Public protest, private rights
6 March 2015
A majority of the Supreme Court has held that the retention by police of information on the Domestic Extremism Database about a 91 year-old activist’s presence at political protests was (1) in accordance with the law and (2) a proportionate interference with his right to a private life under Article 8(1) of the ECHR.
However, Lord Toulson’s dissent noted that the information was retained for many years after Mr Catt had attended these mainstream political events, and the police had concluded that he was not known to have acted violently. Accordingly, he thought its retention was unnecessary and disproportionate.
Mr Catt claimed to have been involved in the peace movement since 1948, and to have been a regular participant in public demonstrations throughout the last 60 years. Between 2005 and 2010, he was regularly involved in protests organised by a group called Smash EDO. While Mr Catt had twice been arrested for obstructing the public highway, he had never been convicted of any offence, and the Supreme Court was prepared to accept at face value his statement that he believed in and practised exclusively peaceful protest.
However, the Court heard that Smash EDO’s object was to close down the activities in the United Kingdom of a US-owned arms manufacturer company with a factory in Brighton. The Court stated that while not all of those who attend demonstrations organised by Smash EDO were intent on violence, the evidence was that some were. It noted that a Detective Chief Superintendent in the Metropolitan Police had in his witness statement described this particular protest group as “amongst the most violent in the UK.”
Mr Catt accepted that it was lawful for the police to make a record of Smash EDO protests. However, he argued that it was a breach of his Article 8 rights for the police to retain records of his participation on a searchable database.
Lord Sumption gave the leading judgment for the majority. He identified that a particular feature of the information retained by the police about Mr Catt was that it consisted entirely of records made of acts that Mr Catt had done in public. He noted the police practice that where a demonstration is part of a regular and long-running campaign that gives rise to repeated acts of crime and disorder, information is retained regarding protesters 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. The great majority of the police records relating to Mr Catt was noted to record no more than his presence, date of birth and address.
Lord Sumption noted that the protection of Article 8 has been held by both the domestic and Strasbourg courts to extend to “every occasion on which a person has a reasonable expectation that there will be no interference with [their] broader right of personal autonomy.” With that in mind, while “mere observation” would not usually engage Article 8,
“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.”
Accordingly, the two issues in the appeal were whether retention of the information was lawful and proportionate.
Lord Sumption held that the police’s common law powers were “amply sufficient to authorise the obtaining and storage of the kind of public information in question.” He noted that those powers were subject to an “intensive regime” of statutory and administrative regulation: including the Data Protection Act 1998 and guidance given to the police, the effect of which was 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.”
Furthermore, data should not be retained “for any longer than is necessary for this purpose.” Lord Sumption noted that:
“[m]uch of the argument advanced on behalf of Mr Catt… 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.”
Lord Sumption distinguished the facts of Mr Catt’s appeal from those in MM v United Kingdom, and the decision of the Supreme Court in R (T) v Chief Constable of Greater Manchester Police, in that:
“[t]here 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.” He reviewed the developments since MM and held that “the retention of data in police information systems in the United Kingdom is in accordance with law.”
As for proportionality, Lord Sumption held that the retention of information by police, including that which related to persons such as Mr Catt against whom no criminality was alleged, was justified. He noted that the “primary facts” were and always had been in the public domain as they related to Mr Catt’s presence at a public demonstration. He further noted that the retention on the National Extremist Database of information about other persons who were participating in the same event as the subject of a particular record did not carry any stigma of suspicion or guilt. He emphasised that:
“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.”
Lord Sumption held that the information was retained for “proper policing purposes,” including “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.” He stated that the value of intelligence can only be judged in hindsight. The fact that some of the information recorded in the database relates to people like Mr Catt, who had not committed and were not likely to commit offences did not make it irrelevant for legitimate policing purposes. The “longer term consequences of restricting the availability of this resource to the police would be very serious.”
Accordingly, Lord Sumption held that:
“[t]he 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.”
Finally, he held that the personal information in question was not retained for longer than was required for the purpose of maintaining public order and preventing or detecting crime, and that disclosure to third parties was properly restricted:
“[T]he 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… [but the] longer term consequences of restricting the availability of this resource to the police would be very serious.” The interference with Mr Catt’s Article 8 rights was therefore proportionate and necessary.
Lord Toulson, in his dissent, summarised the issue as “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.” He stated that there did not seem to be an explanation as “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 was it explained why it was thought necessary and proportionate to keep details of Mr Catt ‘s attendance at other mainstream political protest events, such as at the Labour Party Conference. He stated that “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.” Lord Toulson did not find that in this case it was necessary and proportionate to retain the information relating to Mr Catt.
Overall, the Supreme Court’s judgment is an affirmation of the police’s powers to record and retain information about public demonstrations, and about protest groups more generally. The Court has confirmed that the necessity and proportionality of the retention of information should be carefully scrutinised with particular attention being paid to the safeguards in place to protect disclosure and review the necessity and extent of ongoing retention.
However, the Supreme Court does appear to have accepted that once a broad operational justification has been demonstrated for the retention of information relating to a group has been demonstrated, there is a reduced requirement for the relevance or necessity of recording the data of any particular individual to be demonstrated.
Conversely, the Court’s confirmation that collection of data on a searchable database interferes with personal privacy may be helpful to others seeking to challenge the bulk interception, collation and retention of information, for example in respect of communications data from internet cable taps. The Bureau of Investigative Journalism is currently challenging in the European Court of Human Rights GCHQ’s cable-tapping programme on the grounds that it breaches privacy rights and also limits journalists’ ability to protect their sources.
Interestingly, the Court highlighted that complaints about data retention can (and should more appropriately) be brought before the Information Commissioner.