The police and the retention of personal data
Posted on 9th March 2015
On 4 March 2015 the Supreme Court handed down judgment in two linked appeals concerning the police’s retention of personal data in the case of R (Catt) v Commissioner of Police of the Metropolis and R(T) v Commissioner of Police of the Metropolis  UKSC 9. The appeal, brought by the Metropolitan Police, overturned Court of Appeal decisions that retention of personal data by the police in Mr Catt’s and Mrs T’s cases had been a disproportionate interference with their rights to a private and family life under Article 8 of the European Convention of Human Rights (ECHR).
The issue with Mr Catt was of the systematic collection and storage of details of his attendances at various political demonstrations dating back to 2005 on the National Special Branch Intelligence System, or ‘Domestic Extremism Database’. Some of the entries referred to demonstrations organised by the campaign group ‘Smash EDO’, but included reference to his attendance at protests at the Labour Party conference and the TUC conference. He is a 91 year old man with no previous convictions who has been involved in the peace movement since 1948.
It was accepted by the Court that retention of this data did in fact engage his Article 8 rights. Such rights can only be interfered with ‘in accordance with the law’ and where ‘necessary in a democratic society’; in this context for the ‘prevention of disorder or crime’. The argument arose in this case on whether police practices on retention of such data was a proportionate interference with his Article 8 rights. By a majority of four to one, with Lord Toulson dissenting, the Supreme Court found that retention of this information was indeed a proportionate interference and therefore lawful.
The statutory framework for the use of personal data comes from the Data Protection Act 1998, and in a policing context governed by the Home Secretary’s 2005 ‘Code of Practice on Management of Police Information’ which limits handling of ‘police information’ for ‘police purposes’. Information originally recorded must be reviewed and its usefulness assessed and considered for deletion where no longer of use.
It might be wondered in this case to what ‘police purpose’ does the fact of Mr Catt’s attendance since 2005 at political demonstrations assist with which justifies long term retention? Detective Chief Superintendent Tudway, formerly National Coordinator for Domestic Extremism justified retention on the details of attendees at demonstrations (such as Mr Catt) for the following reasons:
1. In order to enable the police to make a more informed assessment of the risks and threats to public order and police resources which may be necessary in future;
2. In order to investigate criminal offences and identify witnesses and victims;
3. In order to study the leadership, organisation, tactics and methods of violent protest groups and the links between them.
Lord Sumption, in the lead judgment of the Court, stated that even in cases such as Mr Catt’s, the fact that he himself was not likely to commit offences did not make the information retained irrelevant for policing purposes; the composition and organisation of protest groups was a proper matter for police interest. Furthermore he added, the labour involved to exclude people such as Mr Catt from the database would be disproportionate to the value of doing so.
In the dissenting judgment Lord Toulson questioned the intelligence value of the information held on Mr Catt and also stated that the police under the existing framework were bound to carry out reviews of information retained and delete that which is no longer of use.
There can be little argument that the retention of personal data on those linked with organised crime, terrorism or football hooliganism is a justifiable interference on rights to a private and family life for proper policing purposes. In this case, as Lord Toulson stated, the value of such information continuing to be held for a 91 year old man of good character was extremely doubtful. Its use in combatting crime must be dubious by any analysis. Mr Catt indicated after the ruling that effectively it was his lawful political activities that were in effect being monitored. He has indicated his intentions to pursue the matter to the European Court of Human Rights.
A further issue here is the proper allocation of limited police resources. Lord Sumption suggested that having to weed out information on people such as John Catt from the database would be disproportionate. Yet considerable police time has been devoted to adding to, reviewing and maintaining these entries. In the wake of recent scandals involving the expensive and intrusive use of undercover police officers in protest groups, here is a further example of considerable policing infrastructure being used to monitor non-violent people of good character.
Finally, the view that the interference with Mr Catt’s private life is “minor” and that there is no stigma attached to it appears to neglect the potential deterrent effect of a policy of this nature. If it is accepted that mere participation in certain types of protest, without any evidence of criminal conduct, is sufficient to warrant a detailed record of the person’s activities being retained by the police, this will almost inevitably lead individuals to think twice about their involvement. And whether or not stigma is attached now to this type of political activity, it would be naïve to think that this situation could change under a future government – particularly with the threat of withdrawal from the ECHR and its protection of the right to freedom of assembly.