07-08-2013

Unlawful police retention of data

R (on the application of Catt) v Association of Chief Police Officers and another; R (on the application of T) v Metropolitan Police Commissioner [2013] EWCA Civ 192

 

This case concerns information gathered and stored by the police and potentially disclosable as part of the CRB/DBS checks regime.

The first case, concerning C, who had attended many group public demonstrations, including one against a known weapons manufacturer. Some of the members of that group had been violent in some demonstrations but C had never been involved in any such criminal behaviour. Nevertheless information was held and stored on a database, the National Domestic Extremism database which was established and used by the Association of Chief Polce Officers. The database has no statutory foundation but was formed out of the general common law powers of the police to gather and manage information and make the same available to assist in their dissemination of intelligence. The database can be accessed by other forces to assist in the prevention of crime and the maintenance of public order.

 

The information concerning C that had been gathered related to his name,  age, appearance and his history of attending demonstrations. What is also key here is the fact that it was the intention of the police to store the information either until the group ceased to function or indefinitely. C therefore sought an order for judicial review and an order that all information relating to him be removed from the database as it represented an breach of his right to privacy under Article 8 ECHR and Sch 1 of the Human Rights Act 1998. His application was refused and he appealed.

The court held that in relation to the collection and retention of personal data by public authorities a factor of particular importance was whether the data had been subjected to systematic processing and entry on a database capable of being searched in a way that enabled the authorities to recover information by reference to a particular person. The information about C held on the database was information falling within the scope of his personal autonomy over which he was entitled to retain control. It did not follow from the fact that the public could expect the police to gather and process intelligence relating to violent protest movements that C's art 8 rights were not engaged. C was not thought to have been engaged in criminality of any kind and the records of his attendance at demonstrations were to be retained indefinitely. Accordingly, although he was not the specific object of any of the reports, the inclusion of personal information relating to C on the database had involved an interference with his right to respect for private life which required justification. The information held on C was of a very limited nature merely the fact of his attendance at protests; nothing suggested that that he had done anything beyond lend his general support by his presence. The information appeared unlikely to provide any assistance in relation to intelligence gathering. Accordingly, the respondent had not shown that the value of the information was sufficient in order to justify its continued retention. The interference with C's art 8 rights was therefore not proportionate. C's appeal would be allowed.

 

The case was heard at the same time as the case of T. The facts in that case were that T had been served with a 'Prevention of Harassment Letter' by the police after an allegation made by a neighbour of a single incident of insulting behaviour. The police had attempted to visit T the day after the alleged incident but had been unable to speak to her. They had therefore decided to serve her with the letter and tried without success to do so on a number of subsequent visits.  The Crime Recording Information System (CRIS) recorded the fact that a decision had been taken to serve T with a warning letter and the steps taken to do so. The police policy was to retain police information letters and CRIS reports relating to single allegations of conduct of a kind, which if repeated, could constitute harassment, for a period of 12 years. T considered that she had been treated unfairly by being given no opportunity to respond to the allegation. She went on to apply for judicial review and sought an order that the police destroy their copy of the letter and remove from CRIS all references to the letter and the decision to issue it. Her application was unsuccessful. The judge found that the interference with her art 8 rights was justified under art 8(2) as being in accordance with the law and necessary in the interests of public safety for the prevention of or crime or for the protection of the rights and freedoms of others.

 

On appeal, however, the court took a different view. They found that the information was of itself of the personal kind. Any systematic processing and retention of it therefore had to be justified or otherwise it represents an interference with right to privacy. Even if the information was considered initially as public in nature, it was also likely over the course of time to be forgotten about, especially if never repeated and as such would become a private matter. The failure of the police to speak to T before serving her with the warning letter did not render the whole procedure disproportionate, but the retention of the letter or the CRIS report for more than a matter of months needed to be justified by evidence. The commissioner of police had concluded for the purposes of the instant appeal that, some two-and-a-half years after the event, he was content for the record to be expunged on the grounds that there had been no ongoing concerns regarding risk and no reports of any further incidents. It was therefore clear that the continued retention of the information would have been unnecessary, disproportionate and unjustifiable and the appeal was successful