Retention of data on a national database of material relating to a protester’s attendance at demonstrations by a group that had a history of violence, criminality and disorder, did not engage Article 8 of the Human Rights Convention.
The claimant, now aged 87, applied for judicial review of the decision of the defendants to retain data, seeking an order that, as he had not himself been engaged in criminality, any reference to him should be deleted from the allegedly unlawfully retained material.
Background
The data in issue was essentially comprised of records (or reports) made by police officers overtly policing demonstrations of a group known as “Smash EDO”, which carried out a long-running campaign calling for the closure of a US owned arms company carrying on a lawful business in the United Kingdom. Disorder and criminality had been a feature of a number of the protests along with harassment of the company’s staff. The defendant authority had retained data relating to the claimant’s attendance at various political protests on the National Domestic Extremism Database, and maintained by the National Public Order Intelligence Unit.
The claimant submitted inter alia that, whilst he did have a long involvement in political protest, it was not for the state to build up a picture of him. The entries on the database systematically recorded a range of personal and sensitive personal data relating to Mr. Catt’s political views and activities, together with personal descriptions of Mr. Catt’s appearance and dress. The entries were not recorded on any database – this was the National Domestic Extremism Database.
The defendants on the other hand contended that Article 8 had not been engaged at all. The mere recording of information about, including the taking of photographs of, those involved in public demonstrations, did not engage the Convention; having regard to the public activity in which Mr. Catt had been engaged, the test for the engagement of Article 8 was not satisfied.
The judgment
The reports were made at the time when the claimant was engaging in the public activity of political protest. Therefore he could have no “reasonable expectation” of privacy and Article 8 had not been engaged (X v UK (application No 5877/72) [1973], Friedl v Austria (1995) 21 EHRR 83 and Friend v UK [2010] EHRR SE6). In the latter case the Strasbourg Court rejected as manifestly ill-founded the applicants’ contention that the hunting bans in the United Kingdom constituted an interference with their private life.
To hold that Article 8 had been engaged and the claimant’s rights infringed would extend rather than apply the law as set out by Laws LJ in R (on the application of Wood) v Commissioner of Police of the Metropolis [2009] EWCA Civ 414. In that case, although the court was unanimous as to Article 8 being engaged, Laws LJ dissented from the majority opinion that the interference had not been justified. There are three qualifications to the “core right” of personal autonomy protected by Article 8:
First, the alleged threat or assault to the individual’s personal autonomy must (if article 8 is to be engaged) attain ‘a certain level of seriousness’. Secondly, the touchstone for article 8(1)’s engagement is whether the claimant enjoys on the facts a ‘reasonable expectation of privacy’……. Absent such an expectation, there is no relevant interference with personal autonomy. Thirdly, the breadth of article 8(1) may in many instances be greatly curtailed by the scope of the justifications available to the state pursuant to article 8(2)…..”
Since the court in this case decided against the claimant on engagement grounds, Gross LJ’s comments on infringement were obiter, but he stressed that he would have found against Mr Catt on justification grounds anyway. The claimant had closely associated himself with the protest group, which had a history of violence, criminality and disorder with a significant impact on the rights and freedoms of others going about their lawful business. It was only to be expected that the protest group would attract a robust police response. As such, when the defendants overtly compiled and retained intelligence reports they were doing what the public expected of them. Even when the protest campaign ended it might be justifiable to retain some, or all, of the information. Therefore, even if Article 8(1) was engaged, the interference with C’s rights was “amply justified” under 8(2).
Comment
As he sets out on his analysis of the applicability of Article 8 to this case, Gross LJ observes that this provision is ” now a well-travelled area of our law, perhaps too well-travelled.”[23]. He goes on to cite, with approval, Laws LJ’s caveats about its reach – in Wood, Laws LJ “wisely cautioned” that the claims of Art. 8, however important to a free society, should not become “unreal and unreasonable”. Certainly the rapid development of a constellation of claims under Article 8 has attracted considerable criticism, but it has been the inevitable consequence of framing a right with such inchoate protected interests. Perhaps this judgment marks the beginning of a trend in the opposite direction.
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