In the recent case of The Queen (on the application of John Oldroyd Catt) v The Association of Chief Police Officers and the Commissioner of Police of the Metropolis the Court of Appeal held that a protestor's right to privacy under Article 8 of the European Convention on Human Rights had been breached by the respondents.

The facts

Mr Catt, an 88 year old male, had been a frequent protestor against what he considered a variety of forms of injustice. He had attended a number of public demonstrations, which included those organised by "Smash EDO", a protest group campaigning for the closure of EDO; a US owned arms company with a factory in Brighton. Some of the core supporters of Smash EDO are prone to violence and criminal behaviour, which led to a substantial police presence at EDO protests and numerous arrests having been made. It was accepted, however, that Mr Catt had not been convicted of any criminal conduct of any kind in connection with any of the demonstrations that he had attended.

Police officers in attendance at Smash EDO protests recorded what they observed and sometimes supplemented this with photographs and video recordings. This information was duly stored on the National Domestic Extremism Database (a database maintained by the National Public Order Intelligence Unit, for whom the first respondent was originally responsible and the second respondent is currently responsible). Mr Catt became aware that his details were included on the database and made a subject access request. The respondents disclosed 66 entries in respect of Mr Catt spanning March 2005 to October 2009. Mr Catt was never the specific target of any observations, but was referred to incidentally. One typical example is:

"The following protestors were identified as attending: John CATT (frame 63. Elderly male with grey hair and glasses)"

Mr Catt alleged that the information held on the database was of a personal and private nature and that its retention was an unlawful breach of his right to privacy. He sought judicial review of the respondents' retention of the data.

The law

Article 8 of the European Convention on Human Rights provides that everyone has the right to respect for their private life and that:

- "There shall be no interference by a public body authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security [or] public safety...for the prevention of disorder or crime...or for the protection of the rights and freedoms of others"

In this case, it was not in dispute that in order to justify an interference with Article 8 rights, the state was required to demonstrate that the conduct in question satisfied three requirements:

i. it is in accordance with the law;

ii. it is carried out in pursuit of a legitimate aim; and

iii. the interference is proportionate to the aim sought to be achieved.

The Divisional Court held that the information was of a public rather than private nature as it was obtained at public demonstrations. Accordingly, there could be no infringement of his Article 8 rights. In any event, the court held the view (obiter) that, even if the data had of been of a private nature, it was justified under Article 8(2). Mr Catt appealed against the decision.

The Court of Appeal Decision

The Court of Appeal allowed Mr Catt's appeal and held that the retention of this information was in breach of his Article 8 rights.

In reaching this decision the court considered that "private life" is a broad term and not capable of exhaustive definition. The processing and retention of even publicly available information may involve an interference with the subject's rights. As the information held on Mr Catt included his name, age, appearance and history of attending political demonstrations, the court was satisfied that the information was of a private nature and so interfered with Mr Catt's Article 8 rights.

In considering whether this infringement was justified, the court considered the following:

  • It was clear that the respondent's actions were in pursuit of a legitimate aim; namely the prevention of disorder or crime and the protection of the rights and freedoms of others.
  • It was accepted that the demonstrations would attract significant police presence and that the police could be expected to watch what takes place at demonstrations and to compile reports, photographic and written, for retention in intelligence-gathering activities.
  • Proportionality must be judged by reference to the facts of a particular case. In this instance:
    • The information held on Mr Catt was of a very limited nature. There was nothing to suggest that he encouraged criminality or public disorder, much less that he engaged in it.
    • It was clear that police recorded the name of anyone they could identify at such demonstrations, regardless of the nature of their participation.
    • The rules governing the database required information to be retained for a minimum of six years, after which there should be a review. There is then a presumption in favour of retention. Records relating to the lowest level of offending may be automatically disposed of after a defined period rather than reviewed (Mr Catt fell into this category).
    • It was not easy to understand how the information held on Mr Catt could provide any useful assistance to the police. The respondents had not identified an instance where the information had, in fact, been of any assistance at all.
  • The burden of proving that the interference was justified rests on the respondent. On these particular facts, the respondents had not shown that the value of the information was sufficient to justify its continued retention.
  • As the interference was not justified, there was no need to consider whether it was in accordance with the law.

Going forward

It is evident that when determining whether the retention of information relating to an individual's private life is justified, it is essential to consider proportionality in all the circumstances. This necessarily requires consideration of the nature of the information held and the assistance it offers to the police (or other body using it).

Whilst the information held on Mr Catt provided very little, if any, assistance to the police, this decision is fact specific and cannot be easily applied to all databases or information that police forces manage. Indeed, the Court of Appeal acknowledged the value of the database itself and the legitimate aim that it was trying to achieve.

In many cases, the retention of information on that database would be proportionate. There was no indication by the court that retention of information on the database was in any way unlawful.

The implications of this judgment have been further limited by the Court of Appeal who acknowledged the importance to modern policing of detailed intelligence gathering and accepted the need for caution before overriding the judgment of the police about what information is likely to assist them in their task.

This decision will, without question, give rise to further claims. Police forces would be well advised to review all relevant databases for information being retained, the value of which could be viewed, on balance, as being disproportionate to the perceived risk of criminality/public disorder and as such being of no assistance

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.