Catt, R (on the application of) v The Association of Chief Police Officers of England, Wales and Northern Ireland & Ors

Systematic collection, processing and retention of personal information by public authorities may engage article 8 even where the information comes from public activities or open sources. A reasonable expectation of privacy remains relevant, but it is not conclusive where personal data are entered on a searchable database or retained with other records.

An interference must be lawful, pursue a legitimate aim and be proportionate. The authority must justify each stage, including the duration, review and destruction of retained information. General assertions of policing or intelligence value are insufficient. Retention of information about a peaceful protester’s attendance and a single alleged harassment incident was disproportionate.

Two judicial review appeals concerned police retention of personal information. Mr Catt challenged entries on the National Domestic Extremism Database recording his attendance at public demonstrations. Ms T challenged a police information notice and related Crime Reporting Information System record concerning an alleged homophobic insult; the police later agreed to expunge the material.

The Divisional Court dismissed Mr Catt’s claim, holding the information public and, in any event, retention justified: [2012] EWHC 1471 (Admin). Eady J held that Ms T’s article 8 rights were engaged but the interference justified: [2012] EWHC 1115 (Admin). The appeals concerned whether collection and retention engaged article 8 and, if so, whether the interference was lawful and proportionate.

1. Both appeals were allowed. The systematic processing and retention of personal information may engage article 8 even when the information was obtained from public activities. A reasonable expectation of privacy remains a starting point, but it is not decisive where information is entered on a searchable database. The court applied the principles in S v United Kingdom (2009) 48 E.H.R.R. 50 and approved the approach in R (C) v Commissioner of Police of the Metropolis [2012] EWHC 1681 (Admin).
2. Justification under article 8(2) requires the interference to be in accordance with the law, pursue a legitimate aim and be proportionate. The court accepted that preventing disorder and crime and protecting the rights of others were legitimate aims. Legality was closely connected with proportionality, so it was unnecessary to decide it after proportionality failed. Proportionality requires a fair balance and attention to the nature of the information, its collection and processing, the persons able to use it, the retention period, review arrangements and destruction. The burden of justification rests on the public authority.
3. For Mr Catt, the public nature of the demonstrations and the routine nature of police intelligence gathering did not justify indefinite retention of his name, appearance, age and attendance history. The respondent produced no sufficient evidence that the particular information had policing value. The case was distinguished from Kinloch v Lord Advocate [2012] UKSC 62, where observations were retained for use as evidence for a limited period.
4. For Ms T, the warning letter, the CRIS report and their retention had to be viewed together. Failure to obtain her comments before issuing the letter did not itself render the procedure unlawful. A blanket twelve-year retention policy for a single alleged act, where no further incident or continuing risk existed, was unnecessary and disproportionate. The court noted, without deciding, that fairness might ordinarily require inviting the subject’s account before police action was taken.

• Court of Appeal (Civil Division): In [2013] EWCA Civ 192, both appeals were allowed.
• High Court of Justice, Administrative Court: The Divisional Court dismissed Mr Catt’s claim in [2012] EWHC 1471 (Admin). Eady J dismissed Ms T’s claim in [2012] EWHC 1115 (Admin).