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01 Dec 2014

INTERPOL and the National Crime Agency

The recent case of T v National Crime Agency [2014] EWHC 3551 (Admin) offers a revealing glimpse into the frequently clandestine workings of INTERPOL and its relationship with the National Crime Agency (“NCA”), which acts as INTERPOL’s liaison point (or so-called National Control Bureau (“NCB”)) in the UK.

The applicant was a Russian national granted asylum in the UK in 2005. He has, over a number of years, been the subject of repeated attempts by the Russian authorities to extradite him from the UK to face criminal proceedings in Russia. Whilst none of these attempts has proved successful, in 2011 a Russian court convicted him in his absence of embezzlement and money laundering arising out of the Yukos affair. He has also been the subject of a number of INTERPOL red notices and INTERPOL diffusion notices, which the NCA’s predecessors processed at INTERPOL’s behest.

The applicant brought a claim under sections 10 and 14 of the Data Protection Act 1998 (“DPA”) seeking to stop the NCA from further processing his personal data and/or to rectify, block, erase or delete his personal data, including the data relevant to the red and diffusion notices, and for damages pursuant to section 13 of the DPA and section 8 of the Human Rights Act 1998. He claimed that his status as a refugee made such processing unwarranted. The NCA sought to have the proceedings struck out and/or sought summary judgment. The Judge rejected the NCA’s application, holding that the claims brought by the applicant raised issues of importance which should be investigated and resolved at trial.

For lawyers who routinely deal with INTERPOL, there are three interesting issues arising from the Court’s judgment. Each of those issues relates to a different entity in the “INTERPOL food chain”: the requesting state which seeks information about an individual; the Commission for the Control of INTERPOL’s file (CCF); and the NCB in the country in which the individual resides.

First, the Court referred to the fact that the requesting state (Russia) had issued a number of diffusion notices for the applicant. Historically, diffusion notices were a relatively obscure tool available to INTERPOL members, but in this firm’s experience, they are becoming increasingly widespread. In contrast to red notices, which are sent first to the INTERPOL General Secretariat, and are published and circulated by INTERPOL only following a review by the General Secretariat, diffusion is a request for police cooperation that is sent directly between countries and is subject to the discretion of the requesting state. Diffusion requests may or may not copy in INTERPOL. They can therefore be deployed where INTERPOL’s conditions for publication of a red notice have not been fulfilled. Whilst INTERPOL has stated that a diffusion notice cannot be issued in a case which does not comply with its Constitution of Rules for the Processing of Data, the reality is that this principle relies uncritically upon the good faith of the state issuing the diffusion notice. Because a diffusion notice can bypass the internal scrutiny of the General Secretariat, an INTERPOL member has the potential to cause injustice by issuing a diffusion notice in cases which may be politically motivated, or which arise from disputes which are inherently civil rather than criminal in nature. Whilst an individual can challenge a diffusion notice before the CCIF, the damage will already have been done if and when the CCIF resolves to cancel it.

Second, the judgment reveals the history of the applicant’s unsuccessful attempts to challenge the red and diffusion notices by writing to the CCF. In December 2012 the applicant applied to the CCF, seeking access to all personal data relating to him which was held by INTERPOL and for the correction/deletion of this data. This challenge was made on the basis that, because the Russian criminal proceedings had been held in his UK asylum application to be politically motivated, INTERPOL was acting in violation of Article 3 of its Constitution, which prohibits INTERPOL from undertaking “any intervention or activities of a political, military, religious or racial character”. In April 2014 the applicant was informed that this application had been unsuccessful, the CCF apparently arguing that whilst there were “political elements surrounding the case”, the proceedings were not “predominantly political in nature”. This somewhat surprising conclusion demonstrates that a finding of refugee status, and by analogy findings that an individual should not be extradited on account of the political character of the extradition request, are insufficient in themselves to persuade the CCF that INTERPOL is in violation of its guiding obligation of neutrality, even though INTERPOL is, in effect, supporting criminal proceedings in relation to which an individual has already established a well-founded fear of persecution. This reinforces the lesson that applications for removal of a red notice, whilst not impossible, remain difficult, even where an individual can adduce independent executive or judicial findings which would otherwise support a case of political motivation. INTERPOL has recently said that, in assessing challenges brought by individuals who seek the removal of their red notices, it is looking for evidence that a requesting state has acted in breach of an international obligation, rather than merely a breach of its domestic law. However, evidence of this nature is extraordinarily difficult to obtain. In practice, the best evidence likely to be available to an applicant is a positive determination of asylum or extradition in his country of residence: these domestic judgments should carry significant probative value before the CCF.

Third, the judgment throws a spotlight onto the accountability of the NCB in the country in which the individual resides. The NCA contended that in processing red and diffusion notices at INTERPOL’s behest, it was merely “acting as a conduit” between INTERPOL, the NCBs and other UK authorities, as it was obliged to do under UK law, and that the applicant’s asylum status did not remove this obligation. Furthermore, the NCA argued that since one purpose of the processing was the prevention or detection of crime, the applicant’s personal data was exempt from the non-disclosure provisions of the DPA. However, the Court held that it was clear that NCA could not regard itself as a “mere conduit” and that it was subject to, and applied the principles of, the duties of a public authority under Article 8 of the ECHR, and that the question as to whether the DPA exemptions applied was not straightforward and should be explored at trial. When this matter is explored at trial, it will be interesting to see the extent to which the Court may seek to define a margin of discretion within which the NCB can refuse to act on instructions communicated through INTERPOL.

What therefore is the lesson from the judgment? For obvious reasons, the subject of a red notice is unlikely to be able to persuade the prosecuting authorities or the courts of the country which issued the red notice to cancel it. Likewise, the CCF is regularly derided for providing a wholly inadequate means of redress: as demonstrated in the applicant’s case, it remains slow, opaque and offers no opportunity to challenge the assertions being made by the requesting state in a transparent and properly contested fashion. The good news, however, is that this judgment shows that the final link in the INTERPOL food chain – the NCB in the country in which the individual resides – may in the future become a more fertile area of challenge. The outcome of the applicant’s challenge to the NCA should be awaited with interest.

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