GDPR and the potential impact on misconduct investigations

13 March 2019

The implementation of the GDPR has resulted in strengthening of data protection legislation and the rights of individuals in terms of how personal data is processed.

What impact might this have for the way individual officers are investigated for alleged misconduct breaches and for officers who have items containing personal data seized or retained?

Criminal investigations can give rise to specific powers, such as covert surveillance and seizure of personal property, which are not available to those investigating misconduct offences. Federation representatives and misconduct lawyers should be alert to and challenge scenarios where a misconduct investigation is taking place under the pretence of a criminal enquiry.

Under the GDPR, personal data can only be collected for a specified and legitimate purpose and its collection must be limited to what’s necessary. Necessity and the ‘necessity test’ is one of the main threads running through the Information Commissioner’s Office (ICO) Guidance on the GDPR.

Breach of GDPR will not in itself give rise to the automatic exclusion of any evidence obtained or retained as a result, but may assist a legal argument on the point.

The GDPR give the ICO the power to impose administrative fines –up to €20 million or 4% of annual turnover, whichever is higher. Compensation for breaches can also be sought from the data controller. The potential penalties and risk to the outcome of an investigation should be a sharp reminder to PSD and IOPC investigators as to the inappropriateness of the so called ‘fishing trip’ mentality.

There will of course be cases where it will be appropriate to challenge the actions and intentions of investigators and it should always be remembered that the officer under investigation does not automatically lose their rights and protections in terms of personal data.

Please contact your police federation representative in the first instance if you require legal assistance for a misconduct matter.

Rob Newbould 
Senior Associate in Criminal and Misconduct Law at Slater and Gordon