The Administrative Court has recently given its decision in Catt v The Commissioner of Police of the Metropolis  EWHC 1471 (Admin).
The decision is an important one dealing with whether the police’s retention of a protestor’s data was an infringement of his rights under Article 8 of the European Convention on Human Rights (ECHR).
The claimant, an elderly individual with a long history of political protest, had attended various demonstrations and regular protests by a group called “Smash EDO”, an organisation that was seeking the closure of a US arms manufacturer’s factory in Brighton. Although many of the individuals attending Smash EDO’s protests did not commit criminal offences, disorder and criminality was a feature of a number of the protests requiring a substantial police presence. At these protests, the police overtly gathered information (including photographs and video material), from which they then compiled reports, identifying a number of individuals. These reports were then retained under the statutory Code of Practice on the Management of Police Information (made under the Police Acts 1996 and 1997) and associated guidance on the management of police information.
Although the claimant had never engaged in criminal acts and was of good character, he discovered as a result of a subject access request made under the Data Protection Act 1998 (DPA 1998), that there were 66 entries relating to him in the police reports. He therefore issued proceedings on the basis that the retention of data:
- Engaged and violated his rights under Article 8 of the ECHR and was neither a necessary nor proportionate response to the achievement of any legitimate aim.
- Did not comply with the requirements of the DPA 1998.
In the course of the hearing, the issues were clarified and significantly narrowed particularly in the context of the relationship between Article 8 of the ECHR and the DPA 1998. Although all the parties accepted that theoretically the DPA 1998 was engaged in the claim, the claimant recognised that if his Article 8 claim succeeded, the DPA 1998 element of the claim was unnecessary. If Article 8(1) of the ECHR was engaged, but the interference with his right was justified under Article 8(2), then the DPA element of the claim would automatically fail. If Article 8 was not engaged, the prospects of the claimant succeeding solely under the DPA ground were remote (which the claimant accepted and led to him dropping the DPA element of his claim).
Therefore, the issues for the Administrative Court to decide were:
- Did the collation and retention of the reports engage Article 8.1 of the ECHR and, if so, did this interfere with the claimant’s Article 8.1 rights?.
- If so, was the interference justified under Article 8.2?.
On the first issue of the potential engagement of and interference with Article 8.1, based on the following three findings, the Administrative Court’s answer to both questions was “no”. The court:
- Accepted there was a need for the police to retain such information, given the use of such intelligence is a fundamental policing tool. Investigators need to be able to identify relationships within protest groups. Even though the claimant had not been convicted of any offence, the court accepted that his close association with violent members of Smash EDO and the police’s knowledge of this association had an intelligence value and formed part of a wider picture of background information.
- Considered that the essential nature of a protestor’s activity is its public nature, given that its object is to make others aware of the protestor’s views and the causes to which he lends support.
- Concluded it was reasonable, given the violent disorder of Smash EDO’s activities, to expect the police to gather and retain the information that it did, particularly as the information had been gathered overtly (rather than covertly).
Given these findings, the Administrative Court concluded that the claimant’s rights under Article 8.1 of the ECHR were not engaged at all. Although the claimant sought to rely on the decision in R (Wood) v Commissioner of Police of the Metropolis  1 EWCA Civ 414, as authority for his case that the retention of the information breached his Article 8 rights, this was rejected by the court. As the court pointed out, the facts in Wood were very different from the claimant’s situation. In Wood, the campaigner, who was employed by an association that campaigned against the arms trade, had attended the annual general meeting of a company organising trade fairs for the arms industry and been photographed by the police leaving the hotel after the meeting. The police’s action therefore amounted to a sufficient intrusion into the individual’s own space as to constitute a violation of Article 8.1 whereas in the claimant’s case, the court considered it would be “unreal and unrealistic” to find an infringement of Article 8.1. For more information on the decision in Wood, see Legal update, Court of Appeal rules police photographs infringed protester’s privacy rights.
On the second issue of whether the interference was justified, the court concluded that the retention of the data was justified under Article 8.2, even if there had been an interference with the claimant’s rights under Article 8.1. In weighing the balance, the court considered that any interference with the claimant’s Article 8.1 rights was “at the margins”, involving no more than recording his presence at various demonstrations and what he had been doing. Against that, the demonstrations of Smash EDO involved significant public disorder and a similarly significant impact on EDO and its employees and the police took the view that the data should be retained as intelligence for the purpose of policing those events. Therefore, the court had no hesitation in concluding that any interference with the claimant’s rights was justified under Article 8.2 of the ECHR as:
- The police actions were taken in pursuance of the legitimate aim of preventing disorder or crime and protecting the rights and freedoms of others.
- The actions were taken in accordance with the law.
- The compiling and retention of the reports was proportionate to the legitimate aim pursued and was therefore necessary in a democratic society.
The claim was therefore dismissed.
Interestingly, the police did indicate to the court that as and when the Smash EDO campaign ended it would review the information held on the claimant which the court indicated would be appropriate. However, the court qualified its response by considering that even then it might be justifiable for the police to retain some or all of this information, given that connections appeared to exist between Smash EDO and parts of the animal rights movement. The decision therefore is an important one for the police force in relation to its ability to develop and retain its intelligence on protest groups without infringing Article 8 of the ECHR.
For more information on the scope of Article 8 of the ECHR, see Practice note, Article 8 of the ECHR: right to respect for private and family life.