SOCA’s use of police material in investigating conduct was fair and lawful


Re: Cooper v National Crime Agency [2019] EWCA Civ 16

The claimant, who was employed by the Serious Organised Crime Agency, was dismissed for gross misconduct following an incident outside work, which also led to criminal proceedings and conviction. The conviction was overturned on appeal. In investigating the claimant’s conduct for disciplinary, security clearance and other SOCA purposes, SOCA relied on evidence as to the incident provided by the arresting police force. The claimant was unsuccessful in an unfair dismissal claim at an employment tribunal and on appeal to the EAT. He separately brought, and lost, a claim in the Central London County Court for £800,000 damages alleging that SOCA’s processing of his sensitive personal data, in using the police material, was a breach of the Data Protection Act 1998 because it was not for a use for law enforcement purposes.

The claimant appealed both decisions to the Court of Appeal and both appeals were dismissed. The NCA cross-appealed against the EAT’s decision to remit the question of whether there was a special reason why SOCA should have delayed disciplinary proceedings until after the criminal proceedings. The cross-appeal was also dismissed. In dismissing the CLCC claim the Court held, inter alia, that SOCA’s use of the police material was fair and lawful and satisfied a number of the conditions in Schs 2 and 3 to the 1998 Act including contractual consent, compliance with legal obligations, the exercise of functions conferred by statute and the purpose of establishing, exercising or defending legal rights.

Catrin Evans QC was involved in this case.