Mengesha v Commissioner of Police of the Metropolis

Police may ask a person to provide identification voluntarily, but they may not make the provision of personal details or submission to filming a condition of release from lawful containment. Containment is a restricted common-law power, available only to prevent an imminent breach of the peace where no less intrusive measure would suffice. It cannot be maintained for the separate purpose of identifying persons who have been contained.

A statutory power to search does not, without express provision, authorise the police to obtain names, addresses, dates of birth or linked photographs. The collection and retention of individually identifiable images and personal data may engage Article 8 of the European Convention on Human Rights. Retention must have a lawful basis and comply with published, proportionate arrangements.

The claimant was lawfully contained during a public demonstration because the police reasonably apprehended an imminent breach of the peace. As she was released, police officers required her to provide personal details and to be filmed for possible later identification of persons involved in criminal acts.

The Commissioner accepted that such requirements could not lawfully be imposed as the price of release, but contended that the claimant had complied voluntarily. The claimant also challenged the retention of the resulting film and personal data. The issues were whether the identification process was voluntary and lawful, and whether the subsequent retention was justified.

1. Identification was compulsory in fact. The evidence established that persons within the containment were required to provide their details and submit to filming before release. The surrounding circumstances conveyed that compliance was obligatory. The claimant therefore had not acted voluntarily.
2. Scope of containment. Containment is lawful only to prevent a breach of the peace that is occurring or reasonably thought to be imminent, where other measures would be ineffective, and subject to proportionality. It cannot be maintained to obtain identification by questioning or filming. The police cannot create additional powers merely because they consider them reasonable. The principles in R (Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55 were applied.
3. Statutory powers. Section 50 of the Police Reform Act 2002 permits a constable in uniform, on the specified anti-social behaviour ground, to require a name and address. Section 64A of the Police and Criminal Evidence Act 1984 permits photographs in the statutory arrest context. Section 60 of that Act authorises searches but does not authorise obtaining identity details. The police therefore had no statutory authority for the identification process.
4. Voluntary requests. The police may ask for a person’s name and address even without suspicion of an offence. That principle, recognised in Rice v Connolly [1966] 2 QB 414, Donnelly v Jackman [1971] WLR 562 and Ricketts v Cox [1982] 74 Cr App R 298, did not assist because the process here was not voluntary.
5. Retention. The close-up filming of identifiable, non-arrested individuals linked to their personal details engaged Article 8. Retention was not in accordance with the law because there was no statutory power, published policy or rules governing it. The reasoning in R (Wood) v Commissioner of Police of the Metropolis [2009] EWCA Civ 414 and R (C) v Commissioner of Police of the Metropolis [2012] EWHC 1681 (Admin) was applied.
6. The judicial review application was granted. The court awaited written submissions on the form of order.