R (on the application of Catt) v Commissioner of Police of the Metropolis and another

Systematic collection and retrievable storage by the state of personal information may engage article 8, even when the recorded conduct occurred in public. Mere observation will ordinarily be insufficient.

Police retention is justified where it rests on accessible and predictable rules, serves a legitimate policing purpose and is proportionate. Intelligence may include incidental information about peaceful participants where that information assists the assessment of risks, investigation of offences or understanding of groups associated with disorder. Restrictions on use and disclosure, together with effective review and deletion, are important safeguards.

Retention periods for harassment records must reflect their continuing policing value. A flexible standard practice may be lawful, but retention cannot continue after the information has ceased to serve a useful policing purpose.

Mr Catt challenged the retention of references to his attendance at political demonstrations in police intelligence reports. He had not been convicted of any offence, and the surviving references appeared incidentally in reports about demonstrations or other people. Ms T separately challenged the retention of a harassment warning and its associated police record following a minor disputed incident with a neighbour's visitor.

Both judicial review claims failed at first instance. Ms T's claim was dismissed by Eady J in [2012] EWHC 1115 (Admin), [2012] 1 WLR 2978. The Court of Appeal heard the cases together and allowed both appeals: [2013] EWCA Civ 192, [2013] 1 WLR 3305. The police appealed to the Supreme Court.

The central issues were whether systematic retention of the information engaged article 8 of the European Convention on Human Rights, whether the governing legal framework was sufficiently accessible and predictable, and whether retention was proportionate to legitimate policing purposes.

1. Disposition. The police appeals were allowed and both judicial review claims were dismissed. The decision concerning Mr Catt was by a majority of four to one. The appeal concerning Ms T was allowed unanimously, although the Justices relied on overlapping alternative reasons.

2. Article 8 and legality. The systematic collection and retrievable storage of personal information interfered with private life, although the underlying acts occurred publicly and no intrusive means were used. Mere public observation would not ordinarily engage article 8, but systematic retention could do so. The common law authorised the police to obtain and store public information for policing purposes. The Data Protection Act 1998, the statutory code and the published management guidance supplied sufficiently clear principles, restrictions, review procedures and remedies to make the interference in accordance with law. Exhaustive codification of every retention decision was neither possible nor required.

3. Mr Catt. Lord Sumption, with Lord Neuberger's agreement, held that the surviving incidental references were proportionate. Lady Hale and Lord Mance agreed with that conclusion. The information was neither intimate nor stigmatising, was restricted to policing purposes and was subject to review. Its retention assisted assessment of risks, investigation of offences and understanding of the organisation and methods of groups persistently associated with disorder. Intelligence is commonly acquired before its significance can be known, and information about a peaceful participant may remain relevant to understanding a violent campaign. Requiring every report to be filleted for every incidental name would impose a disproportionate burden and impair its intelligence value.

4. Ms T. Lord Sumption, Lord Neuberger and Lord Mance concluded that, even if the stated seven- and 12-year periods were unjustifiable for this minor incident, the actual retention for two and a half years was not disproportionate. No universal one-year limit could be imposed because harassment cases vary greatly. Lady Hale, Lord Toulson and Lord Mance held that a standard practice of retaining such records for several years was not unlawful if it remained flexible and permitted deletion once the information ceased to have useful policing value. Earlier complaints may materially inform the response to later neighbour disputes, domestic abuse or escalating harassment.

5. Separate observations. Lady Hale considered that a dossier or nominal record collecting information about a peaceful protester would require particular justification because of its potential chilling effect, but no such record remained. Lord Toulson dissented in Mr Catt's case. He considered that the police had not shown sufficient continuing value in retaining historic records of his peaceful attendance at demonstrations.

1. United Kingdom Supreme Court: In [2015] UKSC 9, allowed both police appeals, set aside the Court of Appeal's orders and dismissed both judicial review claims.
2. Court of Appeal: In [2013] EWCA Civ 192, reported at [2013] 1 WLR 3305, heard the two cases together and allowed both claimants' appeals.
3. High Court: The Divisional Court dismissed Mr Catt's claim. Eady J dismissed Ms T's claim in [2012] EWHC 1115 (Admin), [2012] 1 WLR 2978.