Wood v Commissioner of Police for the Metropolis

The mere photographing of a person in a public place will not generally engage Article 8. The court must consider the whole context, including the purpose of the photography, retention and intended use of the images. A systematic or permanent record may cross the Article 8 threshold, but limited police photography and retention for crime-prevention purposes may not do so. In any event, an interference will be lawful and proportionate where supported by common-law police powers, public-law controls and the Data Protection Act 1998. Lawful and limited police activity of this kind does not, without more, interfere with Articles 10 or 11, and Article 14 cannot be engaged without an underlying Convention right.

The claimant, a media co-ordinator for Campaign against Arms Trade, attended Reed Elsevier PLC’s annual general meeting after purchasing a share. Police officers anticipated possible disorder because of earlier demonstrations and the presence of an attendee with convictions for unlawful activity. After the meeting, a police photographer took photographs of the claimant and officers sought, unsuccessfully at first, to establish his identity.

The claimant sought judicial review, declarations, destruction of the photographs and damages. He alleged breaches of Articles 8, 10, 11 and 14 of the European Convention on Human Rights. The central questions were whether the photography, retention and attempted identification interfered with those rights and, if so, whether the conduct was lawful and proportionate.

1. Article 8(1). The taking of the photographs did not itself engage Article 8. The court applied the approach in Campbell, Murray v Big Pictures (UK) Limited and Gillan v Commr of Police for the Metropolis. Whether an intrusion is sufficiently serious is fact-sensitive. Relevant circumstances include the claimant’s attributes, the activity, the place, the purpose of the intrusion, consent, its effect and the intended use of the information.
2. The retention of the images had to be assessed with the circumstances of their taking. The photographs were taken openly in a public place, were not generally disclosed and were retained for limited police purposes. They did not form part of a general dossier. On the authorities, including X v UK, Friedl v Austria, Lupker v The Netherlands, Doorson v the Netherlands, Kinnunen v Finland, Rotaru v Romania and S & Marper, neither taking nor retention interfered with Article 8(1).
3. Article 8(2), alternatively. If there had been an interference, it was in accordance with the law. The common-law powers and duties to prevent and investigate crime, considered in Rice v Connolly and Murray v UK, supplied a legal basis subject to public-law controls. The Data Protection Act 1998, including its definition of processing and its crime-prevention provisions, provided additional safeguards.
4. The conduct was proportionate. The police had genuine concerns about possible disorder, the claimant had been seen with a person ejected from the meeting, and the images were intended for restricted purposes. The court should not second-guess operational police decisions within their accepted powers.
5. Articles 10, 11 and 14. The claimant had not been prevented from attending or speaking at the meeting. The lawful and limited photography and attempts to establish identity did not restrict expression or assembly. In any event, the conduct was justified under Articles 10(2) and 11(2). Article 14 was not engaged because no substantive Convention right was engaged.
6. Disposition. The claim for judicial review was dismissed.

The judgment itself records that permission to apply for judicial review was granted by Lord Justice Sedley sitting in the Court of Appeal. The claim was then determined at first instance in the Administrative Court.