In the recent case of The Queen (on the application of John Oldroyd Catt) v
The Association of Chief Police Officers and the Commissioner of Police of the Metropolis the Court of Appeal held that a protestor’s right to privacy under Article 8 of the European Convention on Human Rights had been breached
by the respondents.
The facts
Mr Catt, an 88 year old male, had been a frequent protestor against what he
considered a variety of forms of injustice. He had attended a number of
public demonstrations, which included those organised by “Smash EDO”, a
protest group campaigning for the closure of EDO; a US owned arms company
with a factory in Brighton. Some of the core supporters of Smash EDO are
prone to violence and criminal behaviour, which led to a substantial police
presence at EDO protests and numerous arrests having been made. It was
accepted, however, that Mr Catt had not been convicted of any criminal
conduct of any kind in connection with any of the demonstrations that he had
attended.
Police officers in attendance at Smash EDO protests recorded what they
observed and sometimes supplemented this with photographs and video
recordings. This information was duly stored on the National Domestic
Extremism Database (a database maintained by the National Public Order
Intelligence Unit, for whom the first respondent was originally responsible
and the second respondent is currently responsible). Mr Catt became aware
that his details were included on the database and made a subject access
request. The respondents disclosed 66 entries in respect of Mr Catt spanning
March 2005 to October 2009. Mr Catt was never the specific target of any
observations, but was referred to incidentally. One typical example is:
“The following protestors were identified as attending: John CATT (frame 63.
Elderly male with grey hair and glasses)”
Mr Catt alleged that the information held on the database was of a personal
and private nature and that its retention was an unlawful breach of his
right to privacy. He sought judicial review of the respondents’ retention of
the data.
The law
Article 8 of the European Convention on Human Rights provides that everyone
has the right to respect for their private life and that:
- “There shall be no interference by a public body authority with the
exercise of this right except such as is in accordance with the law and is
necessary in a democratic society in the interests of national security [or]
public safety…for the prevention of disorder or crime…or for the
protection of the rights and freedoms of others”
In this case, it was not in dispute that in order to justify an interference
with Article 8 rights, the state was required to demonstrate that the
conduct in question satisfied three requirements:
i. it is in accordance with the law;
ii. it is carried out in pursuit of a legitimate aim; and
iii. the interference is proportionate to the aim sought to be achieved.
The Divisional Court held that the information was of a public rather than
private nature as it was obtained at public demonstrations. Accordingly,
there could be no infringement of his Article 8 rights. In any event, the
court held the view (obiter) that, even if the data had of been of a private
nature, it was justified under Article 8(2). Mr Catt appealed against the
decision.
The Court of Appeal Decision
The Court of Appeal allowed Mr Catt’s appeal and held that the retention of
this information was in breach of his Article 8 rights.
In reaching this decision the court considered that “private life” is a
broad term and not capable of exhaustive definition. The processing and
retention of even publicly available information may involve an interference
with the subject’s rights. As the information held on Mr Catt included his
name, age, appearance and history of attending political demonstrations, the
court was satisfied that the information was of a private nature and so
interfered with Mr Catt’s Article 8 rights.
In considering whether this infringement was justified, the court considered
the following:
It was clear that the respondent’s actions were in pursuit of a legitimate
aim; namely the prevention of disorder or crime and the protection of the
rights and freedoms of others.
It was accepted that the demonstrations would attract significant police
presence and that the police could be expected to watch what takes place at
demonstrations and to compile reports, photographic and written, for
retention in intelligence-gathering activities.
. Proportionality must be judged by reference to the facts of a particular
case. In this instance:
The information held on Mr Catt was of a very limited nature. There was
nothing to suggest that he encouraged criminality or public disorder, much
less that he engaged in it.
It was clear that police recorded the name of anyone they could identify
at such demonstrations, regardless of the nature of their participation.
The rules governing the database required information to be retained for a
minimum of six years, after which there should be a review. There is then a
presumption in favour of retention. Records relating to the lowest level of
offending may be automatically disposed of after a defined period rather
than reviewed (Mr Catt fell into this category).
o It was not easy to understand how the information held on Mr Catt could
provide any useful assistance to the police. The respondents had not
identified an instance where the information had, in fact, been of any
assistance at all.
The burden of proving that the interference was justified rests on the
respondent. On these particular facts, the respondents had not shown that
the value of the information was sufficient to justify its continued
retention.
. As the interference was not justified, there was no need to consider
whether it was in accordance with the law.
Going forward
It is evident that when determining whether the retention of information
relating to an individual’s private life is justified, it is essential to
consider proportionality in all the circumstances. This necessarily requires
consideration of the nature of the information held and the assistance it
offers to the police (or other body using it).
Whilst the information held on Mr Catt provided very little, if any,
assistance to the police, this decision is fact specific and cannot be
easily applied to all databases or information that police forces manage.
Indeed, the Court of Appeal acknowledged the value of the database itself
and the legitimate aim that it was trying to achieve.
In many cases, the retention of information on that database would be
proportionate. There was no indication by the court that retention of
information on the database was in any way unlawful.
The implications of this judgment have been further limited by the Court of
Appeal who acknowledged the importance to modern policing of detailed
intelligence gathering and accepted the need for caution before overriding
the judgment of the police about what information is likely to assist them
in their task.
This decision will, without question, give rise to further claims. Police
forces would be well advised to review all relevant databases for
information being retained, the value of which could be viewed, on balance,
as being disproportionate to the perceived risk of criminality/public
disorder and as such being of no assistance
Article Written By:
27 March 2013 – Article by Siobhan Mullins, Sadie Seabrook and Laurie Swain
Ms Siobhan Mullins
Clyde & Co
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