Privacy and the peace protestor — an extended look

30 January 2019 by Dominic Ruck Keene

Dominic Ruck Keene is a barrister at One Crown Office Row.

The European Court of Human Rights has held in Catt v The United Kingdom (43514/15))  that that the retention by UK police of information on the Domestic Extremism Database about a 90 year-old activist’s presence at political protests was a breach of his Article 8 ECHR rights. The ruling follows the Supreme Court’s contrasting judgment that such gathering and retention had been lawful and a proportionate interference with Mr Catt’s Article 8 ECHR rights.

The background

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. The object of Smash EDO was to close down the activities in the United Kingdom of EDO MBM Technology Ltd, a United States-owned company which manufactured weapons and weapon components and had a factory in Brighton. Serious disorder and criminality were features of a number of Smash EDO protests.

In March 2010 Mr Catt had made a subject access request to the police under section 7 of the Data Protection Act 1998. Sixty six entries from nominal records for other individuals and information reports which incidentally mentioned him were disclosed to him. Those records were held on a police database known as the “Extremism database”. Most of the records related to demonstrations at the office of EDO MBM but thirteen entries related to other demonstrations, including, for example the recording of his attendance at the TUC Conference. In the great majority of cases, the information recorded about Mr Catt was his name, presence, date of birth and address. In some cases his appearance was also described, and there was one photograph.

In August 2010 Mr Catt had asked the Association of Chief Police Officers (“ACPO”) to delete entries from nominal records and information reports which mentioned him. In September 2010 ACPO declined to do so. They did not give reasons.

Mr Catt judicially reviewed ACPO’s refusal to delete the data. He contended that the retention of his data was not “necessary” within the meaning of Article 8 (2) of the Convention.

Before the High Court, a witness statement from the ACPO National Coordinator had clarified that the material which had been disclosed following his subject access request was not all the material held: a considerable amount of further information was stated not to have been disclosed on the grounds that disclosure would prejudice the investigation or detection of crime and that the material was thus exempt from disclosure under section 29 of the Data Protection Act 1998.

The National Coordinator explained that

The term ‘domestic extremism’ is not prescribed by law. It is a descriptor generally used by the police service and partners to describe the activity of individuals or groups who carry out criminal acts of direct action to further their protest campaigns, outside the democratic process.

In January 2012, HM Inspectorate of Constabulary published a report on undercover police operations designed to obtain intelligence about protest movements. The report concluded that information was being unnecessarily retained in police records. An extensive review of the database covering overtly obtained intelligence following the report resulted in the deletion of a large number of nominal records and information reports, including the majority of those about Mr Catt. After that deletion process, the number of reports which mentioned Mr Catt was thought to have been reduced to two.

Following the judicial review proceedings, Mr Catt wrote to the police to make a further subject access request. The police replied that

… the records are held to help UK policing manage a future risk of crime – of which [you] could be the victim. The records themselves should not and will not be disclosed [to you] for what are obvious reasons. An intelligence database loses all efficacy if it is not kept confidential.

Following the Supreme Court case and prior to the Court hearing, the Government informed the Court that they had discovered four additional records mentioning Mr Catt in the database.

Mr Catt complained that the systematic collection and retention of information about him in a searchable database amounted to an unjustified interference with his right to privacy under Article 8 because the database did not provide sufficient safeguards and so was not in accordance with the law. In particular he argued that the scope of the database may be adjusted arbitrarily by the police; data is retained for excessively long periods on the basis that the database as a whole may be useful; and that data is subject to automated and manual processing. Mr Catt claimed the data retained related to his involvement in proper and lawful political protest activity and had never been useful for any police functions.

The UK Government relied on the findings of the Supreme Court to support the argument that the interference with Mr Catt’s Article 8 rights was both very limited, and also in accordance with the law, due to being subject to the Data Protection Act 1998, and a statutory Code of Practice and Guidance. The Government argued that the issues of whether it was necessary to retain the applicant’s data falls within the state’s margin of appreciation.

The Judgment

The Court did not need reach a conclusion as to whether or not the collection was in accordance with the law as it ended up finding that there had been a breach on other grounds.

However, the court commented that the collection of data was undertaken on the basis of general police powers in the common law, with reference to “domestic extremism”. The Court noted that the definition of domestic extremism varied between bodies in the police, and its ambiguity had been criticised by HMIC. Accordingly,

the Court has concerns about the ambiguity of the legal basis for the collection of the applicant’s personal data. In particular the Court notes the loosely defined notion of “domestic extremism” and the fact that applicant’s data could potentially be retained indefinitely.

The Court noted that there was no significant dispute about whether the creation and maintenance of the database by the police pursues a legitimate aim, and held that it did so with “that aim being the prevention of disorder or crime and safeguarding the rights and freedoms of others.”

The Court went to consider whether the interference with Mr Catt’s Article 8 rights was necessary and therefore justified. It reiterated that

It will be necessary in a democratic society if it answers to a “pressing social need”, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are relevant and sufficient. A margin of appreciation must be left to the competent national authorities in this assessment.

With regards to the margin of appreciation the Court acknowledged that that in Article 8 cases it had generally understood the margin of appreciation to mean that

where the independent and impartial domestic courts have carefully examined the facts, applying the relevant human rights standards consistently with the Convention and its case-law, and adequately balanced the applicant’s personal interests against the more general public interest in the case, it is not for it to substitute its own assessment of the merits (including, in particular, its own assessment of the factual details of proportionality) for that of the competent national authorities, unless there are shown to be compelling reasons for doing so.

However, the Court held that there were reasons for doing so in the case of Mr Catt. This was on the basis that personal data revealing political opinion” was one of the special categories of sensitive data attracting a heightened level of protection.

Further, there had been a divergence of opinion between the High Court, the Court of Appeal and the Supreme Court as to whether or not there was an interference with Mr Catt’s Article 8 rights and if so, to what extent. Accordingly “some clarification of these elements appears to be called for.”

The Court also emphasised the importance of examining compliance with the principles of Article 8 where the powers vested in the state are obscure, creating a risk of arbitrariness. Finally, the Court noted that there had been further disclosure of personal data following the Supreme Court judgment.

The Court therefore went to reach its own conclusions about the necessity and proportionality of the interference. It began by accepting that that there had been a “pressing need” to collect the data. It agreed with the Supreme Court that it is in the nature of intelligence gathering that the police will first need to collect the data, before evaluating its value; and also that the police had an obvious role to monitor protests of Smash EDO where the activities of that group were known to be violent and potentially criminal. It held that

even if the applicant himself was not suspected of being directly involved in that group’s criminal activities, it was justifiable for the police to collect his personal data. He had after all decided to repeatedly and publicly align himself with the activities of a violent protest group.

However, the Court held that there was not a pressing need to retain Mr Catt’s data, and accordingly there had been a breach of Article 8. The Court held that in the absence of any rules setting a definitive maximum time limit on the retention of such data, the necessity of the effective procedural safeguards was decisive. The only time limit that Mr Catt could be certain of was that the data would held for a minimum of six years, at which point it would be subject to a scheduled review. Moreover, it was not clear that these six year reviews or any later reviews were conducted in any meaningful way.

Further the Court emphasised that in practice the utility of the additional safeguard of being able to request the disclosure and destruction of his data was limited given the refusal to delete his data or to provide any explanation for its continued retention – including the later disclosure without explanation of the retention of additional data. The Court noted that

at least some of the applicant’s personal data concerning his involvement in non-violent protest was collected over six years ago and remains in the domestic extremism database despite the fact that the police concluded, and the domestic courts affirmed that the applicant was not considered a danger to anyone.

The Court went to re-iterate that the absence of effective safeguards was of particular concern, as personal data revealing political opinions attracts a heightened level of protection. The applicant’s association with peaceful, political events was a vital part of the democratic process and therefore the decisions to retain the data did not take into account the heightened level of protection it attracted. In the circumstances its retention must have had a “chilling effect”.

Therefore, the Court held that that the retention of the Mr Catt’s data concerning peaceful protest had neither been shown to be absolutely necessary, nor for the purposes of a particular inquiry.

The Court also rejected the Government’s argument that it would be too burdensome to review the database and delete all the entries relating to Mr Catt, because the database is not fully automated and noted that

it would be entirely contrary to the need to protect private life under Article 8 if the Government could create a database in such a manner that the data in it could not be easily reviewed or edited, and then use this development as a justification to refuse to remove information from that database.

Comment

This judgment is another in the series of Strasbourg judgments concerning the balance between the surveillance powers of the state versus privacy of the individuals  – see for example the Big Brother judgment.  The GDPR and Data Protection Act 2018 are likely to spur further such challenges in the future. Interestingly, the ECtHR reached a very different decision as to the necessity and therefore lawfulness of the retention of Mr Catt’s data to both the Court of Appeal and Supreme Court.

Further reading: the Blog covered the Supreme Court decision here.