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JUDGMENT
R (on the application of Catt) (AP) (Respondent) v
Commissioner of Police of the Metropolis and
another (Appellants)
R (on the application of T) (AP) (Respondent) v
Commissioner of Police of the Metropolis
(Appellant)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Sumption
Lord Toulson
JUDGMENT GIVEN ON
4 March 2015
Heard on 2, 3 and 4 December 2014
Appellants Respondent (1) Catt
Jeremy Johnson QC Tim Owen QC
Georgina Wolfe Raj Desai
Alison Macdonald
(Instructed by
Metropolitan Police
Directorate of Legal
Services
)
(Instructed by Bhatt
Murphy Solicitors
)
Respondent (2) T
Paul Bowen QC
Ruth Brander
Zarah Al
-Rikabi
(Instructed by Bindmans
LLP
)
Intervener (EHRC)
Alex Bailin QC
Dan Squires
(Instructed by Equality &
Human Rights
Commission
)
Intervener (SSHD)
Jason Coppel QC
Robin Hopkins
(Instructed by Treasury
Solicitors
)
Intervener
(The Network
for Police Monitoring)
Nathalie Lieven QC
Jude Bunting
(Instructed by Leigh Day
& Co (written submissions
only)
)
Page 2
LORD SUMPTION: (with whom Lord Neuberger agrees)
Introduction
1. This appeal is concerned with the systematic collection and retention by
police authorities of electronic data about individuals. The issue in both cases
is whether the practice of the police governing retention is lawful, as the
appellant Police Commissioner contends, or contrary to article 8 of the
European Convention on Human Rights, as the respondents say. A particular
feature of the data in question is that they consist entirely of records made of
acts of the individuals in question which took place in public or in the
common spaces of a block of flats to which other tenants had access. The
information has not been obtained by any intrusive technique such as bugging
or DNA sampling. In the first appeal, Mr John Catt objects to the retention
on a police database of records of his participation in political demonstrations
going back to 2005. In the second appeal, Ms T objects to the retention on a
police database of a record of a minor altercation with a neighbour which the
latter reported to the police. Each of them accepts that it was lawful for the
police to make a record of the events in question as they occurred, but
contends that the police interfered with their rights under article 8 of the
European Convention on Human Rights by thereafter retaining the
information on a searchable database. I shall have to say more about the facts
of these cases in due course. Both applications failed at first instance. In the
Court of Appeal, they were heard together, and both appeals were allowed:
[2013] 1 WLR 3305.
2. Historically, one of the main limitations on the power of the state was its lack
of information and its difficulty in accessing efficiently even the information
it had. The rapid expansion over the past century of man’s technical capacity
for recording, preserving and collating information has transformed many
aspects of our lives. One of its more significant consequences has been to
shift the balance between individual autonomy and public power decisively
in favour of the latter. In a famous article in the Harvard Law Review for
1890 (“The Right to Privacy”, 4 Harvard LR 193), Louis Brandeis and
Samuel Warren drew attention to the potential for “recent inventions and
business methods” to undermine the autonomy of individuals, and made the
case for the legal protection not just of privacy in its traditional sense but
what they called “the more general right of the individual to be let alone”.
Brandeis and Warren were thinking mainly of photography and archiving
techniques. In an age of relatively minimal government they saw the main
threat as coming from business organisations and the press rather than the
Page 3
state. Their warning has proved remarkably prescient and of much wider
application than they realised. Yet although their argument was based mainly
on English authority, the concept of a legal right of privacy whether broadly
or narrowly defined fell on stony ground in England. Its reception here has
been relatively recent and almost entirely due to the incorporation into
domestic law of the European Convention on Human Rights.
Is article 8 engaged?
3. Article 8 of the Convention confers on everyone a qualified right to “respect
for his private and family life, his home and his correspondence”. It has
proved to be the most elastic of the rights protected by the Convention and,
as Lord Rodger pointed out in R (Countryside Alliance) v Attorney General
[2008] AC 719, para 92, has for many years extended well beyond the
protection of privacy in its narrower sense. A long series of individual
decisions, each in itself of limited scope, culminated in the following
statement of the European Court of Human Rights in Pretty v United
Kingdom (2002) 35 EHRR 1, para 61:
“As the court has had previous occasion to remark, the concept
of ‘private life’ is a broad term not susceptible to exhaustive
definition. It covers the physical and psychological integrity of
a person …. It can sometimes embrace aspects of an
individual’s physical and social identity …. Elements such as,
for example, gender identification, name and sexual orientation
and sexual life fall within the personal sphere protected by
article 8 …. Article 8 also protects a right to personal
development, and the right to establish and develop
relationships with other human beings and the outside world
…. Though no previous case has established as such any right
to self-determination as being contained in article 8 of the
Convention, the court considers that the notion of personal
autonomy is an important principle underlying the
interpretation of its guarantees.”
4. In common with other jurisdictions, including the European Court of Human
Rights and the courts of the United States, Canada and New Zealand, the
courts of the United Kingdom have adopted as the test for what constitutes
“private life” whether there was a reasonable expectation of privacy in the
relevant respect: see Campbell v MGN Ltd [2004] 2 AC 457, para 21 (Lord
Nicholls) and Kinloch v HM Advocate [2013] 2 AC 93, paras 19-21 (Lord
Hope). In one sense this test might be thought to be circular. It begs the
question what is the “privacy” which may be the subject of a reasonable
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expectation. Given the expanded concept of private life in the jurisprudence
of the Convention, the test cannot be limited to cases where a person can be
said to have a reasonable expectation about the privacy of his home or
personal communications. It must extend to every occasion on which a
person has a reasonable expectation that there will be no interference with
the broader right of personal autonomy recognised in the case law of the
Strasbourg court. This is consistent with the recognition that there may be
some matters about which there is a reasonable expectation of privacy,
notwithstanding that they occur in public and are patent to all the world. In
this context mere observation cannot, save perhaps in extreme circumstances,
engage article 8, but the systematic retention of information may do.
5. In Rotaru v Romania (2000) 8 BHRC 449, para 43, the Grand Chamber held
that “public information can fall within the scope of private life where it is
systematically collected and stored in files held by the authorities.” Cf
Segerstedt–Wiberg v Sweden (2006) 44 EHRR 14, para 72. In PG v United
Kingdom (2001) 46 EHRR 1272, the court found a violation of article 8 by
covertly recording the applicants’ voices at a police station in the presence of
police officers, for the purposes of future voice recognition. At para 57 the
court said:
“There are a number of elements relevant to a consideration of
whether a person’s private life is concerned by measures
effected outside a person’s home or private premises. Since
there are occasions when people knowingly or intentionally
involve themselves in activities which are or may be recorded
or reported in a public manner, a person’s reasonable
expectations as to privacy may be a significant, although not
necessarily conclusive, factor. A person who walks down the
street will, inevitably, be visible to any member of the public
who is also present. Monitoring by technological means of the
same public scene (for example, a security guard viewing
through closed-circuit television) is of a similar character.
Private-life considerations may arise, however, once any
systematic or permanent record comes into existence of such
material from the public domain. It is for this reason that files
gathered by security services on a particular individual fall
within the scope of article 8, even where the information has
not been gathered by any intrusive or covert method.”
In Bouchacourt v France, 17 December 2009, Application No 5335/06, a
case concerning the inclusion of persons in a register of convicted sex
offenders, it was held at para 57 that the “mere storing by a public authority
of data relating to the private life of an individual” engaged article 8 of the
Page 5
Convention so as to require to be justified. In S v United Kingdom (2008) 48
EHRR 1169 the Strasbourg court held that article 8 was engaged by the mere
storage of cellular samples, DNA profiles and fingerprints: see paras 77, 86.
This was because of the sensitivity and amount of the personal information
in question, and the uses to which it might “conceivably” be put: paras 70-
86. The same principle has been recognised and applied in English case law.
As Lord Hope of Craighead DPSC observed in R (L) v Comr of Police of the
Metropolis (Secretary of State for the Home Department intervening) [2010]
1 AC 410, para 27, even public information such as a criminal conviction
may become part of a person’s private life once it recedes into the past and
other people are likely to have forgotten about it.
6. These cases, and others like them, all have particular features which
differentiate them both from each other and from the present cases. But it is
clear that the state’s systematic collection and storage in retrievable form
even of public information about an individual is an interference with private
life. For that reason I think that the Court of Appeal was right to hold
(overruling the Divisional Court in Catt) that article 8(1) was engaged. It
follows that the present appeals turn on article 8(2) of the Convention, and in
particular on whether the retention of the data is (i) “in accordance with law”,
and (ii) proportionate to its objective of securing public safety or preventing
disorder or crime.
The domestic legal framework
7. At common law the police have the power to obtain and store information for
policing purposes, ie broadly speaking for the maintenance of public order
and the prevention and detection of crime. These powers do not authorise
intrusive methods of obtaining information, such as entry upon private
property or acts (other than arrest under common law powers) which would
constitute an assault. But they were amply sufficient to authorise the
obtaining and storage of the kind of public information in question on these
appeals.
8. The exercise of these powers is subject to an intensive regime of statutory
and administrative regulation. The principal element of this regime is the
Data Protection Act 1998. The Act was passed to give effect to Directive
95/46/EC on the protection of individuals with regard to the processing of
personal data, a harmonisation measure designed to produce a common
European framework of regulation ensuring a “high level of protection”
satisfying (among other standards) article 8 of the Convention: see recitals
10 and 11. On ordinary principles of statutory construction the Act will as far
as possible be interpreted in a manner consistent with that objective. It is
Page 6
primarily concerned to regulate the processing of data by any “data
controller” or any other person who processes data on behalf of a data
controller. For this purpose, personal data means data relating to a living
individual identifiable from the data (whether or not in conjunction with other
information or data available to the controller). “Processing” means
obtaining, recording or holding information or data or carrying out any
operation upon it including retrieval, consultation, use or disclosure. For
present purposes, the relevant provisions can be summarised as follows:
(1) Subject to exceptions of no present relevance, a data controller is
required by section 4(4) to comply with the “data protection
principles” in Schedule 1. So far as they are relevant to the present
appeals, the data protection principles are as follows:
Principle 1 is that personal data may not be “processed” at all unless
it is necessary for a relevant purpose. In the case of the police, the
relevant purposes are the administration of justice and the exercise of
any other function of a public nature exercised in the public interest.
Principle 2 is that personal data may be obtained only for lawful
purposes and may not be further “processed” in a manner incompatible
with those purposes.
Principle 3 is that the data must be “adequate, relevant and not
excessive” for the relevant purpose.
Principle 5 is that the data may not be kept for longer than is necessary
for those purposes.
Principle 7 is that proper and proportionate measures must be taken
against the unauthorised or unlawful “processing” of the data.
(2) There is a statutory right in any “data subject” on request to be given
access to any personal data concerning him: section 7. This is subject
to an exception under section 29 for personal data “processed” for the
purpose of (among other things) preventing or detecting crime or
apprehending or prosecuting offenders. The effect of the exception is
to protect information relating to current police investigations or
operations.
Page 7
(3) There is a statutory right in a data subject to require a data controller
not to “process” personal data, on the ground that it is causing or is
likely to cause unwarranted and substantial damage or substantial
distress to him or to someone else: section 10(1). This right would not
apply to processing which is necessary for the administration of justice
or for the exercise of other public functions in the public interest. But
it would apply in any case where that limitation has been exceeded:
section 10(2) and Schedule 2, para 5.
(4) Complaints about breach of a data controller’s obligations may be
pursued in the courts or by way of complaint to the regulator, the
Information Commissioner: sections 13 and 14. The relief available
includes damages.
9. These provisions are supplemented in the case of the police by published
administrative codes. Under section 39A of the Police Act 1996 the Secretary
of State is empowered to issue codes of practice for the purpose of promoting
the efficiency and effectiveness of police forces. A Code of Practice on the
management of police information was issued by the Secretary of State in
July 2005. The Code follows fairly closely the provisions of the Data
Protection Act, while relating them more directly to the particular functions
of the police. The central concept underlying it is the limitation of the
handling of “police information” to “police purposes”. These are defined at
paragraph 2.2 as protecting life and property, preserving order, preventing
crime, bringing offenders to justice and performing any legal duty or
responsibility of the police. Subsequent provisions of the Code deal with the
use, review and deletion of information originally recorded for police
purposes. Paragraph 4.7 provides for the sharing of information within the
United Kingdom police service if it is required for police purposes and the
recipient observes the Code. Paragraph 4.8 provides for the sharing of
information outside the service on the authority of a chief officer of police if
he is satisfied that it is reasonable and lawful to do so for police purposes.
Paragraph 4.10 imposes a duty directly on those receiving information in
these ways to use it only for the purpose for which it was supplied. Under
paragraphs 4.5 and 4.6, information originally recorded for police purposes
must be reviewed at intervals. At each review the likelihood that it will be
used for police purposes should be assessed, and it should be considered for
retention or deletion.
10. The Code of Practice provides for more detailed provision to be made by way
of guidance which will (among other things) identify minimum standards of
information management to be observed. Guidance on the Management of
Police Information (or “MOPI”) was originally issued by the Association of
Chief Police Officers in 2006, and updated by a new edition in 2010. This
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was in turn superseded by the Authorised Professional Practice: Information
Management – Retention, review and disposal, published by the College of
Policing in 2013. Section 7 of the 2010 document deals with the review of
information for retention or disposal. It requires police information to be
managed in compliance with the Convention, the Human Rights Act and the
Data Protection Act. Paragraph 7.1 begins:
“Reviewing information held by forces to determine its
adequacy and continuing necessity for a policing purpose is a
reliable means of meeting the requirements of the Data
Protection Act. Review procedures should be practical, risk
focused and able to identify information which is valuable to
the policing purpose and needs to be retained. Review
procedures should not be overly complex but should be as
straightforward as is operationally possible.”
Paragraph 7.4 provides:
“All records which are accurate, adequate, up to date and
necessary for policing purposes will be held for a minimum of
six years from the date of creation. This six-year minimum
helps to ensure that forces have sufficient information to
identify offending patterns over time, and helps guard against
individuals’ efforts to avoid detection for lengthy periods.
Beyond the six-year period, there is a requirement to review
whether it is still necessary to keep the record for a policing
purpose. The review process specifies that forces may retain
records only for as long as they are necessary.”
Paragraph 7.3.1 provides that the object of the review is to ensure that there
is a continuing policing purpose for holding the record, that the record is
adequate, up to date and not excessive, that the Data Protection Act is
complied with, and that the assessment of the level of risk that the person
presents is correct. A number of detailed criteria for carrying out this exercise
are then set out. Records are required to be subjected to an initial evaluation,
and then kept for a minimum of six years. Thereafter, they are subject to: (i)
“triggered reviews”, when information is added about the person in question
or a statutory demand for access or disclosure is received or a request for
information is made by another law enforcement agency; and (ii) “scheduled
reviews”, which occur automatically at intervals varying with the nature of
the information and the gravity of the risk: paragraphs 7.6.2 and 7.6.3. The
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criteria for retention or deletion are directed to the risk of harm to the public
or to vulnerable sections of the public. Only in the case of persons convicted
or suspected of involvement in offences involving the highest level of danger
to the public are records to be retained indefinitely. Information which is no
longer required must be irretrievably deleted. Substantially similar provisions
appear in the current Guidance of 2013.
In accordance with the law
11. The requirement of article 8(2) that any interference with a person’s right to
respect for private life should be “in accordance with the law” is a
precondition of any attempt to justify it. Its purpose is not limited to requiring
an ascertainable legal basis for the interference as a matter of domestic law.
It also ensures that the law is not so wide or indefinite as to permit
interference with the right on an arbitrary or abusive basis. In R (Gillan) v
Comr of Police of the Metropolis [2006] 2 AC 307, para 34, Lord Bingham
of Cornhill observed that “the lawfulness requirement in the Convention
addresses supremely important features of the rule of law”:
“The exercise of power by public officials, as it affects
members of the public, must be governed by clear and publicly
accessible rules of law. The public must not be vulnerable to
interference by public officials acting on any personal whim,
caprice, malice, predilection or purpose other than that for
which the power was conferred. This is what, in this context, is
meant by arbitrariness, which is the antithesis of legality.”
In the context of the retention by the police of cellular samples, DNA profiles
and fingerprints, the Grand Chamber observed in S v United Kingdom (2008)
48 EHRR 1169, para 99, that there must be
“clear, detailed rules governing the scope and application of
measures, as well as minimum safeguards concerning, inter
alia, duration, storage, usage, access of third parties, procedures
for preserving the integrity and confidentiality of data and
procedures for its destruction, thus providing sufficient
guarantees against the risk of abuse and arbitrariness.”
For this purpose, the rules need not be statutory, provided that they operate
within a framework of law and that there are effective means of enforcing
them. Their application, including the manner in which any discretion will be
Page 10
exercised, should be reasonably predictable, if necessary with the assistance
of expert advice. But except perhaps in the simplest cases, this does not mean
that the law has to codify the answers to every possible issue which may arise.
It is enough that it lays down principles which are capable of being
predictably applied to any situation.
12. The Data Protection Act is a statute of general application. It is not
specifically directed to data obtained or stored by the police. But it lays down
principles which are germane and directly applicable to police information,
and contains a framework for their enforcement on the police among others
through the Information Commissioner and the courts. It deals directly in
section 29 and in Schedule 2, paragraph 5 with the application of the
principles to law enforcement. The Data Protection Principles themselves
constitute a comprehensive code corresponding to the requirements of the EU
Directive and the Convention. The effect of the first principle, read in
conjunction with the requirements of Schedule 2, is that data cannot be
obtained, recorded, held or used by the police unless it is necessary for them
to do so for the purpose of the administration of justice or the performance of
their other functions. The fifth principle prevents the retention of data for any
longer than is necessary for this purpose. These principles are supplemented
by a statutory Code of Conduct and administrative Guidance compliance with
which is mandatory. The relevant functions of the police are limited to
policing functions which are clearly and narrowly defined in para 2.2 of the
statutory Code of Practice.
13. There are discretionary elements in the statutory scheme as there must
inevitably be, given the great variety of circumstances that may give rise to
allegations that personal data have been improperly processed. But their
ambit is limited. In the first place, the Code of Practice governing police
information is an administrative document whose contents are determined by
police organisations subject to the approval of the Home Secretary. It leaves
room for discretionary judgment by the police within specified limits, notably
in the area of the duration of retention. But both the Code and the Guidance
issued under it are subordinate instruments which are subject to the Data
Protection Principles. Neither the Information Commissioner nor the courts
are bound or indeed entitled to apply them in a manner inconsistent with those
principles. Secondly, the Commissioner has a discretion whether to take
action. He need not, for example, necessarily issue an enforcement notice in
a trivial case or one in which a contravention has caused no appreciable
damage or distress. But he is bound to enforce the Act, and his performance
(or non-performance) of his functions is subject to judicial review in the
ordinary way.
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14. Much of the argument advanced on behalf of Mr Catt and Ms T on this point
amounted to a complaint that this material did not enable them to know
precisely what data would be obtained and stored or for how long. But these
arguments were not in my opinion realistic. The infinite variety of situations
in which issues of compliance may arise and the inevitable element of
judgment involved in assessing them make complete codification impossible.
However, any person who thinks that the police may hold personal
information about him may call for access to it under section 7 of the Act,
subject (in the present kind of case) only to the exception in section 29.
Armed with the information any person who objects to its retention or use
can bring the matter before the Information Commissioner.
15. Before leaving this aspect of the current appeals, I should say something
about two cases on which the respondents particularly relied. They are the
decision of the European Court of Human Rights in MM v United Kingdom,
13 Nov 2012, Application No 24029/07, and the decision of this court in R
(T) v Chief Constable of Greater Manchester Police (Liberty intervening)
[2015] AC 49. Both cases concerned the disclosure of information from
police records under the Police Act 1997 to potential employers and
regulatory bodies, as a result of which the complainants were unable to obtain
employment involving contact with children or vulnerable adults. Section
113A of the Police Act 1997 required the disclosure of convictions (including
cautions), and section 113B required the disclosure of other information on
police records which the relevant chief officer of police reasonably believed
to be relevant and which in his opinion ought to be disclosed. Since these
disclosures were required by statute, the provisions of the Data Protection
Act 1998 restricting their disclosure had no application: see section 35(1) of
that Act. In MM, the European Court of Human Rights held that disclosure
in accordance with sections 113A and 113B was not “in accordance with
law” because it was mandatory. The relevant provisions involved no rational
assessment of risk and contained no safeguards against abuse or arbitrary
treatment of individuals. In T, the Supreme Court, on materially
indistinguishable facts, applied the same principle. The present appeals,
however, come before us on a very different basis. There has been no
disclosure to third parties, and the prospect of future disclosure is limited by
comprehensive restrictions. It is limited to policing purposes, and is subject
to an internal proportionality review and the review by the Information
Commissioner and the Courts.
16. In MM, the Strasbourg court criticised the “generous approach” of the law of
the United Kingdom to the exercise of police power to retain personal data
even before disclosure (para 170). It does not, however, follow from these
criticisms that retention of personal data in the United Kingdom is not “in
accordance with law”. In the first place, at the time which was relevant to the
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applicant’s complaint in MM, challenges to the retention of data were
seriously inhibited by the decisions of the House of Lords in R (S) v Chief
Constable of the South Yorkshire Police [2004] 1 WLR 2196, which
concerned the statutory power of the police to retain DNA profiles taken from
persons who had been arrested but who were subsequently acquitted or not
prosecuted, and Chief Constable of Humberside Police v Information Comr
(Secretary of State for the Home Department intervening) [2010] 1 WLR
1136, which concerned the retention of records of minor convictions. In both
cases, the courts had doubted whether article 8 of the Convention was even
engaged, but on the footing that it was engaged considered that the
interference with private life was minor and justified. Things have moved on
since then. There is no longer any doubt about the application of article 8 to
the systematic retention of processable personal data, and the test of
justification has become more exacting since the decision of the Strasbourg
court in S v United Kingdom (2008) 48 EHRR 1169. The decisions of this
court in R (GC) v Comr of Police for the Metropolis [2011] 1 WLR 1230 and
R (L) v Comr of Police of the Metropolis (Secretary of State for the Home
Department intervening) [2010] 1 AC 410 were important milestones.
Secondly, the purpose for which the rules and practices about data retention
were reviewed by the Strasbourg court in MM was not to ascertain the legality
of the retention but to assess the adequacy of domestic remedies having
regard to the applicant’s alleged failure to exhaust them before petitioning
the Strasbourg court. Thirdly, it is clear that the retention of the data in MM
was relevant not so much in itself as because it exposed the applicant to future
disclosure. The problem with which the Strasbourg court was concerned was
that once the data were entered into the system, there was no way of
preventing their disclosure under the mandatory provisions of the Police Act.
It followed that the only legal protection against disclosure consisted in the
restrictions on the obtaining or retention of the data in the first place. The
point is well captured in the court’s conclusion, at para 207. It was
“not satisfied that there were, and are, sufficient safeguards in
the system for retention and disclosure of criminal record data
to ensure that data relating to the applicant’s private life have
not been, and will not be, disclosed in violation of her right to
respect for her private life. The retention and disclosure of the
applicant’s caution data accordingly cannot be regarded as
being in accordance with the law.”
17. In my opinion, the retention of data in police information systems in the
United Kingdom is in accordance with law. The real question on these
appeals is whether the interference with the respondents’ article 8 rights was
proportionate to the objective of maintaining public order and preventing or
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detecting crime. For this purpose, it is necessary to look separately at the two
cases before us, for the relevant considerations are very different.
Proportionality: Mr Catt
18. Mr Catt’s complaint relates to the recording and retention of information
relating to his participation in political protests. Before addressing his own
position, it is necessary to summarise, so far as it is relevant to these
proceedings, how and why information of this kind is dealt with by the police.
19. Political protest is a basic right which the common law has always
recognised, within broad limits directed to keeping the peace and protecting
the rights and property of others. It is also a right protected by articles 10 and
11 of the Convention. It is an unfortunate but inescapable fact that some
extremist groups deliberately adopt tactics which are likely to involve serious
criminal damage to property, assaults against police officers and others, and
serious acts of aggravated trespass, harassment and intimidation. This case is
mainly concerned with one such group, called Smash EDO. Its object is to
close down the activities in the United Kingdom of EDO MBM Technology
Ltd, a US-owned company which manufactures weapons and weapon
components and has a factory in Brighton. Not all of those who attend
demonstrations organised by Smash EDO are intent on violence, but the
evidence is that some are. Recorded crimes associated with the group’s
operations against EDO include assault on police officers, sometimes by
organised groups (“black blocs”) who arrive with missiles and other
weapons, padding and body armour. They also include: extensive and
repeated criminal damage to EDO premises by smashing windows, blocking
air conditioning units, throwing fireworks and glass bottles of red oxide paint,
forcibly entering premises and breaking equipment; damage to cars
belonging to their employees; harassment and intimidation of staff both at
their place of work and at home; and conducting secondary campaigns by
similar methods against companies supplying services to EDO, such as
couriers and banks. In his witness statement, Detective Chief Superintendent
Tudway of the Metropolitan Police describes Smash EDO as “amongst the
most violent in the UK and the only one that would be attended by anarchists
prepared to use black bloc tactics”.
20. The local organisation of police forces in England makes it necessary for
police forces to create organisations to coordinate their response to threats
which transcend the limits of individual police areas. At the time when he
wrote his witness statement, Detective Chief Superintendent Tudway was the
National Coordinator for Domestic Extremism, an office established in 2004
under the auspices of the Association of Chief Police Officers (“ACPO”) but
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which subsequently became part of the Metropolitan Police. The National
Coordinator is responsible for a number of units whose function is to
coordinate the police response to domestic extremism, which is currently
defined by ACPO as the planning or commission of crimes motivated by a
political or ideological point of view. One of these is the National Domestic
Extremism and Disorder Intelligence Unit, formerly known as National
Public Order Intelligence Unit (or NPOIU). The Unit was created in 1999 but
has its origins in an organisation created in 1986 to coordinate police
intelligence about animal rights extremists who were responsible during the
1980s and 1990s for a particularly violent and destructive campaign of
criminality directed against the use of animals in research institutions. The
Unit exists to support local police forces by gathering, evaluating and
disseminating among police forces intelligence relating to threats to public
order, including those arising from domestic extremism. The police routinely
collect information at public demonstrations. Much of this is done overtly,
no intrusive techniques being employed. Very often, they do not retain the
information if no offences have occurred and the demonstration was a oneoff event. However, where a demonstration is part of a regular and longrunning campaign which gives rise to repeated acts of crime and disorder, the
practice is to retain it even if offences have not been committed on that
particular occasion or at any rate not by the individual whose presence or
activities are recorded. Each incident is recorded on Information Reports,
which generally contain a brief description of what occurred, with the names
of those attending, so far as recognised. Some individuals are the subject of
a “nominal record”, which will collect together Information Reports referring
to them. These records are stored on a database which has been referred to in
these proceedings as the “Domestic Extremism Database”. Its formal title is
the National Special Branch Intelligence System.
21. Nominal records, and Information Reports, are reviewed for retention or
deletion in accordance with current MOPI recommendations, which I have
already summarised. More stringent procedures are followed in the case of
photographs, which until recently were reviewed automatically every three
years, and are now reviewed every year. These processes were, however,
accelerated as a result of a report by HM Inspectorate of Constabulary
published in January 2012 on undercover police operations designed to
obtain intelligence about protest movements. The report concluded (among
other things) that information was being unnecessarily retained in police
records. Although the report was concerned with covertly obtained
intelligence, it led to an extensive review of the existing database covering
overtly obtained intelligence as well, so as to ensure that its continued
retention was justified. This resulted in the deletion of a large number of
nominal records and associated Information Reports.
Page 15
22. Mr Catt is a 91-year-old man living in Brighton. By his own account, he has
been active in the peace movement since 1948, and has been a regular
attender at public demonstrations throughout that period. Since 2005, he has
frequently participated in demonstrations organised by Smash EDO,
generally in Brighton. Mr Catt has twice been arrested at Smash EDO
demonstrations for obstructing the public highway, but he has never been
convicted of any offence. For my part, I am happy to take at face value his
statement that he believes in peaceful protest and practises it.
23. From March 2005, Mr Catt began to appear in police information reports
relating to Smash EDO protests in Brighton. As a result of his being identified
on these occasions, he occasionally appeared in addition in Information
Reports relating to other protests in which he participated, some of them away
from Brighton. In March 2010, Mr Catt made an access request under section
7 of the Data Protection Act 1998 for information relating to him. As a result
of the disclosure made in response to that request, and of the evidence in these
proceedings, the position in relation to Mr Catt can be summarised as follows.
There had at one stage been a nominal record for Mr Catt, but it was deleted
some time before these proceedings were begun (November 2010).
Presumably it had already been deleted when Mr Catt made his access request
in March 2010, or its existence would have been disclosed. Nominal records
for other persons and Information Reports concerning demonstrations, which
incidentally mention Mr Catt had been retained. Some entries from these
documents relating to incidents between March 2005 and October 2009 were
retrieved which referred to Mr Catt, and these were disclosed to him in
response to his access request, in addition to a photograph of him taken at a
demonstration in September 2007. In January 2012, information was
supplied about three further reports mentioning Mr Catt, which were received
in July 2011. In the great majority of cases, all that was recorded about Mr
Catt was his presence, date of birth and address. In some cases his appearance
is also described.
24. Mr Catt believes that he was specifically targeted by the police. There is,
however, no evidence of this. His name appears along with the names of other
participants about whom the same sort of information is recorded, together
with the names of witnesses and victims. Nominal records about other people
which mention Mr Catt were reviewed for deletion or retention in accordance
with the criteria which I have summarised. The intervals between scheduled
reviews will depend on the category of risk to which the subject of the
nominal record belongs. Mr Catt’s photograph came up for automatic review
in July 2010, and was deleted. Subsequently, as a result of the general review
of the database undertaken since 2012, the number of nominal reports and
Information Reports which mentioned Mr Catt was reduced to two.
Page 16
25. Do these considerations justify the retention of information including some
which relates to persons such as Mr Catt against whom no criminality is
alleged? In my opinion, they do.
26. The starting point is the nature and extent of the invasion of privacy involved
in the retention of information of this kind. I am conscious that the Strasbourg
court has in the past taken exception to the characterisation of interferences
by English courts with private life as being minor (see, notably, MM, at para
170), but the word seems to me to be appropriate to describe what happened
in this case. The information stored is personal information because it relates
to individuals, but it is in no sense intimate or sensitive information like, for
example, DNA material or fingerprints. It is information about the overt
activities in public places of individuals whose main object in attending the
events in question was to draw public attention to their support for a cause.
Although the collation of the information in the form in which it appears in
police records is not publicly available, the primary facts recorded are and
always have been in the public domain. No intrusive procedures have been
used to discover and record them, another marked contrast with DNA
material. The material records what was observed by uniformed police
officers in public places.
27. The retention in a nominal record about a particular person or in an
Information Report about a demonstration of information about other persons
such as Mr Catt who were participating in the same event does not carry any
stigma of suspicion or guilt. Mr Catt takes exception to what he regards as
the inference that all those mentioned as participating in events such as
Smash EDO protests are “extremists”. But that is not a fair inference. The
relevant police units are concerned with “extremism”, in the sense of the
pursuit of a political cause by criminal means, but it does not follow that all
those who are recorded as attending these events are being characterised as
extremists in that or any other sense. Unlike the records of criminal
convictions or cautions, the information would not be regarded as
discreditable to those who were merely recorded as attending an event at
which they were not alleged to have committed offences. But in fact, the
material is not usable or disclosable for any purpose other than police
purposes, except as a result of an access request by the subject under the Data
Protection Act. It is not used for political purposes or for any kind of
victimisation of dissidents. It is not available to potential employers or other
outside interests. There are robust procedures for ensuring that these
restrictions are observed. Finally, the material is periodically reviewed for
retention or deletion according to rational and proportionate criteria based on
an assessment of danger to the public and value for policing purposes.
Page 17
28. Mr Catt has characterised the practice of retaining such information on a
database as “secret”, but to my mind this is somewhat extravagant. The
retention by the police of personal data about persons and events of interest
to them is the subject of a statutory Code of Practice and administrative
Guidance. These are public documents. With limited exceptions relating
mainly to current investigations or operations, any personal data in the
possession of the police can be accessed by the subject by a request under the
Data Protection Act. The existence of specialised police units dealing with
political demonstrations which are thought liable to degenerate into
criminality is widely known. The fact that they record information about
them and those who participate in them has never been concealed from those
who wish to know about these matters. They have been referred to in the
press and in reports of HM Inspectorate of Constabulary. Our attention was
drawn to a report on the BBC News web-site dating from 2002 and an HMIC
report of 2003. Given the high profile of some protest groups and their
association with criminality, these are the kind of matters which, even in the
absence of specific information, most people would expect the police to
record and retain.
29. Even a comparatively minor interference with a person’s right to respect for
private life calls for justification. I turn therefore to the question why is it
necessary to retain such material at all, especially in the case of a person like
Mr Catt who has a clean record and for whom violent criminality must be a
very remote prospect indeed. The purposes for which the evidence about
participants in demonstrations is retained are described in Detective Chief
Superintendent Tudway’s witness statement, with a fair amount of specific
illustrative detail:
(1) It is retained in order to enable the police to make a more informed
assessment of the risks and the threats to public order associated with
demonstrations forming part of an identifiable campaign, and the scale
and nature of the police response which may be necessary in future.
(2) It is retained in order to investigate criminal offences where there have
been any, and to identify potential witnesses and victims.
(3) It is retained in order to study the leadership, organisation, tactics and
methods of protest groups which have been persistently associated
with violence, and other protest groups associated with them. Links
between protest groups are potentially important. There is a significant
correlation between participation in a group such as Smash EDO and
other extremist groups such as animal rights activists. The evidence is
that out of 242 Smash EDO activists recorded in the database at the
Page 18
time when these proceedings were begun, 42 also had links with
animal rights protest groups. There is considerable cross-fertilisation
of ideas between different extremist causes on tactics and methods.
30. These are all proper policing purposes. The evidence of the police is that a
significant contribution is made to all of them by the retention of information
of this kind. That evidence is supported by illustrative examples, and this
court has no evidential basis or personal experience on which to challenge
that assessment. And, to put it at its lowest, the evidence is credible. The
proper performance of these functions is important not only in order to assist
the prevention and detection of crime associated with public demonstrations,
but to enable the great majority of public demonstrations which are peaceful
and lawful to take place without incident and without an overbearing police
presence.
31. These points need to be considered in the light of some basic, and perhaps
obvious, facts about the nature of intelligence-gathering. Most intelligence is
necessarily acquired in the first instance indiscriminately. Its value can only
be judged in hindsight, as subsequent analysis for particular purposes
discloses a relevant pattern. The picture which is thus formed is in the nature
of things a developing one, and there is not always a particular point of time
at which one can say that any one piece in the jigsaw is irrelevant. The most
that can be done is to assess whether the value of the material is proportionate
to the gravity of the threat to the public. This is the principle on which the
review procedures are required to be conducted by the Code of Practice and
the successive editions of the Guidance. The fact that some of the information
recorded in the database relates to people like Mr Catt who have not
committed and are not likely to commit offences does not make it irrelevant
for legitimate policing purposes. The composition, organisation and
leadership of protest groups who are persistently associated with violence and
criminality at public demonstrations is a matter of proper interest to the police
even if some of the individuals in question are not themselves involved in
any criminality. The longer-term consequences of restricting the availability
of this resource to the police would potentially be very serious. It would
adversely affect police operations directed against far less benign spirits than
Mr Catt. Organised crime, terrorism, drug distribution and football
hooliganism are all obvious examples. One cannot look at an issue of this
kind simply in relation to Mr Catt.
32. Even if it were consistent with the purpose and proper use of the database to
exclude people like Mr Catt from it, the labour involved would be
disproportionate to the value of the exercise to them. The current weeding
process in relation to nominal records involves an assessment of the threat
posed by the subject of each such record. Mr Catt is not the subject of a
Page 19
nominal record, but merely appears as part of the cast in incidents with which
the subjects of nominal records are associated. To fillet all the nominal
records not simply in order to review the retention of information relating to
the subject of the record but to examine the individual position of every other
person mentioned in it would be a major administrative exercise. The
alternative of not retaining information in a nominal record about any other
members of the cast would significantly undermine the value of the record.
33. Although the jurisprudence of the European Court of Human Rights is
exacting in treating the systematic storage of personal data as engaging article
8 and requiring justification, it has consistently recognised that (subject
always to proportionality) public safety and the prevention and detection of
crime will justify it provided that sufficient safeguards exist to ensure that
personal information is not retained for longer than is required for the purpose
of maintaining public order and preventing or detecting crime, and that
disclosure to third parties is properly restricted: see Bouchacourt v France,
17 December 2009, Application No 5335/06, paras 68-69, and Brunet v
France, 18 September 2014, Application No 21010/10, para 36. In my
opinion, both of these requirements are satisfied in this case. Like any
complex system dependent on administrative supervision, the present system
is not proof against mistakes. At least in hindsight, it is implicit in the 2012
report of HMIC and the scale on which the database was weeded out over the
next two years that the police may have been retaining more records than the
Code of Practice and the MOPI guidelines really required. But the judicial
and administrative procedures for addressing this are effective, as the facts
disclosed on this appeal suggest.
34. Mr Catt could have complained about the retention of his personal data to the
Information Commissioner. He has in fact chosen to proceed in court by way
of application for judicial review. The result of that process, in my opinion,
is that the police have shown that the retention of data about his participation
in demonstrations in the nominal records of other persons and in other event
reports is justified by the legitimate requirements of police intelligencegathering in the interests of the maintenance of public order and the
prevention of crime.
35. This was substantially the view taken by Gross LJ, delivering the judgment
of the Divisional Court. He dealt with the point quite shortly, because he
regarded it as plain that the retention of the data concerning Mr Catt was both
in accordance with law and justifiable as a proportionate measure for proper
policing purposes. The Court of Appeal (Lord Dyson MR, and Moore-Bick
and McCombe LJJ) disagreed. They expressed no view on the question
whether it was in accordance with law, because they were satisfied that it was
disproportionate to the admittedly legitimate purpose of proper policing of
Page 20
the community. But they considered that the information retained about Mr
Catt had been indiscriminately collected and that it had not been shown to
have any value for policing purposes. They thought that while Detective
Chief Superintendent Tudway had “state[d] in general terms that it is valuable
to have information about Mr Catt’s attendance at protests because he
associates with those who have a propensity to violence and crime”, he did
not explain why, given that Mr Catt was not alleged to have committed
crimes himself or encouraged others to do so (para 44). In my view, this does
not do justice to the points made by Detective Chief Superintendent Tudway,
which I have summarised at para 29, nor does it take account of the reality of
police intelligence work, which I have addressed at para 31. It also misses the
point that the material is relevant not primarily for the purpose of establishing
criminality against Mr Catt but for the purpose of studying the methods and
organisation of a violent organised group whose demonstrations he attends. I
would therefore allow the appeal in Mr Catt’s case, and dismiss his claim.
Proportionality: T
36. Section 1(1) of the Protection from Harassment Act 1997 makes it a civil
wrong and a criminal offence for a person to “pursue a course of conduct –
(a) which amounts to harassment of another, and (b) which he knows or ought
to know amounts to harassment of the other”.
37. Ms T lives in a block of flats in London managed by a housing association.
On 20 July 2010 a minor incident occurred there. Ms T had previously
complained about the noise coming from the flat of a neighbour, Mr B. On
leaving the flat, she saw Mr S, a friend of Mr B. There is a dispute about what
happened next. Mr S later reported to the police that she had called him a
“faggot”. He said that he associated this with insulting remarks which she
had made to him on earlier occasions, which he had interpreted as
homophobic. A Crime Reporting Information System record (“CRIS”) was
completed, recording the facts as alleged by Mr S and that a decision had
been made to serve on Ms T a “Prevention of Harassment Letter”. The police
made a number of attempts to visit Ms T at home, but no one answered the
door. Finally, the letter was pushed through her letter box on 7 October 2010.
38. It was a standard form on Metropolitan Police headed paper in the following
terms:
“An allegation of harassment has been made against you:
Page 21
Details of alleged conduct (specific actions that are cause for
complaint):
On the 20/07/2010 you went outside Flat 5 and told a visitor
who was making a phone call ‘YOU FAGGOT’
‘HARASSMENT IS A CRIMINAL OFFENCE under the
Protection from Harassment Act 1997.’
‘A person must not pursue a course of conduct which amounts
to harassment of another and which he/she knows, or ought to
know, amounts to harassment of the other.’
Harassment can take many forms and examples can include:
wilful damage to property, assault, unwarranted verbal or
physical threats, abusive communication or repeated attempts
to talk to or approach a person who is opposed to this.
It is important that you understand that should you commit any
act or acts either directly or indirectly that amount to
harassment, you may be liable to arrest and prosecution. A
copy of this letter which has been served on you will be retained
by police but will not be disclosed now to the alleged victim.
However a copy could be disclosed in any subsequent criminal
proceedings against you as proof that police have spoken to you
about this allegation.
This does not in any way constitute a criminal record and will
only be referred to should further allegations of harassment be
received.”
39. The service of such notices appears to be a common practice by police forces
across the country, although they are not all in this form. Moreover, different
police forces retain the original hard copy of the Harassment Letter for
different periods, in some cases as short as eight months. The current practice
of the Metropolitan Police is to retain a copy of the Harassment Letter on
their electronic records for at least seven years, and the corresponding CRIS
for 12 years. The issue of the letter is not tantamount to a criminal conviction,
like a caution, but it would in theory be disclosable to a potential employer
in response to a request for an Enhanced Criminal Record Certificate under
Page 22
section 113B of the Police Act 1997, if the relevant chief officer considered
that the allegation was sufficiently relevant.
40. Ms T’s complaint was originally directed mainly at the issue of the notice.
She was outraged, because she regarded it as an accusation which treated Mr
S’s allegation as true, when her side of the story had not been heard. This was
the main point made by her solicitors when, on 3 December 2010, they wrote
to the Metropolitan Police in accordance with the pre-action protocol for
judicial review. But they added that they had “also advised” that the retention
of the information was a violation of Ms T’s article 8 rights. They called for
the withdrawal of the notice and the removal of any reference to it in police
records. Proceedings were begun on that basis on 23 December 2010. Before
us, however, Ms T was unsuccessful in her application for permission to
cross-appeal on the question whether the letter was lawfully issued, and has
founded her case only on the retention of the information on police records.
That point has, however, lost much of its practical substance, since January
2013, when the Metropolitan Police wrote to her solicitors notifying them
that, having re-examined the materials in the course of preparing for the
appeal, they had decided to delete the material in any event. The reason was
that “there have been no ongoing concerns regarding risk and there are no
reports of any further incidents”. It is now retained solely for the purpose of
these proceedings. As a result both the nature of Ms T’s complaint and its
factual basis have significantly changed in the course of these proceedings.
41. Against this background, Ms T’s appeal can be dealt with quite shortly.
42. The purpose of the Prevention of Harassment letter is plain enough from its
terms. Under the Act, harassment requires a “course of conduct”, not just a
single incident. The Prevention of Harassment Letter is intended to warn the
recipient that some conduct on his or her part may, if repeated, constitute an
offence. It also seeks to prevent the recipient from denying that he or she
knew that it might amount to harassment. It therefore serves a legitimate
policing function of preventing crime and, if a repetition occurs, it may also
assist in bringing the accused to justice. It is, however, impossible to conceive
how, in the circumstances of this case, that purpose could justify the retention
of the letter in police records for as long as seven years or of the
corresponding CRIS for 12. It seems obvious that within a few months the
incident on 20 July 2010 would have become too remote to form part of the
same “course of conduct” as any further acts of harassment directed against
Mr S It is not suggested that the material has any relevance to the
investigation or prevention of possible offences by others.
Page 23
43. It may well be that longer periods, even much longer periods, of retention
would have been justified in a more serious case arising under the Protection
from Harassment Act 1997: for example in a case of stalking (section 2A) or
putting people in fear of violence (sections 4 and 4A). These kinds of offence
are often characterised by the development of abusive behaviour over a long
period of time. This is especially true of domestic violence, a difficult and
sensitive area in which the protection of persons at risk may require sensitive
monitoring over a considerable period. However, this is a long way away
from that kind of case. It arises, if the allegation is true, from a relatively
trivial act of rudeness between neighbours who did not get on. The real
problem is that the period of retention seems to be a standard period which
applies regardless of the nature of the incident and regardless of any
continuing value that the material may have for policing purposes. It was only
because of these proceedings that the retention of the material was reviewed
and the decision made in January 2013 to delete it. This is in my view difficult
to reconcile with the Data Protection Principles in the Act. Nonetheless, I do
not think that Ms T’s article 8 rights have been violated, because although
the Metropolitan Police’s policy envisages the retention of the material for
seven or 12 years, it was in fact retained for only two and a half years before
the decision to delete it was made. The latter period can be justified by
reference to the need to relate the incident of 20 July 2010 to future incidents,
bearing in mind that some time may elapse after a repetition before a
complaint is made to the police.
44. The Court of Appeal considered that the retention of the material for seven
or 12 years, or indeed for any “period of more than a year or so at the most”
was disproportionate (para 61). They therefore overruled Eady J, who had
held, with some hesitation, that the standard periods of seven and 12 years
were justifiable. It follows from what I have said that I agree that seven or 12
years could not be justified, but I would not wish to lay down a limit of one
year, because the circumstances which may give rise to harassment notices
are too varied to permit such a generalisation. The time which elapsed before
the police in fact deleted the material was in my view at the far end of the
spectrum. But I am not prepared to say that it was too long.
45. The main lesson of this case is that a minor incident has been allowed to get
out of hand by a heavy-handed response on both sides. The form of
Prevention of Harassment Letter used by the Metropolitan Police is
unnecessarily menacing and accusatorial, given that no crime has been
committed and that the facts have not always been fully investigated. The
form used by Dyfed-Powys Police is an example of the far clearer and more
reasonable documentation used by some other police forces. On Ms T’s side,
the decision to proceed by way of application for judicial review may have
made sense on the footing that the object was to have the original notice
Page 24
quashed, but that permission to pursue that objective was refused by this
court. What remained was a straightforward dispute about retention which
could have been more appropriately resolved by applying to the Information
Commissioner. As it is, the parties have gone through three levels of judicial
decision, at a cost out of all proportion to the questions at stake. Much of that
cost will have been incurred after Ms T’s object had been achieved as a result
of the police’s agreement to delete the material in January 2013.
46. I would accordingly allow the appeal in Ms T’s case also.
LADY HALE:
47. I too agree that the systematic collection and retention of information about
Mr Catt and Ms T constitutes an interference with their right to respect for
their private life protected by article 8, even though, in the case of Mr Catt,
the information collected related to his activities in public. I also agree that,
as Lord Sumption has explained, the combination of the requirements of the
Data Protection Act 1998, coupled with the Code of Practice issued by the
Secretary of State under the Police Act 1996 and the detailed Guidance on
the Management of Police Information issued by the Association of Chief
Police Officers, provided sufficient protection against arbitrary police
behaviour, so that the collection and retention of this information was “in
accordance with the law” for the purpose of article 8(2) of the Convention.
48. No-one doubts that this information was collected and kept for several of the
important purposes permitted by article 8(2): certainly “for the prevention of
disorder or crime” and probably also “for the protection of the rights and
freedoms of others”. We do not need any reminding, since the murder of two
little girls by a school care-taker in Soham and the recommendations of the
Report of the Bichard Inquiry which followed (2004, HC 653), of the crucial
role which piecing together different items of police intelligence can play in
preventing as well as detecting crime.
49. The real issue in this case is whether keeping the information about these two
people is “necessary in a democratic society” in the sense in which that phrase
is now understood: is the means used, and the interference with privacy which
it involves, a proportionate way of achieving those legitimate aims? In
particular, is it proportionate to keep the information which the police have
collected about Mr Catt and Ms T, in the form in which it was kept, and for
the length of time for which it was kept? These are not easy judgments to
make. If society can trust the police to behave properly, and not therefore to
misuse the information which they have, there is much to be said for allowing
Page 25
the police to keep any information which they reasonably believe may be
useful in preventing or detecting crime in the future. Safeguards are needed
against the misuse of the information they have rather than against simply
having it.
50. However, it has been clear since at least the decision in S v United Kingdom
(2008) 48 EHRR 1169 that the police may not be able to retain information
indefinitely (indeed in that case even if it could very well be useful, even
vital, in the prevention and detection of crime). Safeguards are certainly
needed against the keeping of personal information for longer than is
reasonably necessary. Such general guidance as the Strasbourg court was able
to give was based on the Council of Europe Convention for the protection of
individuals with regard to automatic processing of personal data of 1981 (the
Data Protection Convention) and Recommendation R (87) 15 of the
Committee of Ministers regulating the use of personal data in the police
sector:
“103. … The domestic law should notably ensure that such data
are relevant and not excessive in relation to the purposes for
which they are stored, and preserved in a form which permits
the identification of the data subjects for no longer than is
required for the purpose for which those data are stored. The
domestic law must also afford adequate guarantees that
retained personal data was [sic] efficiently protected from
misuse and abuse …”
51. Applying those principles to Mr Catt, I can well understand that it would be
more objectionable if the police were to retain a nominal record collecting
together all the information that they currently hold about him. Such dossiers
require particular justification, not least because of their potentially chilling
effect upon the right to engage in peaceful public protest. Mr Catt may be a
regular attender at demonstrations, some of which are organised by a group
which resorts to extreme tactics, but he himself has not been involved in
criminal activity at those or any other demonstrations, nor is he likely to be
in the future. Had the police kept a nominal record about him, therefore, I
would have been inclined to agree with Lord Toulson that it could not be
justified.
52. However, as I understand it, the nominal record relating to Mr Catt was
deleted some time ago. All that remained, until recently, were the incidental
references to his presence at certain demonstrations in information reports
about those demonstrations and nominal records relating to other people. The
same limited information is kept about other participants in the
Page 26
demonstrations, along with the names of witnesses and victims. The police
keep such information for three main purposes: to make informed
assessments about the risk to public order associated with particular
campaigns; to investigate any criminal offences which have been committed;
and to study the leadership, organisation, tactics and methods of protest
groups which have been persistently associated with violence and their links
with other such groups. Among other things, this enables the police to
concentrate their resources on those campaigns and demonstrations where
disorder can be predicted, while enabling the great majority of
demonstrations to take place without an over-bearing police presence.
Demonstration-based reports containing the names of the people taking part,
even those who have not committed any criminal offences in the course of
the protest, can assist the police with these important aims. They can indeed
be said to facilitate rather than impede the right of peaceful protest in a
democratic society. There is absolutely no reason to believe that this
information will be passed on to others to whom it should not be revealed or
used to victimise people like Mr Catt. I therefore agree with Lord Sumption
that retaining this information in this form is not a disproportionate
interference with his right to respect for his private life.
53. In relation to Ms T, I quite agree that the “Prevention of Harassment” letter
used by the Metropolitan Police was, as Lord Sumption puts it,
“unnecessarily menacing and accusatorial”. For whatever reason, the police
had been unable to interview her about the allegation, which on any view was
of minor importance, and yet the letter (wrongly) gives the impression that
the police had accepted the complainant’s version of events and that it
amounted to harassment. It is not surprising that Ms T was affronted or that
she should try and find some way of obliging the police to withdraw it. A
complaint to the Information Commissioner might have secured the deletion
of the police record of the incident, but it could not have secured the
withdrawal of the letter. That, no doubt, is why these proceedings were
launched.
54. However, I agree with Lord Toulson that there are often very good reasons
for making and keeping records of incidents such as these. It is not just that,
if found to have occurred and to have been repeated within a short enough
period for the incidents to be connected, it can form part of a “course of
conduct” for the purpose of proving an offence under the Protection from
Harassment Act 1997. And it must be recalled that many harassment cases
are a great deal more serious than this (if this happened at all). It is also that,
particularly in disputes between neighbours and in cases of domestic illtreatment and abuse, the police response to a new complaint will be affected
by knowing whether other complaints have been made in the past against the
same person. It is well known that, for a variety of reasons, complaints of
Page 27
domestic violence are often not followed through to prosecution and
conviction. But it is vital for the police, when responding to any new
complaint, to know whether there have been similar complaints in the past.
Domestic violence often escalates in seriousness with each new incident, and
the police have to be aware of this when considering how to respond. It is not
too dramatic to say that lives have been saved as a result.
55. For these reasons, I agree with Lord Toulson that the policy of the
Metropolitan Police in relation to these records was not unlawful, provided
that it was flexible enough to allow for information to be deleted when
retaining it would no longer serve any useful policing purpose, as in fact
happened here.
56. I would therefore allow both appeals, in the case of Mr Catt broadly for the
reasons given by Lord Sumption and in the case of Ms T for the reasons given
by Lord Toulson. The result is that both claims are dismissed.
LORD MANCE:
57. I have come to the conclusion that the appeals should be allowed in the cases
of both Mr Catt and Ms T.
58. I reach this conclusion in the case of Mr Catt for the reasons which have been
set out by Lord Sumption and Lady Hale.
59. I reach it in the case of Ms T primarily for the reasons set out by Lord Toulson
and Lady Hale. However, even if one proceeds on an opposite assumption
(namely that the police’s policy of retention was originally inflexible and was
to retain for a standard period whatever the nature of the incident or the value
of the material), I would still conclude that the appeal should be allowed for
the reasons set out by Lord Sumption. The policy, even if not originally
flexible, became so and the material regarding her was in the event only
retained for two and a half years, which was not in context disproportionate.
LORD TOULSON:
60. I agree that the systematic collection and retention by the police of data about
the two respondents impacts on their rights to respect for their private lives
protected by article 8, and that it is in accordance with the law within the
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meaning of article 8.2, for the reasons given by Lord Sumption. The critical
issue in each case is that of proportionality.
Mr Catt
61. Mr Catt’s case is about information relating to him which was stored on a
database established by the National Public Order Intelligence Unit
(“NPOIU”), a national policing unit set up under the aegis of the Association
of Chief of Police Officers, now run by the Metropolitan Police Service. The
Commander of the NPOIU, Detective Chief Superintendent Adrian Tudway,
explained in a witness statement dated 6 June 2011, that the main function of
the NPOIU is to gather, evaluate, analyse, develop and disseminate
intelligence in relation to domestic extremism and single issue campaigning
where a substantial threat of criminal activities or public disorder arises. He
said that the NPOIU carries out regular reviews in order to decide what
information should be retained. In particular, every three years it reviews all
photographic images on its database.
62. Mr Catt’s claim was issued on 17 November 2010. A review four months
earlier had resulted in a decision to delete Mr Catt’s photograph from the
database. Mr Tudway explained the reasons: Mr Catt was not known to have
organised or been involved in any actions resulting in arrests since the
photograph was taken (the date of which is unclear); he had no recorded
convictions; and he “no longer” appeared to be involved in the coordination
of Smash EDO events or actions. It should be added that there is no evidence
before the court that he was ever involved in the coordination of Smash EDO
events or actions or ever displayed any propensity for violence. However, the
NPOIU retained over 60 written database entries relating to Mr Catt’s
presence at demonstrations dating back for over five years. Most of them
related to demonstrations at the offices of EDO, but 13 related to other
demonstrations. They included, for example, the recording of his attendance
at the TUC Conference in Brighton in September 2006, at a “Voices in the
Wilderness” demonstration at the Labour Party Conference in Bournemouth
in September 2007, at a pro-Gaza demonstration and march in Brighton in
January 2009 and at a demonstration against “New Labour” organised by a
number of trade unions in September 2009.
63. Mr Catt is 91 years old. Because he has been an attender at protest events for
many years he is obviously well known to the police. The question is whether
it is proportionate for the police to keep details on a database of the mere
attendance of an elderly peaceful demonstrator at all these events.
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64. Mr Tudway said in his statement that the police often collect information and
intelligence at events and incidents including local protest events. Very often,
it is not considered necessary to retain such information because no offences
have occurred and the event may be a one-off. However, where a protest
event such as the “Smash EDO” campaign becomes established, regular and
long-running, and where on occasion crime and disorder feature, then the
need to collect information to make more informed assessments about risks,
threats, public safety and the scale and nature of policing operations
increases. I have no difficulty in accepting all of that in general terms, but
there must be limits, particularly in the case of someone who has never been
accused of violence or organising violence and who has been assessed not to
be a threat.
65. Mr Tudway said that it is accepted that many of the people at these events do
not commit criminal offences, but it is important for police to seek to identify
those who are associated with criminal activity (whether as offenders or as
witnesses) for the purpose of investigating any instance of criminality, for the
purposes of ensuring that both prosecution and defence are provided with
names of potential witnesses in the event of a prosecution, and for
intelligence purposes to assist the policing of further events. However, that
does not explain to my mind why it should be thought necessary to maintain
for many years after the event information on someone about whom the
police have concluded (as they did in July 2010) that he was not known to
have acted violently and did not appear to be involved in the coordination of
the relevant events or actions. Nor is it explained why it was thought
necessary and proportionate to keep details of Mr Catt’s attendance at other
political protest events. Mr Tudway said that there can be a cross-fertilisation
of tactics and strategies from one domestic extremist organisation to another.
That does not explain why it is thought proportionate to keep, sometimes
years after the event, a record of the fact that Mr Catt, who is not suspected
of being an organiser or coordinator of Smash EDO, peaceably attended
protest events at the Labour Party conference, the TUC conference and so on.
66. I agree with the opinion of the judges of the Court of Appeal that the appellant
has not shown on the evidence that the value of the information relating to
Mr Catt was sufficient to justify its continued retention.
67. It was suggested that it would place too great a burden on the police to have
to review constantly the information retained on individuals whose names
appear in their database to see whether there was sufficient cause to keep the
information. As the Court of Appeal observed, there was no evidence from
the police that this would be over-burdensome. On the contrary, the thrust of
the evidence was that they do carry out regular reviews. As I have said, a
review was carried out a few months before these proceedings were begun.
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The police obviously had to review their information about Mr Catt in
deciding whether to retain his photograph. We know what view they formed.
There is no evidence from the police to suggest, and I see no basis to
conclude, that there would have been any real burden in deleting their historic
records of his attendances at protest events.
68. More significantly, it was submitted on behalf of the appellants that the
decision of the Court of Appeal would have a grave impact on the police’s
ability to combat crime. The purpose of the Bichard Review of police
recordkeeping was to enhance its effectiveness as a way of preventing and
detecting crime. There is no doubt that when investigating serious organised
crime, including narcotics, gang violence, people-trafficking and extortion,
and conspiracies aimed at the destruction of lawful businesses by violence,
intimidation and threats, it is necessary for the police to be able to collate and
keep records of the details of their investigations. The records naturally
include names of people apparently involved as suspects, witnesses or
victims. I do not accept that there need be any risk of that being hampered by
the court upholding the decision of the Court of Appeal in the case of Mr
Catt. After all, the police accept that they need to have periodic reviews of
the information which they have obtained in order to decide whether there is
any real purpose to be gained by keeping it. I also accept that the court should
be slow to disagree with the evaluation of the potential usefulness of evidence
by the police if a clear reason for it has been advanced. But on the facts of
this case, I cannot see what value they have identified by keeping indefinitely
a record of Mr Catt’s attendances at these various events, where he has done
no more than exercise his democratic right of peaceful protest.
69. One might question why it really matters, if there is no risk of the police
making inappropriate disclosure of the information to others. It matters
because in modern society the state has very extensive powers of keeping
records on its citizens. If a citizen’s activities are lawful, they should be free
from the state keeping a record of them unless, and then only for as long as,
such a record really needs to be kept in the public interest.
70. I would therefore dismiss the appeal in the case of Mr Catt.
Ms T
71. Ms T’s complaint relates to the retention by the police of a copy of a warning
notice under the Protection from Harassment Act 1997 sent to her by the
police after the friend of a neighbour had complained that she had used a
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homophobic insult towards him (a claim which she denies), and a
corresponding entry about the matter in police records (a “CRIS” report).
72. Ms T’s complaint in her application for judicial review was that the notice
had been issued at all. She sought a declaration that it had been unlawfully
issued and a mandatory order requiring the police to withdraw the notice and
to remove information about it from their records. The detailed grounds of
judicial review made only brief reference to the proportionality of the
continued retention of the information.
73. Her claim was dismissed by Eady J [2012] EWHC 1115 (Admin), [2012] 1
WLR 2978. As Lord Sumption has recorded, it is the standard practice of the
appellant to retain a copy of the notice for seven years and the CRIS entry for
12 years. Eady J said in his judgment, at para 99, that it seemed surprising to
him that such information needed to be retained for such a length of time. He
observed that if the sole purpose were to lay the ground for establishing a
“course of conduct” under the 1997 Act, only a much shorter period could be
justified, but he recognised that a longer period of retention might well be
appropriate for other purposes, such as assisting in resolving later allegations.
He added that it was largely a matter of expert judgment with which the court
should be slow to interfere, and that it was better to have a transparent and
clearly expressed policy than to have repeated ad hoc applications for judicial
review. He noted also, at para 102, that it was the appellant’s case that the
seven year period was not fixed rigidly and that he was prepared to entertain
requests for earlier deletion.
74. By the time that the case reached the Court of Appeal, two and a half years
after the event, the entries relating to Ms T had been expunged from the police
records on the grounds that “there have been no ongoing concerns regarding
risk and there are no reports of any further incidents”. Rather than regarding
that fact as supporting what had been said by the police to Eady J about the
policy not being inflexible, the Court of Appeal regarded this as making it
“only too clear that the continued retention of the information would have
been unnecessary, disproportionate and unjustifiable” (para 61). That seems
to me, with respect, to be an example of hindsight. I doubt whether the court’s
reaction would have been the same if in the meantime the police had received
similar complaints either from the original complainant or from somebody
else.
75. The Court of Appeal allowed Ms T’s appeal and made a declaration in the
following terms:
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“The respondent’s decision to retain the Warning Notice on file
for a minimum period of seven years, and to retain details of
the underlying allegation for a minimum of 12 years, was
unlawful and in breach of the appellant’s right to respect for
her private life, contrary to section 6 of, and article 8 of
Schedule 1 to, the Human Rights Act 1998.”
76. In my view the Court of Appeal erred in granting that declaration. By the
time Ms T’s claim came before Eady J the police had made it clear that their
policy was not inflexible, as later events have confirmed. I am not persuaded
that the policy, with that flexibility, was unlawful. The Protection from
Harassment Act covers a wide spectrum of offensive behaviour which may
occur in a variety of circumstances. It has been useful particularly, but not
exclusively, in the context of domestic abuse and problems between
neighbours. The response of the police to complaints about abusive conduct
may well be affected by knowing whether similar earlier complaints have
been made against the same person, either by the same or by other
complainants. In those circumstances I do not consider it to be unlawful for
the police to adopt a standard practice of retaining a record of such complaints
for several years, but with a readiness to be flexible in the application of the
practice.
77. For those reasons I agree that the appeal in the case of Ms T should be
allowed.