session. The petitioner appeared as a party litigant while the respondent was represented by Fraser, advocate.

Mistaken for another man

On 5 May 2020 the petitioner attended Gorbals Police Station in Glasgow and handed in a victim statement alleging eight instances in which individuals had failed to pay him after getting in his taxi. He later submitted a complaint to Police Scotland stating that they had failed to record and investigate the taxi frauds or respond to his report, which resulted in an investigation into the complaint being carried out.

By letter dated 16 December 2020, the investigating officer wrote to the petitioner to set out his complaint as well as a reference to what had been said in a statement by a Public Enquiry Support Assistant at Gorbals Police Office. The reference included things said by the PESA about the petitioner which had no direct bearing on the complaint made by the petitioner about the taxi frauds, which included comments she had made to him before he entered the station about his partner and custody of his child.

It was the inclusion of this information in police records that was challenged by the petitioner. The PESA later made a second statement to say that she now believed she had mistaken the petitioner for another man and in fact had never met him before he attended Gorbals Police Station.

After further correspondence, the petitioner sent a formal request for erasure of the challenged information in March 2021. The request was refused by letter dated 1 April 2021 on the grounds that the statement of the PESA had been processed for law enforcement purposes and formed part of the official record of the petitioner’s complaint against the police. The petitioner denied having received this letter and claimed he only learned about it when it was lodged in process.

The petitioner submitted that, as he had not received the email containing the letter of 1 April 2021 within a month of his erasure request, the respondent was in breach of sections 48(2) and 54(2) of the 2018 Act. In any event, the refusal of his request was in breach of sections 37 and 38 of the Act as the information did not concern his person and interfered with his private life.

Part of a witness statement

In his decision, Lord Clark said of the communication of the refusal decision: “I conclude that the email sent on 1 April 2021 attaching the letter refusing the petitioner’s request for erasure was sent to the email address he had used eight days before and that he stated should be the means of informing him. If the position is that in that eight day period he changed his email address, there is no suggestion that he told the respondent he had done so during that time.”

He continued: “The only evidence is that it was several months 10 later that he told them. Nor was there any suggestion that the email, had, as it were, bounced back to the respondent as undelivered. In all of these circumstances, I am satisfied that sending an email to the petitioner’s email address, stipulated by him as the means by which he was to be contacted, complied with the statutory requirement to inform him.”

Turning to the petitioner’s section 37-38 case, Lord Clark said: “The police will not retrospectively alter a witness statement even if the court has found it to be unreliable. Accordingly, as the challenged information formed part of statement by a witness there is no basis for the petitioner’s contention that it required to be erased because it was inaccurate. The decision was also based upon the information available at that time which did not include that the challenged information from the PESA’s statement was accepted as inaccurate.”

He went on to say: “if that conclusion is incorrect, either because the PESA’s comments should not be viewed as being in a witness statement, or that the requirement for accuracy of the data should nonetheless be applied, the data still required to be maintained for the purposes of evidence in relation to the petitioner’s complaint about the investigation of taxi frauds. It is open to argument that in those circumstances processing of the data would require to have been restricted. This is, however, academic for present purposes.”

Lord Clark concluded, addressing compensation: “The part of the PESA’s statement that is incorrect contains no particular negative connotations about the petitioner and indeed is innocuous. It is hard to see why it would cause distress to the petitioner. He relied upon the possibility of it being disclosed to, for example, an employer but given the restrictions on processing that cannot occur and indeed it is difficult to see if it ever could have occurred. The data can now be viewed only in relation to the complaint against the police. Moreover, it is not possible to see how someone could draw, as the petitioner suggests, some conclusion about lack of trust in the petitioner from the data.”

The petition was therefore refused.