QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE IRWIN
| John Oldroyd Catt
|- and -
|The Commissioner of Police of the Metropolis
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Mr Jeremy Johnson QC (instructed by Directorate of Legal Services, Metropolitan Police) for the Defendants
Hearing dates: 9TH FEBRUARY 2012
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LORD JUSTICE GROSS:
i) The retention of the data engaged and violated his rights under Art. 8 of the European Convention on Human Rights ("ECHR") and was neither a necessary nor proportionate response to the achievement of any legitimate aim.
ii) The retention of the data did not comply with the requirements of the Data Protection Act 1998 ("the DPA").
By whichever route, Mr. Catt seeks an order that, as he has not himself been engaged in criminality, any reference to him should be deleted from the allegedly unlawfully retained material.
i) The First Defendant ("ACPO") is a private company comprising the most senior police officers in the 43 police forces in England, Wales and Northern Ireland. ACPO is not a police service but an association set up to support chief officers and government; inter alia, it coordinates strategic national police policies. The role of NCDE was originally created by an ACPO sub-committee having responsibility for police counter-terrorism ("CT") strategy. His role, as the acronym suggests, together with that of the units under his command, is to coordinate the UK police response to domestic extremism.
ii) The NPOIU was established to facilitate lawful protest but also to respond and prevent, reduce and disrupt public disorder and criminal activity associated with "domestic extremism" (see below) and single issue campaigning in England and Wales. As domestic extremists do not operate within police force boundaries, each force submits their intelligence to NPOIU, to facilitate the development of a national picture and the coordination of investigations.
iii) The term "domestic extremism" is not defined by law. However, as explained in the witness statement of Detective Chief Superintendent Tudway, at the material time the NCDE ("the Tudway statement"), it is a term generally used by the police and associated agencies "to describe the activity of individuals or groups who carry out criminal acts of direct action to further their protest campaign, outside the democratic process".
iv) At all material times, the NCDE and the NPOIU have been under the command or control of either ACPO or the Second Defendant ("the Commissioner" or "the Met" as appropriate). Though it will in due course be necessary to deal with one argument in this connection raised on Mr. Catt's behalf, to my mind, the history of the organisational transfers between ACPO and the Met is neither here nor there. At all events, on the material before the Court, both the NCDE and the NPOIU (apparently now subsumed within the National Domestic Extremism Unit, "the NDEU") have been transferred back to the Met. The Defendants have made it clear that the Commissioner accepts responsibility for the processing of all personal data concerning Mr. Catt by the NCDE and the units under his command.
i) There was agreement that the Commissioner should be joined as the Second Defendant.
ii) Apart from an image retained for evidential purposes (and images of groups of protestors that happen to include Mr Catt) of which no complaint is made, no photograph of Mr. Catt is any longer retained by the Defendants.
iii) Although, in writing, the Defendants contended that disputes of this nature should be resolved in accordance with alternative statutory remedies rather than by way of a claim for Judicial Review, at the hearing they did not seek to oppose Mr. Catt proceeding with this claim. That said, Mr. Johnson QC underlined that the concession made by the Defendants was limited to the present proceedings and should not be taken as extending to any future proceedings.
iv) So far as concerns the original formulation of the claim pursuant to the DPA, Mr. Owen QC, accepts, rightly in my view, that if (1) Art. 8 is engaged but (2) any interference with Mr. Catt's Art. 8 rights is justified, then he cannot succeed under the DPA. Conversely, of course, if Mr. Catt succeeds under Art. 8.2, then he does not need the DPA. Accordingly, the argument under the DPA would only arise if we held (without more) that Art. 8 is not engaged at all – and said nothing as to justification under Art. 8.2. Realistically, Mr. Catt's prospects of success along that route are so remote that (wisely) neither counsel devoted any or significant time to it. Nor will I.
v) The Tudway statement properly indicates that there is further material held in respect of Mr. Catt, considered to be exempt from disclosure pursuant to s.29 of the DPA, on the ground that disclosure would prejudice the investigation or detection of crime. Accordingly, a "closed" version of the Tudway statement has been prepared. For completeness, we record that we have not seen or asked to see that version and were not requested by any party to do so. There has been no suggestion that we cannot adjudicate on the claim without seeing the "closed" materials.
i) Do the collation and retention of the reports engage Art.8.1 and, if yes, interfere with Mr. Catt's Art. 8.1 rights? ("Issue (I): Engagement and Interference")
ii) If so, is the interference with Mr. Catt's Art.8.1 rights justified under Art. 8.2? ("Issue (II): Justification")
"Right to respect for private and family life
1. Everyone has the right to respect for his private…. life…..
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 the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. "
" Until the recent student fee protests the Smash EDO national demonstrations were regarded as amongst the most violent in the UK…."
"There were approximately one hundred and fifty participants with a number of protestors 'masking up' at the form-up point and keeping themselves covered throughout the demonstration. Several different campaigns were represented including Smash EDO, No Borders, Brighton Animal Action, Sussex Students Against the War, Brighton Hove Palestinian Solidarity Campaign, Rhythms of Resistance samba band and a small number of London based activists…..
The march made its way to the police station where police had to cordon off the entrance to avoid a mass incursion into the building. There some minor scuffles and a ….. was arrested after jumping on a police car.
The protestors eventually moved off and made their way to the town centre where further scuffles took place until the protest finished at about 15.00 hours…..
During the event …… an activist believed to be …… is heard to say that Smash EDO will be taking similar measures as the animal rights movement and will begin to target suppliers and courier companies, continue 'noise' protests, direct action demonstrations and encourage other campaigns to take part in their protests."
"John Catt (frame 63. Elderly male with grey hair and glasses)"
On Saturday 19/01/2008 Smash EDO held a protest march in Brighton combining it with a theme of Police Oppression/Right to Protest. One of the protestor[s] identified as attending was John CATT. "
As already indicated and as explained in the Tudway statement, but contrary to Mr. Catt's original contentions, it is readily apparent that he was not the specific focus of the report. Mr. Catt is the only person mentioned in the extracts from the reports disclosed to him under his subject access request – because the names of the other individuals mentioned in the reports as being present were not disclosed to him so as to preserve their data protection rights.
"a) protecting life and property;
b) preserving order;
c) preventing the commission of offences;
d) bringing offenders to justice; and
e) any duty or responsibility of the police arising from common or statute law."
In turn, the Guidance explains the need to collect and retain intelligence as follows (at para. 7.7):
"The retention of information relating to criminal activity and known and suspected offenders allows the Police Service to develop a more proactive approach to policing. By contributing to the identification of criminal patterns and threats and helping to prioritise the subsequent deployment of policing resources, information retention assists forces to prevent and detect crime and protect the public."
"…is held for the purposes of preventing and detecting the criminal and extremist activities of Smash EDO and the apprehension and prosecution of those who commit those offences. The information is further processed for the purposes of discharging the statutory functions of the Chief Officer of Sussex Constabulary in the first instance and the Commissioner [i.e., the Second Defendant] thereafter…. "
The "statutory functions" are those contained in para. 2.2 of the Code (set out above).
ISSUE (I): ENGAGEMENT AND INTERFERENCE
"…to provide the police with a substantial body of intelligence so that it can respond appropriately to demonstrations where there is a risk of criminality or public disorder."
Neither X nor Friedl was distinguishable; both these authorities supported the Defendants' case. On a careful analysis, Wood did not advance Mr. Catt's case and, if anything, supported that of the Defendants.
"….whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy."
"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…. "
"42. ….Whether or not the person was participating in a public event has also been a relevant consideration. There is, however, nothing in the Court's established case-law which suggests that the scope of private life extends to activities which are of an essentially public nature. In this respect, the Court also considers that Lord Rodger ….was correct to draw a distinction between carrying out an activity for personal fulfilment and carrying out the same activity for a public purpose , where one cannot be said to be acting for personal fulfilment alone.
43. The Court shares the view of the House of Lords that hunting is, by its very nature a public activity….. Despite the obvious sense of enjoyment and personal fulfilment the applicants derived from hunting and the interpersonal relations they have developed through it, the Court finds hunting to be too far removed from the personal autonomy of the applicants and the interpersonal relations they rely on to be too broad and indeterminate in scope, for the hunting bans to amount to an interference with their rights under art. 8. "
"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…… 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 as has been submitted 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…. "
"48. For the purpose of delimiting the scope of the protection afforded by Article 8….against arbitrary interference by public authorities, the Commission has attached importance to the questions whether the taking of photographs amounted to an intrusion into the individual's privacy, whether it related to private matters or public incidents, and whether the material thus obtained was envisaged for a limited use or was likely to be made available to the general public…..
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….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….and, on 19 February 1988, of recording the conduct of the participants in the manifestation in view of ensuring 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 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."
"The claimant, who was employed by an association which campaigned against the arms trade, attended the annual general meeting of R plc, which had an association with a company organising trade fairs for, inter alia, the arms industry. Because of that association, there was concern that there might be demonstrations at the meeting, or at a later trade fair, and the Metropolitan Police decided to deploy a number of police officers around the hotel where the meeting was taking place. Photographs were taken of the claimant in the street as he was leaving the hotel after the meeting and police officers….made attempts to establish his identity. There was no evidence that the claimant had been involved in any disturbance at the meeting; he had no criminal convictions and had never been arrested as a result of any campaigning activities or otherwise."
"22. The cluster of values, summarised as the personal autonomy of every individual and taking concrete form as a presumption against interference with the individual's liberty, is a defining characteristic of a free society. We therefore need to preserve it even in little cases. At the same time it is important that this core right protected by article 8, however protean, should not be read so widely that its claims become unreal and unreasonable. For this purpose I think there are three safeguards, or qualifications. 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)….."
" …where the police or other public authority are acting just as the public would expect them to act, it would ordinarily no doubt be artificial and unreal for the courts to find a prima facie breach of article 8 and call on the state to justify the action taken by reference to article 8(2)."
"Their subjection to the discipline of article 8 means that the fair balance which falls to be struck throughout the Convention provisions between the rights of the individual and the interest of the community has to be struck on the facts of this case. That I think is as it should be. "
" I was also disturbed by the fact that notwithstanding that the police had no reason to believe that any unlawful activity had taken place, and still less that Mr. Wood had taken part in any such activity, when he (with Mr. Prichard) walked from the hotel in Grosvenor Square where the meeting had taken place towards Bond Street underground station via Duke Street he was followed by a police car, then questioned about his identity by four police officers, two of whom then followed him on foot and tried to obtain the assistance of station staff to ascertain Mr. Wood's identity from his travel card. "
i) Instructively, in Wood (at ), Laws LJ said of the police activity in X and Friedl (both supra) that it could readily have been expected; it was what the public would have expected. In those circumstances, Laws LJ observed (ibid) that it would "ordinarily be artificial and unreal" to conclude that there had been prima facie breach of Art. 8.1 requiring justification under Art. 8.2. If that same test is applied here, the police response to demonstrations such as those of Smash EDO was, in my judgment, very much as the public would have expected. If anything, the public would have expected no less. The importance and role of intelligence has already been underlined and is very clearly set out in the Tudway statement. Accordingly, on the reasoning in Wood, the preparation and retention for intelligence purposes of reports comprising the data here in issue should not be viewed as intruding into the personal autonomy of Mr. Catt; instead, it was readily to be expected.
ii) In Wood, Laws LJ, with respect (at ), wisely cautioned that the claims of Art. 8, however important to a free society, should not become "unreal and unreasonable". He listed three safeguards or qualifications; the third depended on Art. 8.2 but the first two did not and turned on whether Art. 8.1 was engaged at all. Having regard both to the nature of Mr. Catt's activities and the Smash EDO campaign, in my judgment it would be "unreal and unreasonable" to assert that the police response engaged Art. 8. As already foreshadowed, I would conclude that, on the facts, Mr. Catt did not enjoy a "reasonable expectation of privacy" and that no such expectation was triggered by the wholly understandable compilation and retention of intelligence reports by the Defendants. To my mind, to treat these reports as engaging Art. 8.1, would involve extending Wood in a manner not warranted by the judgments in that case.
ISSUE (II): JUSTIFICATION
"We found that the rationale for recording other material, such as the description of an event, was not sufficient to provide assurance that its continued retention was necessary or justified, given the level of intrusion into people's privacy."
Still further, Mr. Owen emphasised the criticisms developed in the Review (at pp. 29 – 34) as to the governance of the NPOIU and the lack of a "robust" weeding policy; there was the need to document the "objective facts" used to justify retaining intelligence (at pp. 32-33).
"We are looking to identify those persons who are or have organised or are involved in the co-ordination of the event, action or incident including those who have partaken in criminal acts or who are part of a current investigation."
Mr. Catt did not fit within those criteria; as the Tudway statement put it, he "no longer" appeared to be involved in the coordination of Smash EDO events or actions – hence the deletion of the photograph. It did not follow that the Defendants were obliged to delete the data.
"Some serious criminal activities have been associated with public protest. The right to protest is acknowledged in law: but it is not unconditional. In particular, the public right to peaceful protest does not provide a defence for protesters who commit serious crime or disorder in pursuit of their objectives. Police face the challenge of identifying those individuals who are intent on causing crime and disruption, while simultaneously protecting the rights of those who wish to protest peacefully. Key to being able to differentiate between the two is reliable intelligence….. "
i) Must have been taken in pursuance of a legitimate aim; of the legitimate aims enumerated in Art. 8.2, those here relevant are "the prevention of disorder or crime" or "the protection of the rights and freedoms of others";
ii) Must be in accordance with the law;
iii) Must be "necessary in a democratic society" – i.e., proportionate to the legitimate aim pursued.
"…the court is required to carry out a careful exercise of weighing the legitimate aim to be pursued, the importance of the right which is the subject of the interference and the extent of the interference. Thus an interference whose object is to protect the community from the danger of terrorism is more readily justified as proportionate, than an interference whose object is to protect the community from the risk of low level crime and disorder. "
i) The concerns expressed by the (HMIC) Review are of obvious importance but are not, save at most tangentially, directed at the overt policing involved here.
ii) For the reasons given by Mr. Johnson, which I accept and need not repeat, it does not follow from the deletion of the photograph of Mr. Catt that deletion of the (intelligence) reports was likewise required.
iii) I regard as wholly unworkable the suggestion that the Defendants (or individual police forces) are required to make repeated trawls through intelligence reports of the kind encountered here and to consider each individual referred to in isolation. Again with respect, that is to press the claims of Art. 8.1 to "unreal and unreasonable" lengths, to echo once more the words of Laws LJ in Wood (supra). In any event and notwithstanding the fact that Mr. Catt has not committed any criminal offences and is not suspected of having done so, his associations are of intelligence value as already outlined.
Mr Justice Irwin: