COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
The Hon Mr Justice McCombe
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
LORD COLLINS OF MAPESBURY
|- and -
|Commissioner of Police for the Metropolis
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr Sam Grodzinski (instructed by The Metropolitan Police Service) for the Respondent
Hearing dates : 28 & 29 January 2009
Crown Copyright ©
LORD JUSTICE LAWS:
The Judge's Account
"3. At the relevant time the Claimant was a media co-ordinator employed by an unincorporated association known as Campaign against Arms Trade ('CAAT'). CAAT's name clearly indicates its objects. The Claimant had and has no criminal convictions and has never been arrested as a result of any campaigning activities or otherwise.
4. Reed Elsevier PLC ('Reed') was the parent company of Spearhead Exhibitions Limited ('Spearhead') which is concerned in the organisation of trade fairs for various industries, including the arms industry. One of the events with which it has been concerned is an exhibition held every other year in London called Defence Systems and Equipment International ('DSEi'). Because of the association with Spearhead, Reed's offices in this country had been subjected to demonstrations, some involving criminal damage. Other damage had been caused to Reed's premises in the Netherlands.
5. Prior to Reed's Annual General Meeting on 27 April 2005 (due to take place at an hotel in Grosvenor Square in London) the police were contacted by a member of Spearhead staff explaining that the company had recently noted the purchase of single shares entitling the new holders to attend the forthcoming AGM. Some five or six share transactions were said to have involved members of CAAT. One individual known to hold a proxy for a shareholder was a woman, called in this case 'EA', a member of CAAT until 2003, who had a history of unlawful activity against organisations involved in the defence industry and had been convicted of a number of offences in that context.
6. The Defendant took the view that there was a real possibility of demonstration at the AGM and that unlawful activity might occur. He (or his senior officers) therefore decided to deploy a number of officers around the hotel where the meeting was to be held. One inspector, three sergeants and 21 constables were so allocated. In addition, two 'Forward Intelligence Teams' ('FITs') of three and two officers respectively and an 'Evidence Gathering ('EG') Team' of three officers and a civilian photographer were engaged. These officers were in uniform and the photographer, although a civilian, wore a uniform identifying him as engaged with the police.
7. The EG team gathers intelligence by taking photographs and making notes of significant events which may be thought to be of potential evidential value; the FIT teams are used to monitor people's movements at events of the kind in question to assist in the efficient deployment of resources.
8. Before the meeting a CAAT member ('KB') approached the officer in charge and asked to hand out leaflets at the hotel entrance to those attending the AGM. The officer agreed to this on the understanding that no obstruction would be caused and KB would be acting alone. KB did carry on her leafleting activity without problems arising.
9. The Claimant attended the AGM having previously bought a share in Reed. He attended with about six other CAAT members, but entered the meeting with only one other. He states that his purpose was to learn more about Reed's involvement with Spearhead and to ask appropriate questions.
10. At the meeting two people, EA (already mentioned) and one RH, were ejected by private security staff, apparently after chanting slogans. There is no suggestion that the Claimant was in any way involved in this activity. His participation appears to have been confined to asking one unobjectionable question. There appears to have been no other disturbance at the meeting.
11. The Claimant left the meeting as soon as formal business was over, without staying for the social reception held thereafter for which other shareholders did stay. He left the hotel in the company of another CAAT employee, a Mr. Ian Prichard. They spoke to KB and, while they were doing so, a man (whom the Claimant believed to be a police officer, but who was in fact the civilian photographer already mentioned) got out of a police vehicle and began to take photographs. There is a dispute as to how many photographs were taken but the Claimant's evidence is that the photographer was working continuously for some time and approached to within two metres of the Claimant and Mr. Prichard. The photographer says that he customarily tries to keep a safe distance from subjects in order not to invade their 'personal space' and for his own safety and the safety of his equipment. In evidence, seven images have been produced of which only two show the Claimant clearly.
12. The Claimant complains that he was not told the reason why the photographs were being taken. On the other hand, it appears that he did not ask the officers for the reason either.
13. The Defendant's evidence is that, after eviction from the meeting, EA joined KB outside the hotel. It is stated that the Claimant and Mr. Prichard stopped to speak to KB (as they accept) and that they were joined by EA. The Claimant says that he cannot recall EA joining the group. In his evidence, a sergeant from the EG team states that he decided that it was appropriate to photograph the Claimant and to try to establish his identity. His reasons for doing so were the sighting of the Claimant in a group with EA and the possibility that unlawful activity in the meeting, from which EA had been ejected, might later come to light. Other officers also give evidence of having seen the Claimant with EA at this time.
14. The Claimant and Mr. Prichard walked away from the hotel towards an Underground railway station. They were followed by officers from the EG team. The Claimant says that a police vehicle pulled up near to him and Mr. Prichard and about four officers came and stood near to them. The Claimant was asked for his identity, as was Mr. Prichard. Mr. Prichard identified himself, but the Claimant asked whether he was obliged to do so and, on being told he was not, declined to answer. They both refused to answer questions about the AGM. They were told that they were free to leave the scene and that they were not being detained, although two officers then followed them to the station, trying at one stage to get the assistance of railway staff to obtain the Claimant's identity from the Claimant's travel document. The Defendant's evidence is that the two men were followed in order to see whether they were truly leaving the area or whether they might return to the venue of the AGM or become involved with a different demonstration which was thought by the police to be occurring in St. James's Square. There is no evidence to suggest that the exchanges between the police on the one hand and the Claimant and Mr. Prichard on the other hand were other than polite on each side.
15. The Defendant has adduced detailed evidence as to retention of photographs taken in such circumstances as these. It appears that they are retained subject to strict controls. Usually they are kept only for use by officers of the Public Order branch of the force. Copies are not permitted to be taken outside the offices of that branch. The one exception to this is that at future public events where there is a potential need to identify persons involved in unlawful activity, who may have participated in similar events previously, a sheet of relevant images may be given to a limited number of EG and/or FIT team members. However, the images do not identify the names of those depicted, each image merely being allocated a code. The sheets are returned after the event and are then destroyed.
16. It seems that, in this case, the police did subsequently find out the Claimant's identity. They apparently found from company records the names of the new shareholders in Reed. They were able to ascertain the identities of all others, apart from the Claimant, and by process of elimination worked out that the person photographed in the company of Mr. Prichard and others was the Claimant.
17. The perceived need for photographs generally in the present case appears to have been because of police fears of unlawful activity at the DSEi event to be held in September 2005, after the disturbances at Reed's premises in this country and in the Netherlands, and the association on this occasion of the Claimant and others with EA who had previous convictions for unlawful activities in related manifestations. The Defendant says that, but for the proceedings in this court, the retained photographs of the Claimant would have been destroyed shortly after the September 2005 event. It is said that such photographs are not accessible for general intelligence purposes but are used only if a civil claim is made against the police in relation to the recorded events or if a specific offence has come to light and it is believed that the images may provide material evidence in relation to that offence.
18. The Claimant says that he felt scared and intimidated by the events in issue. He also says that the incident was 'extremely upsetting' and that he 'felt shaken and frightened as a result'. He says that he feels very uncomfortable that information may be kept about him indefinitely and may be used without his consent or knowledge. The Defendant, through Counsel, accepts that the Claimant may have felt 'unsettled' by what occurred. However, the Claimant relies on his unchallenged evidence to the effect that I have just outlined, asserting that the incident was more than just 'unsettling' so far as he was concerned."
What Did the Police Hope to Gain?
What Was Done with the Photographs?
The Published Policy
"The Metropolitan Police Service (MPS) is committed to providing MPS personnel with a particularly useful tactic to combat crime and gather intelligence and evidence relating to street crime, anti-social behaviour and public order.
It may be used to record identifiable details of subjects suspected of being involved in crime or anti-sociable [sic] behaviour such as facial features, visible distinctive marks e.g., tattoos, jewellery, clothing and associates for the purposes of preventing and detecting crime and to assist in the investigation for all alleged offences.
This tactic may also be used to record officers' actions in the following circumstances. Maintaining public confidence and to justify police tactics. During incidents where police face substantial levels of violence, immigration arrests, detention of mentally ill persons and actions taken during high profile or critical incidents.
To demonstrate to the public that cameras are deployed overtly officers should clearly identify themselves as police officers or police staff and not hide the fact that they are filming. This can be achieved by:
- Use of uniformed officers
- Use of marked vehicles...
When a pre-planned deployment is authorised officers must be able to clearly state the reasons for the filming or photography and provide a copy of an explanatory leaflet. These contain details of the purpose of the filming and provide guidance on how members of the public may obtain further information and access to their images."
Then under the heading "Associated Documents and Policies" three items are listed, of which the first is "Standard Operating Procedures for 'Use of Overt Filming/Photography'". This document has not been disclosed.
THE CONVENTION RIGHTS
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public 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, public safety or... for the prevention of disorder or crime... or for the protection of the rights and freedoms of others.
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security,... public safety, for the prevention of disorder or crime... for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are 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...
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
It is not I think necessary to cite the material provisions of the Human Rights Act 1998 (HRA), which gave effect to the ECHR in our domestic law. It is common ground (and elementary) that the Metropolitan Police were by law obliged to respect the appellant's Convention rights.
(1) The Scope of Article 8
"50. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person's name, or a person's picture.
Furthermore, private life, in the Court's view, includes a person's physical and psychological integrity; the guarantee afforded by Art. 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of 'private life'.
51. The Court has also indicated that, in certain circumstances, a person has a 'legitimate expectation' of protection and respect for his or her private life. Accordingly, it has held in a case concerning the interception of telephone calls on business premises that the applicant 'would have had a reasonable expectation of privacy for such calls'.
52. As regards photos, with a view to defining the scope of the protection afforded by Art.8 against arbitrary interference by public authorities, the Commission had regard to whether the photographs related to private or public matters and whether the material thus obtained was envisaged for a limited use or was likely to be made available to the general public.
53. In the present case there is no doubt that the publication by various German magazines of photos of the applicant in her daily life either on her own or with other people falls within the scope of her private life..."
"66. The Court recalls that the concept of 'private life' is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 III, 35 EHRR 1, and Y.F. v. Turkey, no. 24209/94, §33, ECHR 2003 IX, 39 EHRR 34). It can therefore embrace multiple aspects of the person's physical and social identity (see Mikulic v. Croatia, no. 53176/99, § 53, ECHR 2002-I, BAILII:  ECHR 27). Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8 (see, among other authorities, Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR 2001, 33 EHRR 10, I with further references, and Peck v. the United Kingdom, no. 44647/98, § 57, ECHR 2003 I, 36 EHRR 41). Beyond a person's name, his or her private and family life may include other means of personal identification and of linking to a family (see mutatis mutandis Burghartz v. Switzerland, 22 February 1994, BAILII:  ECHR 2, § 24, Series A no. 280 B; and Unal Tekeli v. Turkey, no. 29865/96, §42, ECHR 2004 X (extracts), 42 EHRR 53). Information about the person's health is an important element of private life (see Z v. Finland, 25 February 1997, §71, Reports of Judgments and Decisions 1997 I, 25 EHRR 371). The Court furthermore considers that an individual's ethnic identity must be regarded as another such element (see in particular Article 6 of the Data Protection Convention quoted in paragraph 41 above, which lists personal data revealing racial origin as a special category of data along with other sensitive information about an individual). Article 8 protects in addition a right to personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Burghartz, cited above, opinion of the Commission, p. 37, § 47, and Friedl v. Austria, judgment of 31 January 1995, Series A no. 305-B, opinion of the Commission, p. 20, § 45, 21 EHRR 83). The concept of private life moreover includes elements relating to a person's right to their image (Sciacca v. Italy, no. 50774/99, § 29, ECHR 2005-I, 43 EHRR 20).
67. The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8 (see Leander v. Sweden, 26 March 1987, §48, Series A no. 116, 9 EHRR 433). The subsequent use of the stored information has no bearing on that finding (Amann v. Switzerland [GC], no. 27798/95, §69, ECHR 2000-II, 30 EHRR 843). However, in determining whether the personal information retained by the authorities involves any of the private-life aspects mentioned above, the Court will have due regard to the specific context in which the information at issue has been recorded and retained, the nature of the records, the way in which these records are used and processed and the results that may be obtained (see, mutatis mutandis, Friedl, cited above, §§49-51, and Peck v. the United Kingdom, cited above, § 59)."
"It is true that 'private life' has been generously construed to embrace wide rights to personal autonomy. But it is clear Convention jurisprudence that intrusions must reach a certain level of seriousness to engage the operation of the Convention, which is, after all, concerned with human rights and fundamental freedoms, and I incline to the view that an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach that level."
"Accordingly, in deciding what was the ambit of an individual's 'private life' in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy."
In the same case Lord Hope said at paragraph 99:
"The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity."
In Murray v Big Pictures (UK) Ltd Sir Anthony Clarke MR referred to both of these passages, and stated:
"35... [S]o far as the relevant principles to be derived from Campbell are concerned, they can we think be summarised in this way. The first question is whether there is a reasonable expectation of privacy. This is of course an objective question. ...
36. As we see it, the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher."
(2) Article 8(1) Was There a Prima Facie Violation?
(2a) Is Article 8(1) Engaged by the Mere Taking of the Photographs?
"In the present case the pictures were taken without Miss Campbell's consent. That in my opinion is not enough to amount to a wrongful invasion of privacy. The famous and even the not so famous who go out in public must accept that they may be photographed without their consent But the fact that we cannot avoid being photographed does not mean that anyone who takes or obtains such photographs can publish them to the world at large "
Lord Hope of Craighead said this at paragraph 122:
"The photographs were taken of Miss Campbell while she was in a public place, as she was in the street outside the premises where she had been receiving therapy. The taking of photographs in a public street must, as Randerson J said in Hosking v Runting  3 NZLR 385, 415, para 138, be taken to be one of the ordinary incidents of living in a free community. The real issue is whether publicising the content of the photographs would be offensive..." (see also:  3 NZLR 385)
Finally, Baroness Hale of Richmond at paragraph 154:
"Publishing the photographs contributed both to the revelation and to the harm that it might do. By themselves, they are not objectionable. Unlike France and Quebec, in this country we do not recognise a right to one's own image: cf Aubry v Editions Vice-Versa Inc  1 SCR 591. We have not so far held that the mere fact of covert photography is sufficient to make the information contained in the photograph confidential. The activity photographed must be private. If this had been, and had been presented as, a picture of Naomi Campbell going about her business in a public street, there could have been no complaint..."
(2b) Article 8(1): the Taking of the Photographs and their Use
"24... It is impossible... to 'compartmentalise' the taking of the photographs without regard to the circumstances in which they were taken, the purposes of their retention, whether, for example, it is intended thereby to identify the individual and whether there is proper and certain legal control over the photography as a whole. He submits that here the Claimant's identity was discovered and there was a degree of systematic gathering of information about CAAT activity and its members. He pointed also to evidence from the Claimant's solicitor of other occasions when members of CAAT have been similarly photographed."
"The Commission has noted here the following elements in the case as it has been presented: first, that there was no invasion of the applicant's privacy in the sense that the authorities entered her home and took photographs of her there; secondly, that the photographs related to a public incident in which she was voluntarily taking part; and thirdly, that they were taken solely for the purpose of her future identification on similar public occasions and there is no suggestion that they have been made available to the general public or used for any other purpose. Bearing these factors in mind, the Commission finds that the taking and retention of the photographs of the applicant could not be considered to amount to an interference with her private life within the meaning of Article 8...
An examination by the Commission of the applicant's complaint... shows that the taking of her photographs was part of and solely related to her voluntary public activities and does not therefore disclose any appearance of a violation of the rights and freedoms set out in the Convention and in particular in the two articles just considered."
"49. In the present case, the Commission has noted the following elements: first, there was no intrusion into the 'inner circle' of the applicant's private life in the sense that the authorities entered his home and took the photographs there; secondly, the photographs related to a public incident, namely a manifestation of several persons in a public place, in which the applicant was voluntarily taking part; and thirdly, they were solely taken for the purposes, on 17 February 1988, of recording the character of the manifestation and the actual situation at the place in question, eg the sanitary conditions, and, on 19 February 1988, of recording the conduct of the participants in the manifestation in view of ensuing investigation proceedings for offences against the Road Traffic Regulations.
50. In this context, the Commission attaches weight to the assurances given by the respondent Government according to which the individual persons on the photographs taken remained anonymous in that no names were noted down, the personal data recorded and photographs taken were not entered into a data processing system, and no action was taken to identify the persons photographed on that occasion by means of data processing.
51. Bearing these factors in mind, the Commission finds that the taking of photographs of the applicant and their retention do not amount to an interference with his right to respect for his private life within the meaning of Article 8(1) of the Convention."
"9... I was... confused as to why this was happening to me, as I knew I had not done anything wrong.
11. I felt threatened and uncomfortable throughout this. At no point would any of the officers explain why we were being photographed or questioned. It was my unease at this and my knowledge that I had not done anything wrong which meant that I chose not to give them my identity...
15. The knowledge that I have nothing to hide in terms of my own actions does not make this situation any easier for me. Instead it makes me more anxious that the photographs were taken when there did not seem to be any reasonable explanation as to why there was a need to do so.
16. I feel that I do not know how any information might be used by the police in the future, and that I had no control over the photographs being taken. I feel very uncomfortable that the information might be kept on my file by police indefinitely..."
"The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8..."
And at paragraph 121 the court said:
"The Government contend that the retention could not be considered as having any direct or significant effect on the applicants unless matches in the database were to implicate them in the commission of offences on a future occasion. The Court is unable to accept this argument and reiterates that the mere retention and storing of personal data by public authorities, however obtained, are to be regarded as having direct impact on the private-life interest of an individual concerned, irrespective of whether subsequent use is made of the data (see paragraph 67 above)."
However the impact of these observations on the present case is I think weakened by the fact that the appellant's image was not placed on the CO11 database, which I have described in dealing with the new material arising from the Guardian article, nor on any other database. And I should make clear my view that this new material does not assist the appellant in any respect. The fact that the CO11 database exists cannot conceivably support the appellant's contention that his Article 8 rights have been interfered with, since his image was never placed upon it; and he has no proper business advancing any arguments if this is what he seeks to do to assault the practice or procedure of the respondent (as regards the storage and use of information) in circumstances where any such arguments cannot actually bear on his claim.
(3) Article 8(2)
(3a) "In Accordance with the Law"
"The taking and, by implication, also the retention of a photograph of the first applicant without her consent had no statutory basis but, as explained by the trial court judge and the Court of Appeal, were lawful under common law.
The impugned measures thus had a basis in domestic law. The Court discerns no reason, on the material before it, for not concluding that each of the various measures was 'in accordance with the law', within the meaning of Article 8(2)."
"69. Mr Westgate submitted that the decision in Murray was 'wrong'. He was prepared to accept that Rice v Connolly might provide the outline of a legal basis for what was done here and prevents the conduct in issue from being actionable in tort, but it does not address the recognised requirements of accessibility, certainty and precision now recognised in European jurisprudence. In answer, Mr. Grodzinski submitted that the decision in Murray was that of the Full Court and post-dated Malone (1985) 7 EHRR 14, Silver v UK (1983) 5 EHRR 347 and Sunday Times v UK 2 EHRR 245 in which the principles of precision, certainty and accessibility were fully considered; it was inconceivable, it was submitted, that the Court would not have had those principles well in mind.
70. I recognise that the European Court in Malone stated (at paragraph 68 of its judgment, (1985) 7 EHRR 14 at p. 41) that the degree of precision required of the law will depend on the subject matter and, on any footing, any interference with the Claimant's rights under Article 8 must, in my view, be no more than modest. In the circumstances, it appears that the common law power relied upon by the defendant must, in the circumstances of this case, be sufficiently in accordance with the law to satisfy Article 8(2). Further, as the Defendant rightly submits, the exercise of that power is subject to public law control reaching over and above the inherent 'lawfulness' of the actions. In addition, I cannot accept that it is my place simply to dismiss the decision of the Full Court in Murray as 'wrong', as Mr. Westgate would have me do. That would do quite inadequate respect for the decisions of that court, the ultimate arbiter of these matters, in a case in close proximity of subject matter to the present one."
"56. As the concluding words of para 67 of the decision in Malone v United Kingdom (1985) 7 EHRR 14 indicate, the sufficiency of these measures must be balanced against the nature and degree of the interference with the citizen's Convention rights which is likely to result from the exercise of the power that has been given to the public authority. The things that a constable can do when exercising the section 44 [sc. of the Terrorism Act 2000] power are limited by the provisions of section 45(3) and 45(4). He may not require the person to remove any clothing in public except that which is specified, and the person may be detained only for such time as is reasonably required to permit the search to be carried out at or near the place where the person or vehicle has been stopped. The extent of the intrusion is not very great given the obvious importance of the purpose for which it is being resorted to. In my opinion the structure of law within which it is to be exercised is sufficient in all the circumstances to meet the requirement of legality."
Malone concerned telephone intercepts. As McCombe J observed at paragraph 70, the Strasbourg court in that case stated at paragraph 68 that the degree of precision required of the law will depend on the subject matter. The previous paragraph, referred to by Lord Hope in Gillan, has this:
"Undoubtedly, as the Government rightly suggested, the requirements of the Convention, notably in regard to foreseeability, cannot be exactly the same in the special context of interception of communications for the purposes of police investigations as they are where the object of the relevant law is to place restrictions on the conduct of individuals. In particular, the requirement of foreseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. Nevertheless, the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence."
It is also interesting to note this observation by the Strasbourg court in Marper:
"96. The level of precision required of domestic legislation which cannot in any case provide for every eventuality depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-XI, with further references, 34 EHRR 55)."
"My Lords, it is of paramount importance that law enforcement agencies should take full advantage of the available techniques of modern technology and forensic science. Such real evidence has the inestimable value of cogency and objectivity. It is in large measure not affected by the subjective defects of other testimony. It enables the guilty to be detected and the innocent to be rapidly eliminated from inquiries. Thus in the 1990s closed circuit television ('CCTV') became a crime-prevention strategy extensively adopted in British cities and towns. The images recorded facilitate the detection of crime and prosecution of offenders. Making due allowance for the possibility of threats to civil liberties, this phenomenon has had beneficial effects."
"117. While neither the statistics nor the examples provided by the Government in themselves establish that the successful identification and prosecution of offenders could not have been achieved without the permanent and indiscriminate retention of the fingerprint and DNA records of all persons in the applicants' position, the Court accepts that the extension of the database has nonetheless contributed to the detection and prevention of crime.
118. The question, however, remains whether such retention is proportionate and strikes a fair balance between the competing public and private interests.
119. In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken and retained from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed...; in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.
125. In conclusion, the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society. This conclusion obviates the need for the Court to consider the applicants' criticism regarding the adequacy of certain particular safeguards, such as too broad an access to the personal data concerned and insufficient protection against the misuse or abuse of such data."
ARTICLES 10, 11 AND 14
Lord Justice Dyson:
The relevant facts
"The reason why I decided to request the use [of] FITs and EGs was because of the ongoing nature of the protests against companies involved in the arms trade and the attendance of known trouble makers so that I believed that public disorder may result. In such situations it is vital that the police know who has attended and what their involvement is".
"Intelligence had to be gathered at the time so that, should disorder result or offences subsequently come to light, those guilty of an offence could be identified so that they could be arrested, if not at the time then in the future. Thus if those attending the AGM caused trouble they could be identified and either arrested at the time or if appropriate, shortly after. Further, I took the view that if those individuals who might attend and commit public order or other offences at the DSEi fair in September could be identified in advance, by ascertaining their identity at the Reed AGM, that would help to police the DSEi event and deal with any such offences".
"The decision to take the photographs of the claimant and IP was not solely because of their association with EA but also because the photographs could be of subsequent evidential value if any, as yet undiscovered, offences had been committed inside the hotel. Such offences are not always immediately apparent and may have become known only after the meeting was over."
"In accordance with the law"
"Necessary in a democratic society": proportionality
"An interference will be considered "necessary in a democratic society" for a legitimate aim if it answers a "pressing social need" and, in particular, 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".
Lord Collins of Mapesbury :