British tourists Hannah Witheridge and David Miller were brutally murdered on the Thai island of Koh Tao on 15 September 2014. Following an investigation by the Royal Thai Police, two Burmese nationals, Zaw Lin and Wai Phyo, were arrested and confessed. They subsequently retracted their confessions, alleging that they had been tortured. Following widespread media coverage of the crime and the investigation, the Prime Ministers of the UK and Thailand agreed that a team of officers from the Metropolitan Police would be despatched to Thailand to observe and review the Thai investigation.
The Metropolitan Police produced a report of their review for internal purposes, and verbally summarised their findings to the families of the victims. The Burmese suspects made subject access requests under the Data Protection Act 1998 for access to that report. They are now on trial in Thailand for rape and murder where, if convicted, they face the death penalty. The Metropolitan Police declined to supply any personal data on the basis that it was exempt under section 29(1), because disclosure would prejudice the criminal law enforcement purposes set out in the section. In particular, the Metropolitan Police relied upon an assurance they had been required to give the Royal Thai Police that they would keep any information seen confidential, other than to verbally report to the families.
In Lin & Phyo v Commissioner of Police for the Metropolis [2015] EWHC 2484 (QB) Green J delivered a lengthy and detailed judgment which dismissed the data protection claim and upheld the approach of the Metropolitan Police. He agreed that section 29 applied where the presence of the police in Thailand had been for family liaison purposes, and he carried out a balancing exercise in relation to the prejudice which might be suffered from disclosure. Green J accepted and gave considerable weight to the evidence of the Metropolitan Police that disclosure of information to defendants in Thai criminal proceedings would breach assurances of confidentiality, which would have a chilling effect on international law enforcement co-operation. Taken with the judge’s view that the data would not be of particular relevance to the claimants, this was sufficient to outweigh the general right of subject access and the specific death penalty context.
The judgment contains various comments and conclusions on aspects of the data protection regime in the 1998 Act and the Directive which are likely to repay careful reading.
Anya Proops and Christopher Knight appeared for the Commissioner of the Metropolitan Police.
The judgment can be read here.
