Catt v The Commissioner of Police of the Metropolis

The overt compilation and retention of intelligence reports recording a person’s attendance at public political demonstrations will not necessarily engage Article 8. The central question is whether, viewed factually, the person had a reasonable expectation of privacy. Where Article 8 is engaged, retention may nevertheless be justified if it pursues a legitimate aim, is in accordance with the law, and is proportionate. Intelligence concerning public-order risks may be retained collectively rather than repeatedly weeded by reference to each individual mentioned, particularly while the relevant campaign continues.

The claimant sought judicial review of the retention of police intelligence reports referring to his attendance at demonstrations associated with Smash EDO. He argued that the reports engaged and unlawfully interfered with his rights under Article 8 of the European Convention on Human Rights and that the retention failed to comply with the Data Protection Act 1998.

By the hearing, the claim principally concerned the compilation and retention of reports recording the claimant’s public activities. The issues were whether Article 8 was engaged and, if so, whether the interference was justified under Article 8(2).

1. The claim for judicial review was dismissed. The compilation and retention of the reports did not engage or infringe Article 8(1). They recorded the claimant’s participation in public demonstrations, the purpose of which was to communicate political views publicly. He therefore had no reasonable expectation of privacy in the material.

2. The approach in Campbell v MGN Ltd [2004] UKHL 22 and R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12 confirmed that reasonable expectation of privacy and the required level of seriousness were fact-sensitive questions. The reasoning in R (Wood) v Commissioner of Police of the Metropolis [2009] EWCA Civ 414 did not require Article 8 to be engaged. Wood concerned intrusive and unexpected police activity away from the public meeting, whereas the present reports merely recorded conduct at the demonstrations.

3. Alternatively, assuming Article 8(1) was engaged, the interference was justified under Article 8(2). The retention pursued the legitimate aims of preventing disorder or crime and protecting the rights and freedoms of others. It was in accordance with the law despite changes in organisational responsibility between police bodies.

4. The retention was proportionate. The interference was marginal, while the intelligence value arose from the campaign’s persistent criminality and public-order consequences and from the need to understand relationships and tactics within protest groups. The police were not required repeatedly to isolate and delete every reference to an individual who had committed no offence. A later review when the campaign ended was appropriate, although its outcome was not predetermined. Irwin J added that some information might remain justifiably retainable after the campaign because of possible links with later groups.