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

The Supreme Court held that the systematic collection and retention by the police of personal data can engage article 8 of the European Convention on Human Rights where information is stored in an organised and retrievable form. The court found that the relevant domestic framework — notably the Data Protection Act 1998 together with the statutory Code of Practice under the Police Act 1996 and the Management of Police Information guidance (MOPI) — supplied sufficiently clear and enforceable rules such that retention was "in accordance with the law" for article 8(2) purposes.

Applying the proportionality test under article 8(2), the court considered the two appellants separately. In Catt the retention of records recording attendance at demonstrations (kept in reports and in nominal records of others) was justified as proportionate to legitimate policing objectives (prevention and detection of crime, public order and analysis of extremist campaigns), taking account of review procedures and restrictions on disclosure. In T the court criticised the metropolitan practice of retaining a standard copy of a Prevention of Harassment Letter and the corresponding CRIS entry for very long fixed periods, but concluded that the particular material had in fact been deleted after a relatively short period (about two and a half years) and that retention for that shorter period was not disproportionate.

Background and parties:

• These were two judicial-review applications contesting police retention of personal information on searchable police databases. In Catt the applicant objected to retention of records of his attendance at political demonstrations associated with a campaign group (Smash EDO). In T the applicant objected to retention of a copy of a "Prevention of Harassment" letter and the related CRIS entry arising from a minor neighbour dispute.
• Both claims failed at first instance. The Court of Appeal allowed both appeals ([2013] 1 WLR 3305 / [2013] EWCA Civ 192). The Commissioner of Police appealed to the Supreme Court.

Nature of the claim / relief sought:

• Both applicants alleged that retention of the information by the police interfered with their rights under article 8 of the European Convention on Human Rights and was therefore unlawful. Relief sought was, broadly, deletion and declarations/mandatory relief in respect of retention.

Issues framed by the court:

1. Whether article 8(1) was engaged by the systematic retention of the relevant information;
2. If article 8 was engaged, whether the retention was "in accordance with the law" for the purposes of article 8(2); and
3. Whether retention was a proportionate interference with the applicants' article 8 rights.

Legal framework and reasoning:

• The court treated the Data Protection Act 1998 (including Schedule 1 data protection principles), the statutory Code of Practice under the Police Act 1996 and the MOPI/Authorised Professional Practice guidance as the domestic legal framework governing police information retention. Those instruments, together with enforcement remedies (Information Commissioner, courts), provided the safeguards required to satisfy the "in accordance with law" requirement of article 8(2).
• On proportionality the court applied Strasbourg authorities recognising that public information may be within private life if systematically collected and stored. The court assessed the nature of the material, its sensitivity, the purposes for retention, review and deletion procedures, limits on disclosure and the practicalities of police intelligence gathering.
• In Catt the court concluded that retention of incidental references to a longstanding peaceful protester in reports and in nominal records of others was proportionate because the material related to public acts recorded overtly, was not intimate or sensitive, was retained for legitimate policing purposes (risk assessment, investigation, analysis of extremist groups), and was subject to review and limits on disclosure. The claim was dismissed.
• In T the court found the Metropolitan Police form of Prevention of Harassment Letter and the existence of long standard retention periods (seven and twelve years) to be regrettable; but as the relevant data had been deleted after approximately two and a half years and the police policy was not inflexible, the retention as it actually occurred was not disproportionate. The claim was dismissed.

Wider context:

• The court emphasised the need to balance the risks of arbitrary state retention against legitimate policing requirements for collating and analysing intelligence to prevent disorder and crime, and noted that review and deletion safeguards are crucial.

Appeal allowed. The Supreme Court held that article 8 was engaged by systematic retention but that the domestic legal framework (Data Protection Act 1998, the Police Act 1996 Code of Practice and MOPI guidance), together with supervisory remedies, meant retention was "in accordance with law". Applying proportionality, retention of the material concerning Catt (incidental references in reports and other nominal records) was justified for legitimate policing purposes and the claim was dismissed. In T the Metropolitan Police's standard long retention periods were criticised, but because the material was deleted after about two and a half years and the policy operated with flexibility, retention as it in fact occurred was not disproportionate and the claim was dismissed.

Both applications failed at first instance (dismissed by the courts below; see Eady J in T [2012] EWHC 1115 (Admin) (referred to in the judgment)). The Court of Appeal allowed both appeals ([2013] 1 WLR 3305; [2013] EWCA Civ 192). The Commissioner of Police appealed to the Supreme Court and the appeals were allowed by the Supreme Court ([2015] UKSC 9).