Retention of information on police databases justifiable

The Supreme Court so held (Lord Toulson dissenting in part) in allowing appeals by the defendants, the Association of Chief Police Officers of England, Wales and Northern Ireland and the Commissioner of Police of the Metropolis, against the decisions of the Court of Appeal (Lord Dyson, Master of the Rolls, Lord Justice Moore-Bick and Lord Justice McCombe) ([2013] 1 WLR 3305) which had allowed appeals in judicial review proceedings:

(i) By the claimant, John Oldroyd Catt, from the decision of the Queen’s Bench Divisional Court (Lord Justice Gross and Mr Justice Irwin) ([2012] EWHC 1471 (Admin)) refusing to make a declaration that references to him on a national domestic extremism database breached his article 8 rights and should be deleted.

(ii) By the claimant, T, from the decision of Mr Justice Eady in the Administrative Court ([2012] 1 WLR 2978) refusing her claim, inter alia, that the retention of a prevention of harassment warning letter to her breached her article 8 rights. Mr Jeremy Johnson , QC and Ms Georgina Wolfe for the defendants in both appeals; Mr Tim Owen, QC, Ms Alison Macdonald and Mr Raj Desai for Mr Catt; Mr Paul Bowen, QC, Ms Ruth Brander and Ms Zarah Al-Rikabi for T; Mr Alex Bailin, QC and Mr Dan Squires for the Equality and Human Rights Commission, intervening in the Catt case; Mr Jason Coppel, QC and Mr Robin Hopkins for the Secretary of State for the Home Department, intervening in both cases. The Network for Police Monitoring intervened in the Catt case by written submissions.

LORD SUMPTION, with whom Lord Neuberger agreed, said that the state’s systematic collection and storage in retrievable form even of public information about an individual engaged article 8.1, and thus article 8.2 required that its retention be “in accordance with law” and proportionate to its objective.

The retention of data in police information systems in the United Kingdom, being subject to the Data Protection Act 1998 and to published codes of practice issued pursuant to section 39A of the Police Act 1996 (as inserted by section 2 of the Police Reform Act 2002), was in accordance with law.

The real question was whether the interference with the claimants’ article 8 rights was proportionate to the objective of maintaining public order and preventing or detecting crime.

Mr Catt was a regular attender at public demonstrations, at some of which there was crime and disorder, although he himself practised peaceful protest. His presence at such events was regularly recorded and stored, along with the names of other participants. In most cases all that was recorded was his presence, date of birth and address. In some cases his appearance was also described.

The composition, organisation and leadership of protest groups who were persistently associated with violence and criminality at public demonstrations was a matter of proper interest to the police even if some of the individuals in question were not themselves involved in any criminality.

The longer-term consequences of restricting the availability of that resource to the police would potentially be serious. It would adversely affect police operations directed against far less benign spirits than Mr Catt.

The retention of data about his participation in demonstrations was therefore justified by the legitimate requirements of police intelligence-gathering in the interests of the maintenance of public order and the prevention of crime.

In the second case, a Mr S had complained that Ms T had called him a “faggot”, which he associated with insulting remarks she had allegedly made to him on earlier occasions, which he had interpreted as homophobic.

A Crime Reporting Information System record was completed by the police, recording the facts as alleged by Mr S, and Ms T was served with a “prevention of harassment letter”.

The Metropolitan Police retained a copy of such letters on their electronic records for at least seven years, and the corresponding Crime Reporting Information System record for 12 years. In his Lordship’s opinion, that was significantly longer than anything which could be justified for police purposes.

Nonetheless, Ms T’s article 8 rights had not been violated because the material had in fact been retained for only two and a half years before the decision to delete it was made.

LORD TOULSON dissented in the result in the Catt case but allowed the appeal in Ms T’s case on the ground that the standard practice of retaining material relating to potential harass- ment cases for seven or 12 years was proportionate, provided that it was flexible enough to allow for deletion when the information was no longer required.

Since the material relating to Ms T had been deleted when it was no longer required, the Court of Appeal had erred in finding its retention to have been a disproportionate interference with her right to private life.

Lady Hale and Lord Mance delivered judgments agreeing with Lord Sumption in the Catt case and Lord Toulson in Ms T’s case.

Solicitors: Director of Legal Services, Metropolitan Police; Bhatt Murphy; Bindmans LLP; Solicitor, Equality and Human Rights Commission; Treasury Solicitor.