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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> CATT and T, R (on the applications of) v Commissioner of Police of the Metropolis [2015] UKSC 9 (4 March 2015) URL: https://www.bailii.org/uk/cases/UKSC/2015/9.html Cite as: [2015] WLR(D) 110, [2015] 2 WLR 664, [2015] UKSC 9, [2015] 1 AC 1065, [2015] HRLR 4, [2015] 2 All ER 727, [2015] AC 1065 |
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Hilary Term
[2015] UKSC 9
On appeal from: [2013] EWCA Civ 192
R (on the application of Catt) (AP) (Respondent) v Commissioner of Police of the Metropolis and another (Appellants)
R (on the application of T) (AP) (Respondent) v Commissioner of Police of the Metropolis (Appellant)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Sumption
Lord Toulson
JUDGMENT GIVEN ON
Heard on 2, 3 and 4 December 2014
Appellants Jeremy Johnson QC Georgina Wolfe (Instructed by Metropolitan Police Directorate of Legal Services) |
Respondent (1) Catt Tim Owen QC Raj Desai Alison Macdonald (Instructed by Bhatt Murphy Solicitors) |
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Respondent (2) T Paul Bowen QC Ruth Brander Zarah Al-Rikabi (Instructed by Bindmans LLP) |
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Intervener (EHRC) Alex Bailin QC Dan Squires (Instructed by Equality & Human Rights Commission) |
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Intervener (SSHD) Jason Coppel QC Robin Hopkins (Instructed by Treasury Solicitors) |
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Intervener (The Network for Police Monitoring) Nathalie Lieven QC Jude Bunting (Instructed by Leigh Day & Co (written submissions only)) |
LORD SUMPTION: (with whom Lord Neuberger agrees)
Introduction
Is article 8 engaged?
"As the court has had previous occasion to remark, the concept of 'private life' is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person …. It can sometimes embrace aspects of an individual's physical and social identity …. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by article 8 …. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world …. Though no previous case has established as such any right to self-determination as being contained in article 8 of the Convention, the court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees."
"There are a number of elements relevant to a consideration of whether a person's private life is concerned by measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor. A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example, a security guard viewing through closed-circuit television) is of a similar character. Private-life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain. It is for this reason that files gathered by security services on a particular individual fall within the scope of article 8, even where the information has not been gathered by any intrusive or covert method."
In Bouchacourt v France, 17 December 2009, Application No 5335/06, BAILII: [2009] ECHR 2276 , a case concerning the inclusion of persons in a register of convicted sex offenders, it was held at para 57 that the "mere storing by a public authority of data relating to the private life of an individual" engaged article 8 of the Convention so as to require to be justified. In S v United Kingdom (2009) 48 EHRR 50 the Strasbourg court held that article 8 was engaged by the mere storage of cellular samples, DNA profiles and fingerprints: see paras 77, 86. This was because of the sensitivity and amount of the personal information in question, and the uses to which it might "conceivably" be put: paras 70-86. The same principle has been recognised and applied in English case law. As Lord Hope of Craighead DPSC observed in R (L) v Comr of Police of the Metropolis (Secretary of State for the Home Department intervening) [2010] 1 AC 410, para 27, even public information such as a criminal conviction may become part of a person's private life once it recedes into the past and other people are likely to have forgotten about it.
The domestic legal framework
(1) Subject to exceptions of no present relevance, a data controller is required by section 4(4) to comply with the "data protection principles" in Schedule 1. So far as they are relevant to the present appeals, the data protection principles are as follows:
Principle 1 is that personal data may not be "processed" at all unless it is necessary for a relevant purpose. In the case of the police, the relevant purposes are the administration of justice and the exercise of any other function of a public nature exercised in the public interest.
Principle 2 is that personal data may be obtained only for lawful purposes and may not be further "processed" in a manner incompatible with those purposes.
Principle 3 is that the data must be "adequate, relevant and not excessive" for the relevant purpose.
Principle 5 is that the data may not be kept for longer than is necessary for those purposes.
Principle 7 is that proper and proportionate measures must be taken against the unauthorised or unlawful "processing" of the data.
(2) There is a statutory right in any "data subject" on request to be given access to any personal data concerning him: section 7. This is subject to an exception under section 29 for personal data "processed" for the purpose of (among other things) preventing or detecting crime or apprehending or prosecuting offenders. The effect of the exception is to protect information relating to current police investigations or operations.
(3) There is a statutory right in a data subject to require a data controller not to "process" personal data, on the ground that it is causing or is likely to cause unwarranted and substantial damage or substantial distress to him or to someone else: section 10(1). This right would not apply to processing which is necessary for the administration of justice or for the exercise of other public functions in the public interest. But it would apply in any case where that limitation has been exceeded: section 10(2) and Schedule 2, para 5.
(4) Complaints about breach of a data controller's obligations may be pursued in the courts or by way of complaint to the regulator, the Information Commissioner: sections 13 and 14. The relief available includes damages.
"Reviewing information held by forces to determine its adequacy and continuing necessity for a policing purpose is a reliable means of meeting the requirements of the Data Protection Act. Review procedures should be practical, risk focused and able to identify information which is valuable to the policing purpose and needs to be retained. Review procedures should not be overly complex but should be as straightforward as is operationally possible."
Paragraph 7.4 provides:
"All records which are accurate, adequate, up to date and necessary for policing purposes will be held for a minimum of six years from the date of creation. This six-year minimum helps to ensure that forces have sufficient information to identify offending patterns over time, and helps guard against individuals' efforts to avoid detection for lengthy periods.
Beyond the six-year period, there is a requirement to review whether it is still necessary to keep the record for a policing purpose. The review process specifies that forces may retain records only for as long as they are necessary."
Paragraph 7.3.1 provides that the object of the review is to ensure that there is a continuing policing purpose for holding the record, that the record is adequate, up to date and not excessive, that the Data Protection Act is complied with, and that the assessment of the level of risk that the person presents is correct. A number of detailed criteria for carrying out this exercise are then set out. Records are required to be subjected to an initial evaluation, and then kept for a minimum of six years. Thereafter, they are subject to: (i) "triggered reviews", when information is added about the person in question or a statutory demand for access or disclosure is received or a request for information is made by another law enforcement agency; and (ii) "scheduled reviews", which occur automatically at intervals varying with the nature of the information and the gravity of the risk: paragraphs 7.6.2 and 7.6.3. The criteria for retention or deletion are directed to the risk of harm to the public or to vulnerable sections of the public. Only in the case of persons convicted or suspected of involvement in offences involving the highest level of danger to the public are records to be retained indefinitely. Information which is no longer required must be irretrievably deleted. Substantially similar provisions appear in the current Guidance of 2013.
In accordance with the law
"The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality."
In the context of the retention by the police of cellular samples, DNA profiles and fingerprints, the Grand Chamber observed in S v United Kingdom (2009) 48 EHRR 50, para 99, that there must be
"clear, detailed rules governing the scope and application of measures, as well as minimum safeguards concerning, inter alia, duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for its destruction, thus providing sufficient guarantees against the risk of abuse and arbitrariness."
For this purpose, the rules need not be statutory, provided that they operate within a framework of law and that there are effective means of enforcing them. Their application, including the manner in which any discretion will be exercised, should be reasonably predictable, if necessary with the assistance of expert advice. But except perhaps in the simplest cases, this does not mean that the law has to codify the answers to every possible issue which may arise. It is enough that it lays down principles which are capable of being predictably applied to any situation.
"not satisfied that there were, and are, sufficient safeguards in the system for retention and disclosure of criminal record data to ensure that data relating to the applicant's private life have not been, and will not be, disclosed in violation of her right to respect for her private life. The retention and disclosure of the applicant's caution data accordingly cannot be regarded as being in accordance with the law."
Proportionality: Mr Catt
(1) It is retained in order to enable the police to make a more informed assessment of the risks and the threats to public order associated with demonstrations forming part of an identifiable campaign, and the scale and nature of the police response which may be necessary in future.
(2) It is retained in order to investigate criminal offences where there have been any, and to identify potential witnesses and victims.
(3) It is retained in order to study the leadership, organisation, tactics and methods of protest groups which have been persistently associated with violence, and other protest groups associated with them. Links between protest groups are potentially important. There is a significant correlation between participation in a group such as Smash EDO and other extremist groups such as animal rights activists. The evidence is that out of 242 Smash EDO activists recorded in the database at the time when these proceedings were begun, 42 also had links with animal rights protest groups. There is considerable cross-fertilisation of ideas between different extremist causes on tactics and methods.
Proportionality: T
"An allegation of harassment has been made against you:
Details of alleged conduct (specific actions that are cause for complaint):
On the 20/07/2010 you went outside Flat 5 and told a visitor who was making a phone call 'YOU FAGGOT'
'HARASSMENT IS A CRIMINAL OFFENCE under the Protection from Harassment Act 1997.'
'A person must not pursue a course of conduct which amounts to harassment of another and which he/she knows, or ought to know, amounts to harassment of the other.'
Harassment can take many forms and examples can include: wilful damage to property, assault, unwarranted verbal or physical threats, abusive communication or repeated attempts to talk to or approach a person who is opposed to this.
It is important that you understand that should you commit any act or acts either directly or indirectly that amount to harassment, you may be liable to arrest and prosecution. A copy of this letter which has been served on you will be retained by police but will not be disclosed now to the alleged victim. However a copy could be disclosed in any subsequent criminal proceedings against you as proof that police have spoken to you about this allegation.
This does not in any way constitute a criminal record and will only be referred to should further allegations of harassment be received."
LADY HALE:
"103. … The domestic law should notably ensure that such data are relevant and not excessive in relation to the purposes for which they are stored, and preserved in a form which permits the identification of the data subjects for no longer than is required for the purpose for which those data are stored. The domestic law must also afford adequate guarantees that retained personal data was [sic] efficiently protected from misuse and abuse …"
LORD MANCE:
LORD TOULSON:
Mr Catt
Ms T
"The respondent's decision to retain the Warning Notice on file for a minimum period of seven years, and to retain details of the underlying allegation for a minimum of 12 years, was unlawful and in breach of the appellant's right to respect for her private life, contrary to section 6 of, and article 8 of Schedule 1 to, theHuman Rights Act 1998."