Wood v Commissioner of Police for the Metropolis

Article 8 is engaged where the police overtly photograph a person who is lawfully going about his business, retain the images and give no apparent explanation for doing so. The operation must be assessed as a whole, including the intended retention and use of the images.

Retention must remain proportionate throughout its duration. Once the original investigative justification has expired, a brief association with a known activist and the mere possibility of offending at a future event cannot justify continued retention of photographs of a person of good character who is neither suspected nor shown to have committed an offence.

The appellant, a media co-ordinator for an arms-trade campaigning organisation, attended a company annual general meeting and behaved lawfully. Police photographed him outside the meeting, followed him and later established his identity. The images were retained for possible evidential use and to assist policing at a later arms exhibition.

McCombe J dismissed the appellant’s application for judicial review in the Administrative Court: [2008] EWHC Admin 1105. The appellant challenged the taking and retention of the photographs under Articles 8, 10, 11 and 14 of the European Convention on Human Rights. The principal issue was whether the police operation interfered with Article 8 and, if so, whether its continuation was proportionate.

1. Appeal allowed by a majority. Dyson LJ and Lord Collins held that the continued retention of the photographs was disproportionate. Laws LJ dissented on that issue and would have dismissed the appeal.
2. All three members of the court agreed that Article 8(1) of the European Convention on Human Rights was engaged. Although merely taking a photograph in a public place ordinarily does not engage Article 8 without aggravating circumstances, the police operation had to be examined as a whole. The overt taking and retention of the appellant’s image, without an apparent explanation and with an implied possibility of future police use, constituted a sufficiently serious intrusion into his personal autonomy. In the circumstances, he had a reasonable expectation that his privacy would not be invaded in that way.
3. The taking and retention of the images pursued the legitimate aims of preventing or detecting disorder or crime and protecting the rights and freedoms of others. The police nevertheless bore the burden of demonstrating that the interference remained proportionate.
4. Per Dyson LJ, the proportionality assessment required careful consideration of the importance of the right, the nature and extent of the interference and the object pursued. A more compelling justification is required where police retention protects against public disorder or low-level crime rather than terrorism or serious criminal activity.
5. The original evidential justification could not rationally survive for more than a few days after the meeting. By then it was apparent that no relevant offence had been committed and that the appellant had behaved properly. His possible brief association with a person known for unlawful protest did not justify longer retention.
6. The possibility that the appellant might attend and offend at a later arms exhibition was insufficient. That event had not been the principal focus of the operation, and the appellant’s conduct supplied no reasonable basis for believing that he was more likely to offend there than any other citizen of good character. The police therefore failed to justify continued retention as proportionate.
7. The majority expressed no concluded view on whether the interference was “in accordance with the law”. Laws LJ considered that the common-law power to prevent and detect crime satisfied that requirement in view of the modest intrusion.
8. There was no interference with Articles 10 or 11 because the appellant was not exercising the protected freedoms on the occasion. The police acted for reasons arising from their perception of events, so the Article 14 complaint also failed.

1. Court of Appeal (Civil Division): By a majority, allowed the appeal and reversed the dismissal of the judicial review claim: [2009] EWCA Civ 414.
2. High Court, Administrative Court: McCombe J dismissed the application for judicial review, holding that the police conduct did not violate the appellant’s Convention rights: [2008] EWHC Admin 1105.