B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE DYSON
and
LORD COLLINS
OF
MAPESBURY
____________________
Between:
|
Wood
|
Appellant
|
|
- and -
|
|
|
Commissioner of Police for the Metropolis
|
Respondent
|
____________________
(Transcript
of the
Handed Down Judgment
of
WordWave International Limited
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Court)
____________________
Mr Martin Westgate (instructed
by
Liberty) for
the
Appellant
Mr Sam Grodzinski (instructed
by The
Metropolitan
Police
Service) for
the
Respondent
Hearing dates : 28 & 29 January 2009
____________________
HTML VERSION
OF
JUDGMENT
____________________
Crown Copyright ©
LORD JUSTICE LAWS:
INTRODUCTION
- This is
an
appeal against
the
judgment
of
McCombe J ([2008] EWHC Admin 1105) given in
the
Administrative Court on 22 May 2008
by
which he dismissed
the
appellant's application for judicial review.
The
appellant's complaint was and is that officers
of the
respondent Commissioner's
police
force had
taken
and retained
photographs of
him in central London in
the
context
of
a meeting on 27 April 2005 in Grosvenor Square, and that these actions were unlawful and in violation
of
his rights guaranteed
by
Articles 8, 10, 11 and 14
of the
European Convention on Human Rights (ECHR). Permission to appeal was granted
by the
learned judge below.
THE
FACTS
The
Judge's Account
The
following account,
taken
from
the
judge's judgment, gives
the
primary facts. After setting it out I must address certain further matters which are
of
some importance.
"3. At
the
relevant time
the
Claimant was a media co-ordinator employed
by an
unincorporated association known as Campaign against Arms Trade ('CAAT'). CAAT's name clearly indicates its objects.
The
Claimant had and has no criminal convictions and has never been arrested as a result
of
any campaigning activities or otherwise.
4. Reed Elsevier PLC ('Reed') was
the
parent company
of
Spearhead Exhibitions Limited ('Spearhead') which is concerned in
the
organisation
of
trade fairs for various industries, including
the
arms industry. One
of the
events with which it has been concerned is
an
exhibition held every other year in London called Defence Systems and Equipment International ('DSEi'). Because
of the
association with Spearhead, Reed's offices in this country had been subjected to demonstrations, some involving criminal damage. Other damage had been caused to Reed's premises in
the
Netherlands.
5. Prior to Reed's Annual General Meeting on 27 April 2005 (due to take place at
an
hotel in Grosvenor Square in London)
the police
were contacted
by
a member
of
Spearhead staff explaining that
the
company had recently noted
the
purchase
of
single shares entitling
the
new holders to attend
the
forthcoming AGM. Some five or six share transactions were said to
have
involved members
of
CAAT. One individual known to hold a proxy for a shareholder was a woman, called in this case 'EA', a member
of
CAAT until 2003,
who
had a history
of
unlawful activity against organisations involved in
the
defence industry and had been convicted
of
a number
of offences
in that context.
6.
The
Defendant took
the
view that there was a real possibility
of
demonstration at
the
AGM and that unlawful activity might occur. He (or his senior officers) therefore decided to deploy a number
of
officers around
the
hotel where
the
meeting was to be held. One inspector, three sergeants and 21 constables were so allocated. In addition, two 'Forward Intelligence Teams' ('FITs')
of
three and two officers respectively and
an
'Evidence Gathering ('EG') Team'
of
three officers and a civilian photographer were engaged. These officers were in uniform and
the
photographer, although a civilian, wore a uniform identifying him as engaged with
the police
.
7.
The
EG team gathers intelligence
by
taking
photographs
and making notes
of
significant events which may be thought to be
of
potential evidential value;
the
FIT teams are used to monitor people's movements at events
of the
kind in question to assist in
the
efficient deployment
of
resources.
8. Before
the
meeting a CAAT member ('KB') approached
the
officer in charge and asked to hand out leaflets at
the
hotel entrance to those attending
the
AGM.
The
officer agreed to this on
the
understanding that no obstruction would be caused and KB would be acting alone. KB did carry on her leafleting activity without problems arising.
9.
The
Claimant attended
the
AGM having previously bought a share in Reed. He attended with about six other CAAT members, but entered
the
meeting with only one other. He states that his purpose was to learn more about Reed's involvement with Spearhead and to ask appropriate questions.
10. At
the
meeting two people, EA (already mentioned) and one RH, were ejected
by
private security staff, apparently after chanting slogans. There is no suggestion that
the
Claimant was in any way involved in this activity. His participation appears to
have
been confined to asking one unobjectionable question. There appears to
have
been no other disturbance at
the
meeting.
11.
The
Claimant left
the
meeting as soon as formal business was over, without staying for
the
social reception held thereafter for which other shareholders did stay. He left
the
hotel in
the
company
of
another CAAT employee, a Mr. Ian Prichard. They spoke to KB and, while they were doing so, a man (whom
the
Claimant believed to be a
police
officer, but
who
was in fact
the
civilian photographer already mentioned) got out
of
a
police
vehicle and began to take
photographs
. There is a dispute as to how many
photographs
were
taken
but
the
Claimant's evidence is that
the
photographer was working continuously for some time and approached to within two metres
of the
Claimant and Mr. Prichard.
The
photographer says that he customarily tries to keep a safe distance from subjects in order
not
to invade their 'personal space' and for his own safety and
the
safety
of
his equipment. In evidence, seven images
have
been produced
of
which only two show
the
Claimant clearly.
12.
The
Claimant complains that he was
not
told
the
reason why
the photographs
were being
taken
. On
the
other hand, it appears that he did
not
ask
the
officers for
the
reason either.
13.
The
Defendant's evidence is that, after eviction from
the
meeting, EA joined KB outside
the
hotel. It is stated that
the
Claimant and Mr. Prichard stopped to speak to KB (as they accept) and that they were joined
by
EA.
The
Claimant says that he cannot recall EA joining
the
group. In his evidence, a sergeant from
the
EG team states that he decided that it was appropriate to
photograph the
Claimant and to try to establish his identity. His reasons for doing so were
the
sighting
of the
Claimant in a group with EA and
the
possibility that unlawful activity in
the
meeting, from which EA had been ejected, might later come to light. Other officers also give evidence
of
having seen
the
Claimant with EA at this time.
14.
The
Claimant and Mr. Prichard walked away from
the
hotel towards
an
Underground railway station. They were followed
by
officers from
the
EG team.
The
Claimant says that a
police
vehicle pulled up near to him and Mr. Prichard and about four officers came and stood near to them.
The
Claimant was asked for his identity, as was Mr. Prichard. Mr. Prichard identified himself, but
the
Claimant asked whether he was obliged to do so and, on being told he was
not
, declined to answer. They both refused to answer questions about
the
AGM. They were told that they were free to leave
the
scene and that they were
not
being detained, although two officers then followed them to
the
station, trying at one stage to get
the
assistance
of
railway staff to obtain
the
Claimant's identity from
the
Claimant's travel document.
The
Defendant's evidence is that
the
two men were followed in order to see whether they were truly leaving
the
area or whether they might return to
the
venue
of the
AGM or become involved with a different demonstration which was thought
by the police
to be occurring in St. James's Square. There is no evidence to suggest that
the
exchanges between
the police
on
the
one hand and
the
Claimant and Mr. Prichard on
the
other hand were other than polite on each side.
15.
The
Defendant has adduced detailed evidence as to
retention of photographs taken
in such circumstances as these. It appears that they are retained subject to strict controls. Usually they are kept only for use
by
officers
of the
Public Order branch
of the
force. Copies are
not
permitted to be
taken
outside
the
offices
of
that branch.
The
one exception to this is that at future public events where there is a potential need to identify
persons
involved in unlawful activity,
who
may
have
participated in similar events previously, a sheet
of
relevant images may be given to a limited number
of
EG and/or FIT team members. However,
the
images do
not
identify
the
names
of
those depicted, each image merely being allocated a code.
The
sheets are returned after
the
event and are then destroyed.
16. It seems that, in this case,
the police
did subsequently find out
the
Claimant's identity. They apparently found from company records
the
names
of the
new shareholders in Reed. They were able to ascertain
the
identities
of
all others, apart from
the
Claimant, and
by
process
of
elimination worked out that
the person
photographed in
the
company
of
Mr. Prichard and others was
the
Claimant.
17.
The
perceived need for
photographs
generally in
the
present case appears to
have
been because
of police
fears
of
unlawful activity at
the
DSEi event to be held in September 2005, after
the
disturbances at Reed's premises in this country and in
the
Netherlands, and
the
association on this occasion
of the
Claimant and others with EA
who
had previous convictions for unlawful activities in related manifestations.
The
Defendant says that, but for
the
proceedings in this court,
the
retained
photographs of the
Claimant would
have
been destroyed shortly after
the
September 2005 event. It is said that such
photographs
are
not
accessible for general intelligence purposes but are used only if a civil claim is made against
the police
in relation to
the
recorded events or if a specific
offence
has come to light and it is believed that
the
images may provide material evidence in relation to that
offence
.
18.
The
Claimant says that he felt scared and intimidated
by the
events in issue. He also says that
the
incident was 'extremely upsetting' and that he 'felt shaken and frightened as a result'. He says that he feels very uncomfortable that information may be kept about him indefinitely and may be used without his consent or knowledge.
The
Defendant, through Counsel, accepts that
the
Claimant may
have
felt 'unsettled'
by
what occurred. However,
the
Claimant relies on his unchallenged evidence to
the
effect that I
have
just outlined, asserting that
the
incident was more than just 'unsettling' so far as he was concerned."
Minor Matters
- There are next two minor issues with which I can deal shortly. First,
the
dispute as to how many
photographs
were
taken
(paragraph 11 in
the
judge's account) merely reflects
the
unsurprising contrast between
the
appellant's perception that he was being photographed continuously (paragraph 9
of
his first statement, 30 October 2005) and
the
fact that in
the
result there were only two clear "front-on" images
of
him (statement
of the police
photographer Neal Williams, 23 November 2006, paragraph 6). Secondly
the
question whether there was any association outside
the
hotel between
the
appellant and
the
woman EA (
the
judge's paragraph 13) is again a matter
of
perception: it is plain that officers believed there was some association, whether in fact there was or
not
.
What Did
the Police
Hope to Gain?
- I stated (paragraph 2) that there were certain further matters
of
some importance.
The
first is to consider what
the police
hoped to gain from
the
exercise. On this we
have
in particular
the
statements
of the
officer in charge, CI Claire Weaver (27 November 2006), and
of
one
of the
evidence gatherers, Sgt David Dixon (24 November 2006). Taking them together it is clear that
the
pictures were
taken
(1) so that if disorder erupted and
offences
were
committed
(or it transpired that
offences
had already been
committed
inside
the
hotel), offenders could be identified, albeit at a later time if necessary; and (2) so that
persons who
might possibly commit public order
offences
at
the
DESi fair in September could be identified in advance: this would or might assist
the police
operation at
the
forthcoming event.
What Was Done with
the Photographs
?
The
second matter, about which for reasons that will appear I need to say rather more, is what was done with
the photographs
. Within
the
evidence that was before
the
judge there is first
the
statement
of the
photographer Mr Williams to which I
have
already referred.
The
pictures were initially recorded on a flash card in Mr Williams' digital camera. Copies
of the
original images were recorded onto three CD ROMs.
Of
these
the
master CD and a working copy were stored at
the
headquarters
of
what is called SCD4(3), which is
the
Forensic Science Branch
of the
Metropolitan
Police
. Mr Williams says (paragraph 13) that
the
images on these two CDs could only be read on SCD4(3) computers with
the
requisite software. Further copies in what is known as JPEG format were also stored at SCD4(3) headquarters. Copies in
the
same format were forwarded to CO11, which is
the
Public Order Branch.
The
JPEG images, as I understand it, could be viewed on any computer.
The
master CD, working copy, and JPEG copy were all securely stored at SCD4(3), but (Williams paragraph 16) no information is kept there which
of
itself would enable anyone to correlate any particular image with
an
identified individual. Rather a database keeps information about
the
assignment on which
the
pictures were
taken
,
the
date, basic details
of the
event,
the
name
of the
photographer, and
the
requesting or commissioning officer (in this case CI Weaver).
The
part played
by the
Public Order Branch, CO11, in these arrangements was described
by
Superintendent Gomm (statement, 28 November 2006),
who
works in CO11. He confirms (paragraph 12) that after
an
event where overt filming has been carried out
by the
Metropolitan
Police
,
the
photographer forwards a CD containing
the
images to CO11. They are securely stored and access to them is restricted, monitored and supervised.
An
image is only circulated to officers outside CO11 if there is a belief that its subject may attend some future event and commit
offences
(paragraph 14). In that case a numbered sheet
of photographs
is circulated to
the
relevant officers attending
the
event. Each officer is required to hand in his sheet for destruction at
the
end
of the
day.
- Images kept
by
CO11 are reviewed after about a year and only retained if they
have
any "ongoing significant intelligence value", something which is difficult to define precisely (paragraph 12). In
the
present case Superintendent Gomm says (paragraph 13) that but for
the
commencement
of
these proceedings
the
images
of the
appellant would
have
been destroyed after
the
DSEi exhibition in September 2005, which it appears he did
not
attend.
- That would likely
have
served as a sufficient account
of the
somewhat complex arrangements within
the
Metropolitan
Police
for
the retention
and use
of photographs taken
at
an
overt filming event, but for
the
receipt
by the
court, at a time when
the
preparation
of
this judgment was well under way,
of
further material from
the
parties.
An
exchange
of
correspondence between them was generated
by an
article in
the
Guardian newspaper published on 23 February 2009 headed "Britain faces summer
of
rage –
police
".
The
article was based in part on
an
interview with Superintendent Hartshorn, a senior officer within CO11.
The
appellant says that Superintendent Hartshorn revealed further significant information which assists his case. I directed that
the
parties file additional written submissions on
the
impact
of
this material
by
23 March 2009, and that has been done.
- It is submitted for
the
appellant that
the
new material shows as a matter
of
fact that there is a database
of
images, searchable
by
name, held within CO11; that
the
criteria for
the
inclusion
of
any
person
's image on this database are unclear; and that
the
sheets
of photographs
to which Superintendent Gomm referred (see paragraph 6 above) – described as "spotter cards" – are sometimes supplied to members
of
FIT teams where
the
subjects "could be... known activists. Known people
who
've caused us problems", and "a number
of
people we might be looking for".
The
respondent's substantive observations on
the
factual issues arising from Superintendent Hartshorn's interview are contained in a letter to Liberty
of
19 March 2009. Amongst other things it is stated that there is indeed a database
of
images held
by
CO11. In his further written submissions
of
23 March 2009 counsel for
the
respondent complains
of
comments in a further piece in
the
Guardian on 7 March 2009 (
the
main article on
the
front page) that Liberty did
not
know about
the
database and that "
police
do
not
appear to
have
disclosed to
the
court [sc. in these proceedings, which had
by
that date been reserved for judgment] that they were transferring
the
private details
of
campaigners to a database". In fact this database had been referred to at paragraph 27
of the
respondent's Summary Grounds for Resistance dated 9 December 2005; no further reference was made to it because, as is common ground,
the
appellant's image never appeared on it.
The
appellant, knowing what was in
the
respondent's Summary
of
Grounds, advanced no argument and pursued no enquiry relating to
the
CO11 database.
- As for
the
other points summarised in
the
appellant's further submissions,
the
letter
of
19 March 2009 states
the
criteria for inclusion on
the
database: observed or suspected participation in unlawful activity at
the
event when
the
pictures were
taken
, or participation
of
such activity at
an
earlier time. Mere presence at a demonstration or other event is
not
enough.
The
appellant's image was never placed on a "spotter card".
- I
have
thought it right to summarise this new material given
the
reliance placed on it
by the
appellant,
the
terms
of the
respondent's reply, and my own direction seeking
the
parties' further submissions. However for reasons I shall explain it does
not
, in my judgment, affect
the
outcome
of the
case and I would
not
grant any formal leave to admit it as new evidence.
The
Published Policy
- There is also before us, as it was before
the
judge, evidence
of
a published policy evolved
by the
Metropolitan
Police
on "
the
Use
of
Overt Filming/Photography". Under
the
heading "Policy Statement" it has this:
"
The
Metropolitan
Police
Service (MPS) is
committed
to providing MPS personnel with a particularly useful tactic to combat crime and gather intelligence and evidence relating to street crime, anti-social behaviour and public order.
It may be used to record identifiable details
of
subjects suspected
of
being involved in crime or anti-sociable [sic] behaviour such as facial features, visible distinctive marks e.g., tattoos, jewellery, clothing and associates for
the
purposes
of
preventing and detecting crime and to assist in
the
investigation for all alleged
offences
.
This tactic may also be used to record officers' actions in
the
following circumstances. Maintaining public confidence and to justify
police
tactics. During incidents where
police
face substantial levels
of
violence, immigration arrests, detention
of
mentally ill
persons
and actions
taken
during high profile or critical incidents.
To demonstrate to
the
public that cameras are deployed overtly officers should clearly identify themselves as
police
officers or
police
staff and
not
hide
the
fact that they are filming. This can be achieved
by
:
- Use
of
uniformed officers
- Use
of
marked vehicles...
When a pre-planned deployment is authorised officers must be able to clearly state
the
reasons for
the
filming or photography and provide a copy
of an
explanatory leaflet. These contain details
of the
purpose
of the
filming and provide guidance on how members
of the
public may obtain further information and access to their images."
Then under
the
heading "Associated Documents and Policies" three items are listed,
of
which
the
first is "Standard Operating Procedures for 'Use
of
Overt Filming/Photography'". This document has
not
been disclosed.
THE
CONVENTION RIGHTS
The
material provisions
of the
ECHR are as follows:
"Article 8
1. Everyone has
the
right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference
by
a public authority with
the
exercise
of
this right except such as is in accordance with
the
law and is necessary in a democratic society in
the
interests
of
national security, public safety or... for
the
prevention
of
disorder or crime... or for
the
protection
of the
rights and freedoms
of
others.
Article 10
1. Everyone has
the
right to freedom
of
expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference
by
public authority and regardless
of
frontiers...
2.
The
exercise
of
these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed
by
law and are necessary in a democratic society, in
the
interests
of
national security,... public safety, for
the
prevention
of
disorder or crime... for
the
protection
of the
reputation or
the
rights
of
others, for preventing
the
disclosure
of
information received in confidence, or for maintaining
the
authority and impartiality
of the
judiciary.
Article 11
1. Everyone has
the
right to freedom
of
peaceful assembly and to freedom
of
association with others, including
the
right to form and to join trade unions for
the
protection
of
his interests.
2. No restrictions shall be placed on
the
exercise
of
these rights other than such as are prescribed
by
law and are necessary in a democratic society in
the
interests
of
national security or public safety, for
the
prevention
of
disorder or crime,... or for
the
protection
of the
rights and freedoms
of
others...
Article 14

The
enjoyment
of the
rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
It is
not
I think necessary to cite
the
material provisions
of the
Human Rights Act 1998 (HRA), which gave effect to
the
ECHR in our domestic law. It is common ground (and elementary) that
the
Metropolitan
Police
were
by
law obliged to respect
the
appellant's Convention rights.
ARTICLE 8
The
principal issue in
the
case as
the
argument has developed is whether
the
appellant's right to respect for his private life, guaranteed
by
ECHR Article 8, was violated
by the police
taking and retaining
photographs of
him on 27 April 2005.
(1)
The
Scope
of
Article 8
- Article 8 is one
of the
provisions
of the
ECHR most frequently resorted to in our courts since
the
HRA came into force. It falls to be considered most often in immigration cases, where
the
nature
of the
actual or putative interference with private and family life is plain enough:
the
claimant complains that if he is removed or deported he will be separated from family members, often a spouse and children, settled in
the
United Kingdom. In this present case, however,
the
nature
of the
claimed interference is more elusive. So is
the
nature
of the
private or family life interest which is said to be assaulted. It is useful therefore to
have
in mind
the
many facets
of the
Article 8 right acknowledged
by the
European Court
of
Human Rights, and – if it can be ascertained – what it is that links them.
The
leading case
of
Von Hannover v Germany (2005) 40 EHRR 1 concerned
the
publication
of photographs of
Princess Caroline
of
Monaco engaged in various everyday activities such as horse riding, shopping, dining in a restaurant with a companion, on a skiing holiday, leaving her Paris home with her husband and tripping over
an
obstacle at a private beach club in Monaco.
The
Strasbourg court held that there had been a violation
of
Article 8, even though all
the photographs
were
taken
when
the
Princess was in a public place except those,
taken
at long range, when she was at
the
private beach club. I should cite
the
following passages from
the
judgment:
"50.
The
Court reiterates that
the
concept
of
private life extends to aspects relating to personal identity, such as a
person
's name, or a
person
's picture.
Furthermore, private life, in
the
Court's view, includes a
person
's physical and psychological integrity;
the
guarantee afforded
by
Art. 8
of the
Convention is primarily intended to ensure
the
development, without outside interference,
of the
personality
of
each individual in his relations with other human beings. There is therefore a zone
of
interaction
of
a
person
with others, even in a public context, which may fall within
the
scope
of
'private life'.
51.
The
Court has also indicated that, in certain circumstances, a
person
has a 'legitimate expectation'
of
protection and respect for his or her private life. Accordingly, it has held in a case concerning
the
interception
of
telephone calls on business premises that
the
applicant 'would
have
had a reasonable expectation
of
privacy for such calls'.
52. As regards photos, with a view to defining
the
scope
of the
protection afforded
by
Art.8 against arbitrary interference
by
public authorities,
the
Commission had regard to whether
the photographs
related to private or public matters and whether
the
material thus obtained was envisaged for a limited use or was likely to be made available to
the
general public.
53. In
the
present case there is no doubt that
the
publication
by
various German magazines
of
photos
of the
applicant in her daily life either on her own or with other people falls within
the
scope
of
her private life..."
- In Marper v UK (Applications no. 30562/04 and 30566/04, judgment delivered on 4 December 2008, BAILII: [2008] ECHR 1581)
the
applicants were arrested on suspicion
of
serious
offences
and their fingerprints and DNA samples were
taken
. They were in due course acquitted (or
the
charge
not
pressed). They asked for their fingerprints and DNA samples to be destroyed, but in both cases
the police
refused. They brought judicial review proceedings to challenge
the police
decision, culminating in
an
appeal to their Lordships' House, but were unsuccessful.
The
Strasbourg court said this, under
the
heading "General Principles":
"66.
The
Court recalls that
the
concept
of
'private life' is a broad term
not
susceptible to exhaustive definition. It covers
the
physical and psychological integrity
of
a
person
(see Pretty v.
the
United Kingdom, no. 2346/02, § 61, ECHR 2002 III, 35 EHRR 1, and Y.F. v. Turkey, no. 24209/94, §33, ECHR 2003 IX, 39 EHRR 34). It can therefore embrace multiple aspects
of the person
's physical and social identity (see Mikulic v. Croatia, no. 53176/99, § 53, ECHR 2002-I, BAILII: [2002] ECHR 27). Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within
the
personal sphere protected
by
Article 8 (see, among other authorities, Bensaid v.
the
United Kingdom, no. 44599/98, § 47, ECHR 2001, 33 EHRR 10, I with further references, and Peck v.
the
United Kingdom, no. 44647/98, § 57, ECHR 2003 I, 36 EHRR 41). Beyond a
person
's name, his or her private and family life may include other means
of
personal identification and
of
linking to a family (see mutatis mutandis Burghartz v. Switzerland, 22 February 1994, BAILII: [1994] ECHR 2, § 24, Series A no. 280 B; and Unal Tekeli v. Turkey, no. 29865/96, §42, ECHR 2004 X (extracts), 42 EHRR 53). Information about
the person
's health is
an
important element
of
private life (see Z v. Finland, 25 February 1997, §71, Reports
of
Judgments and Decisions 1997 I, 25 EHRR 371).
The
Court furthermore considers that
an
individual's ethnic identity must be regarded as another such element (see in particular Article 6
of the
Data Protection Convention quoted in paragraph 41 above, which lists personal data revealing racial origin as a special category
of
data along with other sensitive information about
an
individual). Article 8 protects in addition a right to personal development, and
the
right to establish and develop relationships with other human beings and
the
outside world (see, for example, Burghartz, cited above, opinion
of the
Commission, p. 37, § 47, and Friedl v. Austria, judgment
of
31 January 1995, Series A no. 305-B, opinion
of the
Commission, p. 20, § 45, 21 EHRR 83).
The
concept
of
private life moreover includes elements relating to a
person
's right to their image (Sciacca v. Italy, no. 50774/99, § 29, ECHR 2005-I, 43 EHRR 20).
67.
The
mere storing
of
data relating to
the
private life
of an
individual amounts to
an
interference within
the
meaning
of
Article 8 (see Leander v. Sweden, 26 March 1987, §48, Series A no. 116, 9 EHRR 433).
The
subsequent use
of the
stored information has no bearing on that finding (Amann v. Switzerland [GC], no. 27798/95, §69, ECHR 2000-II, 30 EHRR 843). However, in determining whether
the
personal information retained
by the
authorities involves any
of the
private-life aspects mentioned above,
the
Court will
have
due regard to
the
specific context in which
the
information at issue has been recorded and retained,
the
nature
of the
records,
the
way in which these records are used and processed and
the
results that may be obtained (see, mutatis mutandis, Friedl, cited above, §§49-51, and Peck v.
the
United Kingdom, cited above, § 59)."
- These and other cases show that
the
content
of the
phrase "private and family life" is very broad indeed. Looking only at
the
words
of the
Article, one might
have
supposed that
the
essence
of the
right was
the
protection
of
close personal relationships. While that remains a core instance, and perhaps
the
paradigm case
of the
right,
the
jurisprudence has accepted many other facets; so many that any attempt to encapsulate
the
right's scope in a single idea can only be undertaken at a level
of
considerable abstraction. But it is
an
endeavour worth pursuing, since we need if possible to be armed at least with a sense
of
direction when it comes to disputed cases at
the
margin.
The
phrase "physical and psychological integrity"
of
a
person
(Von Hannover paragraph 50, Marper paragraph 66) is with respect helpful. So is
the person
's "physical and social identity" (Marper paragraph 66 and other references there given). These expressions reflect what seems to me to be
the
central value protected
by the
right. I would describe it as
the
personal autonomy
of
every individual. I claim no originality for this description. In Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 Sir Anthony Clarke MR, giving
the
judgment
of the
court, referred at paragraph 31 to Lord Hoffmann's emphasis, at paragraph 51
of
Campbell v MGN Ltd [2004] 2 AC 457, upon
the
fact that "
the
law now focuses upon
the
protection
of
human autonomy and dignity – '
the
right to control
the
dissemination
of
information about one's private life and
the
right to
the
esteem and respect
of
other people.'"
-
The
notion
of the
personal autonomy
of
every individual marches with
the
presumption
of
liberty enjoyed in a free polity: a presumption which consists in
the
principle that every interference with
the
freedom
of the
individual stands in need
of
objective justification. Applied to
the
myriad instances recognised in
the
Article 8 jurisprudence, this presumption means that, subject to
the
qualifications I shall shortly describe,
an
individual's personal autonomy makes him – should make him – master
of
all those facts about his own identity, such as his name, health, sexuality, ethnicity, his own image,
of
which
the
cases speak; and also
of the
"zone
of
interaction" (Von Hannover paragraph 50) between himself and others. He is
the
presumed owner
of
these aspects
of
his own self; his control
of
them can only be loosened, abrogated, if
the
State shows
an
objective justification for doing so.
- This cluster
of
values, summarised as
the
personal autonomy
of
every individual and taking concrete form as a presumption against interference with
the
individual's liberty, is a defining characteristic
of
a free society. We therefore need to preserve it even in little cases. At
the
same time it is important that this core right protected
by
Article 8, however protean, should
not
be read so widely that its claims become unreal and unreasonable. For this purpose I think there are three safeguards, or qualifications. First,
the
alleged threat or assault to
the
individual's personal autonomy must (if Article 8 is to be engaged) attain "a certain level
of
seriousness". Secondly,
the
touchstone for Article 8(1)'s engagement is whether
the
claimant enjoys on
the
facts a "reasonable expectation
of
privacy" (in any
of the
senses
of
privacy accepted in
the
cases). Absent such
an
expectation, there is no relevant interference with personal autonomy. Thirdly,
the
breadth
of
Article 8(1) may in many instances be greatly curtailed
by the
scope
of the
justifications available to
the
State pursuant to Article 8(2). I shall say a little in turn about these three antidotes to
the
overblown use
of
Article 8.
- As for
the
first – "a certain level
of
seriousness" – see for example R (Gillan) v Commissioner
of Police
for
the
Metropolis [2006] 2 AC 307, paragraph 28 per Lord Bingham
of
Cornhill:
"It is true that 'private life' has been generously construed to embrace wide rights to personal autonomy. But it is clear Convention jurisprudence that intrusions must reach a certain level
of
seriousness to engage
the
operation
of the
Convention, which is, after all, concerned with human rights and fundamental freedoms, and I incline to
the
view that
an
ordinary superficial search
of the person
and
an
opening
of
bags,
of the
kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach that level."
- As for
the
second – a "reasonable expectation
of
privacy" – I
have
already cited paragraph 51
of
Von Hannover, with its reference to that very phrase, and also to a "legitimate expectation"
of
protection. One may compare a passage in Lord Nicholls' opinion in Campbell at paragraph 21:
"Accordingly, in deciding what was
the
ambit
of an
individual's 'private life' in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at
the
later stage
of
proportionality. Essentially
the
touchstone
of
private life is whether in respect
of the
disclosed facts
the person
in question had a reasonable expectation
of
privacy."
In
the
same case Lord Hope said at paragraph 99:
"
The
question is what a reasonable
person of
ordinary sensibilities would feel if she was placed in
the
same position as
the
claimant and faced with
the
same publicity."
In Murray v Big Pictures (UK) Ltd Sir Anthony Clarke MR referred to both
of
these passages, and stated:
"35... [S]o far as
the
relevant principles to be derived from Campbell are concerned, they can we think be summarised in this way.
The
first question is whether there is a reasonable expectation
of
privacy. This is
of
course
an
objective question. ...
36. As we see it,
the
question whether there is a reasonable expectation
of
privacy is a broad one, which takes account
of
all
the
circumstances
of the
case. They include
the
attributes
of the
claimant,
the
nature
of the
activity in which
the
claimant was engaged,
the
place at which it was happening,
the
nature and purpose
of the
intrusion,
the
absence
of
consent and whether it was known or could be inferred,
the
effect on
the
claimant and
the
circumstances in which and
the
purposes for which
the
information came into
the
hands
of the
publisher."
- We can see, then, that while
an
individual's personal autonomy makes him
the
master
of
all those facts about his own identity
of
which
the
cases speak, his ownership
of
them depends
by
law on there being a reasonable expectation in
the
particular case that his privacy will be respected. This may operate as a factor limiting
the
scope
of the
Article 8 right. As I will shortly explain, it is a major dimension
of
Mr Grodzinski's case on behalf
of the
respondent Commissioner that what happened here took place in a public street, where people may take
photographs
at any time; there was, he says, no reasonable expectation that
the
appellant would
not
be photographed.
The
third safeguard against too pervasive
an
application
of
Article 8 consists in
the
relation between Article 8(1) and 8(2).
The
first two antidotes, a certain level
of
seriousness and a reasonable expectation
of
privacy, though clearly important, still allow
an
open gate to Article 8(1) in very many circumstances; but it will often be closed
by
Article 8(2). Once
the
8(2) stage is reached, and
the
court is looking for a justification from
the
State for what would otherwise amount to a violation,
the
first question will be whether
the
action complained
of
was
taken
or to be
taken
in pursuance
of
a legitimate aim; that is always crucial. If that condition is met, there will be other issues (such as compliance with
the
requirement
of
legal certainty). Important for present purposes is
the
familiar question, whether
the
action is proportionate to
the
legitimate aim in whose service it was
taken
. At that stage, subject always to context and
the
case's particular subject-matter,
the
court is likely to acknowledge and attribute a margin
of
discretion to
the
responsible State. This exercise provides
an
important contrast with
the
court's task under 8(1). Its application may amount to a significant restraint upon
the
bite
of
Article 8.
- I recognise,
of
course, that
the
court's assessment
of
proportionality will always and necessarily be sensitive to
the
facts
of the
particular case, and
the
scope
of the
State's margin
of
discretion must vary according to
the
importance
of the
impugned right in
the
particular instance,
the
force
of the
legitimate aim involved, and other balancing factors.
The
overall point to be made is that while
the
application
of
8(1) and that
of
8(2) are logically separate, and
the
second arises only if
the
first is fulfilled, there is a symbiosis: Article 8(1) is generously applied, but
the
justifications properly available under 8(2),
not
least given
the
margin
of
discretion which
the
decision-maker is likely to enjoy, may sometimes cut its application close to
the
quick.
The
value
of
this approach is I think to be understood in light
of the
important fact that
the
paradigm case
of
Article 8's application is where
the
putative violation is
by the
State itself. It seems to me entirely in harmony with
the
fair balance which falls to be struck throughout
the
Convention provisions between
the
rights
of the
individual and
the
interest
of the
community (see for example Sporrong v Sweden (1983) 5 EHRR 35, paragraph 69) that where State action touches
the
individual's personal autonomy, it should take little to require
the
State to justify itself, but equally – if (and I repeat, this is critical)
the
action complained is
taken
in good faith to further a legitimate aim – a proper justification may be readily at hand. This is no more than
the
rule
of
law in action. Thus
the
State organ in question, here
the police
, is subjected
by
Article 8 to proper standards
of
conduct; but through
the
margin
of
discretion recognised in
the
jurisprudence,
the
law will allow it proper practical scope to fulfil its public duty.
(2) Article 8(1) – Was There a Prima Facie Violation?
- Against that background I turn to
the
issues in this appeal. It is useful first to refer to
the
respondent Commissioner's case. Mr Grodzinski on his behalf contends that
the
actions
of the police
in taking and retaining
the
pictures did
not
touch
the
appellant's right under Article 8: there was no prima facie violation
of
Article 8(1), and therefore nothing for
the
respondent to justify
by
reference to any
of the
considerations set out in Article 8(2). In
the
course
of
his submissions he drew a distinction between
the
taking
of the photographs
and
the retention of the
images. His case is that neither involved any prima facie violation
of
Article 8(1).
The
learned judge below agreed. Although for reasons I shall explain I consider that this distinction is in
the
end unhelpful (at least in
the
present case) for
the
purpose
of
ascertaining
the
reach
of the
Convention right, it is nevertheless convenient first to consider whether Article 8(1) was engaged
by the
mere taking
of the photographs
.
(2a) Is Article 8(1) Engaged
by the
Mere Taking
of the Photographs
?
- Mr Grodzinski supports his position as regards
the
taking
of the photographs
principally
by
reference to two propositions given
by the
authorities, one broad,
the
other narrow. I
have
already introduced
the
broad proposition. It recalls that
the
ECHR is concerned with
the
protection
of
fundamental rights and freedoms; and is to
the
effect that
the
facts said to constitute
an
interference with
the
right guaranteed
by
Article 8 must attain "a certain level
of
seriousness". This is supported
by
a wealth
of
authority; Mr Grodzinski cites R (Gillan) v Commissioner
of Police
for
the
Metropolis [2006] 2 AC 307, per Lord Bingham
of
Cornhill at paragraph 28, a passage which I
have
set out above at paragraph 22.
- I
have
also foreshadowed
the
second, and narrower, proposition advanced
by
Mr Grodzinski. It is that ordinarily
the
taking
of photographs
in a public street involves no element
of
interference with anyone's private life and therefore will
not
engage Article 8(1), although
the
later publication
of
such
photographs
may be a different matter. Here I should again cite Campbell v MGN Ltd.
The
facts in barest outline were that a well-known fashion model was photographed in a public street leaving a narcotic addiction therapy session, and
the photographs
(or some
of
them) were later published.
The
House
of
Lords was divided as to
the
outcome
of
Miss Campbell's privacy/confidence claim, albeit on a very narrow aspect
of the
case.
The
force
of the
following dicta is unaffected
by
their authors' concurrence in
the
result or otherwise. Lord Hoffmann said this at paragraphs 73 – 74:
"In
the
present case
the
pictures were
taken
without Miss Campbell's consent. That in my opinion is
not
enough to amount to a wrongful invasion
of
privacy.
The
famous and even
the not
so famous
who
go out in public must accept that they may be photographed without their consent… But
the
fact that we cannot avoid being photographed does
not
mean that anyone
who
takes or obtains such
photographs
can publish them to
the
world at large…"
Lord Hope
of
Craighead said this at paragraph 122:
"
The photographs
were
taken of
Miss Campbell while she was in a public place, as she was in
the
street outside
the
premises where she had been receiving therapy.
The
taking
of photographs
in a public street must, as Randerson J said in Hosking v Runting [2003] 3 NZLR 385, 415, para 138, be
taken
to be one
of the
ordinary incidents
of
living in a free community.
The
real issue is whether publicising
the
content
of the photographs
would be offensive..." (see also: [2003] 3 NZLR 385)
Finally, Baroness Hale
of
Richmond at paragraph 154:
"Publishing
the photographs
contributed both to
the
revelation and to
the
harm that it might do.
By
themselves, they are
not
objectionable. Unlike France and Quebec, in this country we do
not
recognise a right to one's own image: cf Aubry v Editions Vice-Versa Inc [1998] 1 SCR 591. We
have not
so far held that
the
mere fact
of
covert photography is sufficient to make
the
information contained in
the photograph
confidential.
The
activity photographed must be private. If this had been, and had been presented as, a picture
of
Naomi Campbell going about her business in a public street, there could
have
been no complaint..."
- In
the
present case there was,
of
course, no question
of the photographs
being published. Mr Grodzinski says there are no aspects
of the
facts that could elevate
the
case to "a certain level
of
seriousness":
the
fact that more than one picture was
taken
, or that
the police
followed
the
appellant down Duke St, cannot suffice. He submits that in
the
end this is no more than
an
instance
of photographs
being
taken
in a public street and there can be no Article 8 complaint.
- It is clear that
the
real vice in Campbell (and also Von Hannover and Big Pictures, which concerned
the
covert photographing
of
a well known author, J K Rowling, her husband and young child in a public street in Edinburgh) was
the
fact or threat
of
publication in
the
media, and
not
just
the
snapping
of the
shutter. Can Mr Westgate for
the
appellant sustain a claim that
the
mere taking
of the
pictures, irrespective
of the
use made
of
them (a claim he vigorously pursued), engages Article 8(1)?
- I would certainly acknowledge that
the
circumstances in which a
photograph
is
taken
in a public place may
of
themselves turn
the
event into one in which Article 8 is
not
merely engaged but grossly violated.
The
act
of
taking
the
picture, or more likely pictures, may be intrusive or even violent, conducted
by
means
of
hot pursuit, face-to-face confrontation, pushing, shoving, bright lights, barging into
the
affected
person
's home.
The
subject
of the
photographers' interest – in
the
case I am contemplating, there will usually be a bevy
of
picture-takers – may be seriously harassed and perhaps assaulted. He or she may certainly feel frightened and distressed. Conduct
of
this kind is simply brutal. It may well attract other remedies, civil or criminal, under our domestic law. It would plainly violate Article 8(1), and I can see no public interest justification for it under Article 8(2). But scenarios
of
that kind are very far from this case. I accept Mr Grodzinski's submission that
the
fact that more than one picture was
taken
, or that
the police
followed
the
appellant down Duke St, cannot turn this episode into anything remotely so objectionable.
The
core
of
Mr Westgate's case is however that it was
the police
– and thus
the
State –
who
took
the
pictures. As I
have
stated (paragraph 28),
the
paradigm case
of
Article 8's application is where
the
putative violation is
by the
State. Can that make all
the
difference, simply as regards
the
taking
of the photographs
and nothing more? In my judgment it cannot. It is no surprise that
the
mere taking
of
someone's
photograph
in a public street has been consistently held to be no interference with privacy.
The
snapping
of the
shutter
of
itself breaches no rights, unless something more is added.
- Accordingly I conclude that
the
bare act
of
taking
the
pictures,
by
whoever done, is
not of
itself capable
of
engaging Article 8(1) unless there are aggravating circumstances. I
have
already referred (paragraph 34) to
the
case where
the
subject
of the
photographer's attention is harassed and hounded, and perhaps assaulted. As I
have
said that is plainly
not
this case. And as for this particular case, I
have
already rejected (again paragraph 34)
the
suggestion that
the
fact that more than one picture was
taken
, or that
the police
followed
the
appellant down Duke St, could give rise to a prima facie violation
of the
Article. I would add that notwithstanding
the
appellant's apprehensions, there is in my view every reason to accept Mr Williams' evidence that he was generally at pains "to keep a safe distance from
the
subject and try
not
to invade their 'personal space'", for reasons he gives at paragraph 5
of
his statement. It is also obvious that
the
new material I
have
described, based on Superintendent Hartshorn's interview, cannot advance
the
case as regards
the
bare act
of
taking
the
pictures.
- I should note that Mr Westgate also submits, somewhat more generally, that
the
use
of
overt photography
by the police
has actually become
an
intimidating feature
of
London life. He relies on a second witness statement from Mr Gask,
an
employee
of
Liberty, for whose introduction in evidence we gave permission at
the
hearing. Mr Gask gives particulars
of
three press publications on
the
subject. One
of
these (
the
Guardian, 30 May 2008) describes
an
operation
by
Essex
police
involving intensive surveillance
of
youths (including repeated photography) in a bid to curb anti-social behaviour;
an
operation which was welcomed
by
some very muscular observations
by the
Secretary
of
State. In my view all this puts
the
matter far too high. None
of
Mr Gask's instances suggests, far less demonstrates, that
the
snapping
of the
shutter
by the police
in a public place is capable without more
of
engaging Article 8(1), or that
the
facts
of
this case (so far as they concern only
the
taking
of the
pictures) do so.
The
real issue is whether
the
taking
of the
pictures, along with their actual and/or apprehended use, might amount to a violation.
(2b) Article 8(1):
the
Taking
of the Photographs
and their Use
- It might be thought that if (as I would hold)
the
mere taking
of the
pictures does
not
engage Article 8(1), there follows a wholly separate question: whether their
retention
and intended use might do so. But I do
not
think this is
the
right way to analyse
the
case. I stated earlier (paragraph 29) that
the
supposed distinction between
the
taking
of the photographs
and
the retention of the
images is in
the
end unhelpful for
the
purpose
of
ascertaining
the
reach
of the
Article 8 right. We
have
seen that
the
respondent's policy is that "cameras are deployed overtly... officers should clearly identify themselves as
police
officers or
police
staff and
not
hide
the
fact that they are filming". This is certainly as it should be; if it were done covertly, there would be other very substantial arguments to consider which in this case do
not
arise. As it is,
the
subject – here,
the
appellant – observes
who
is taking his picture and knows it is a
police
photographer. He is bound to assume that
the
picture will be kept, and that it will, or at least might, be used for a
police
purpose. Mr Grodzinski submitted that if
the
taking
of the
pictures is
not
itself any interference with
the
appellant's Article 8(1) right, it cannot become so
by
reason
of the
pictures' potential use; but this I think is too simplistic.
The
subject's complaint – absent any question
of
intimidation or harassment – is that his image is being recorded
by
State authorities,
an
act to which he does
not
consent, which he believes to be unjustified, and whose precise purpose is unknown to him.
The police
operation, from
the
taking
of the
pictures to their actual and intended
retention
and use, must in my opinion be judged as a whole. Accordingly I am inclined to agree with Mr Westgate's submission recorded
by the
learned judge below as follows:
"24... It is impossible... to 'compartmentalise'
the
taking
of the photographs
without regard to
the
circumstances in which they were
taken
,
the
purposes
of
their
retention
, whether, for example, it is intended thereby to identify
the
individual and whether there is proper and certain legal control over
the
photography as a whole. He submits that here
the
Claimant's identity was discovered and there was a degree
of
systematic gathering
of
information about CAAT activity and its members. He pointed also to evidence from
the
Claimant's solicitor
of
other occasions when members
of
CAAT
have
been similarly photographed."
- Mr Grodzinski cited two decisions
of the
Strasbourg Commission, X v UK (Application no 5877/72) and Friedl v Austria (1995) 21 EHRR 83, which I think tend to confirm that (at least in a case about
the
taking
of
pictures
by the police
) we are to look at all
the
circumstances
of the
case in order to see whether Article 8(1) is engaged.
The
facts
of
X v UK involved a protest against
the
apartheid laws in South Africa.
The
applicant was arrested during a rugby match in England involving
the
South African national team and was photographed upon arrest and thereafter at
the police
station. She said that she was told that
the photographs
would be kept in case she made trouble at future matches.
The
Commission's decision, declaring
the
claim inadmissible, stated as follows:
"
The
Commission has noted here
the
following elements in
the
case as it has been presented: first, that there was no invasion
of the
applicant's privacy in
the
sense that
the
authorities entered her home and took
photographs of
her there; secondly, that
the photographs
related to a public incident in which she was voluntarily taking part; and thirdly, that they were
taken
solely for
the
purpose
of
her future identification on similar public occasions and there is no suggestion that they
have
been made available to
the
general public or used for any other purpose. Bearing these factors in mind,
the
Commission finds that
the
taking and
retention of the photographs of the
applicant could
not
be considered to amount to
an
interference with her private life within
the
meaning
of
Article 8...

An
examination
by the
Commission
of the
applicant's complaint... shows that
the
taking
of
her
photographs
was part
of
and solely related to her voluntary public activities and does
not
therefore disclose any appearance
of
a violation
of the
rights and freedoms set out in
the
Convention and in particular in
the
two articles just considered."
- Friedl (in which X v UK was cited) was a case where there had been a demonstration involving a round-
the
-clock "sit in"
of
about fifty
persons
in
an
underground pedestrian passage in Vienna, held with a view to drawing public attention to
the
plight
of the
homeless.
The police
took
photographs
and also recorded images on a video cassette for use in
the
event
of
a prosecution.
The
applicant also claimed that he was photographed individually, his identity was checked and his particulars noted down.
The
Commission held
the
applicant's Article 8 claim to be admissible but in
the
event found there was no violation, stating:
"49. In
the
present case,
the
Commission has noted
the
following elements: first, there was no intrusion into
the
'inner circle'
of the
applicant's private life in
the
sense that
the
authorities entered his home and took
the photographs
there; secondly,
the photographs
related to a public incident, namely a manifestation
of
several
persons
in a public place, in which
the
applicant was voluntarily taking part; and thirdly, they were solely
taken
for
the
purposes, on 17 February 1988,
of
recording
the
character
of the
manifestation and
the
actual situation at
the
place in question, eg
the
sanitary conditions, and, on 19 February 1988,
of
recording
the
conduct
of the
participants in
the
manifestation in view
of
ensuing investigation proceedings for
offences
against
the
Road Traffic Regulations.
50. In this context,
the
Commission attaches weight to
the
assurances given
by the
respondent Government according to which
the
individual
persons
on
the photographs taken
remained anonymous in that no names were noted down,
the
personal data recorded and
photographs taken
were
not
entered into a data processing system, and no action was
taken
to identify
the persons
photographed on that occasion
by
means
of
data processing.
51. Bearing these factors in mind,
the
Commission finds that
the
taking
of photographs of the
applicant and their
retention
do
not
amount to
an
interference with his right to respect for his private life within
the
meaning
of
Article 8(1)
of the
Convention."
- What, then,
of the
Article 8(1) issue on
the
facts
of the
present case? In his first witness statement
the
appellant says:
"9... I was... confused as to why this was happening to me, as I knew I had
not
done anything wrong.
...
11. I felt threatened and uncomfortable throughout this. At no point would any
of the
officers explain why we were being photographed or questioned. It was my unease at this and my knowledge that I had
not
done anything wrong which meant that I chose
not
to give them my identity...
...
15.
The
knowledge that I
have
nothing to hide in terms
of
my own actions does
not
make this situation any easier for me. Instead it makes me more anxious that
the photographs
were
taken
when there did
not
seem to be any reasonable explanation as to why there was a need to do so.
16. I feel that I do
not
know how any information might be used
by the police
in
the
future, and that I had no control over
the photographs
being
taken
. I feel very uncomfortable that
the
information might be kept on my file
by police
indefinitely..."
The
appellant has
not
been cross-examined, and his witness statement has
of
course been crafted, perfectly properly,
by
his solicitor. But
the
essential point being made is clearly right: he found himself being photographed
by the police
, and he could
not
and did
not
know why they were doing it and what use they might make
of the
pictures.
The
case is in my judgment quite different from X v UK, in which
the photographs
were
taken
on and after
the
applicant's arrest, when
the police
might well
have
been expected to do just that. It is possibly closer to Friedl, but in that case there had been a demonstration – a sit-in – where again
the
taking
of police photographs
could readily
have
been expected. In R (Gillan) v Commissioner
of Police
for
the
Metropolis, which I
have
cited at paragraph 23, Lord Bingham referred to "
an
ordinary superficial search
of the person
and
an
opening
of
bags,
of the
kind to which passengers uncomplainingly submit at airports": another instance in which
the
putative violation
of
Article 8 (if any violation were suggested) consists in something familiar and expected. In cases
of
that kind, where
the police
or other public authority are acting just as
the
public would expect them to act, it would ordinarily no doubt be artificial and unreal for
the
courts to find a prima facie breach
of
Article 8 and call on
the
State to justify
the
action
taken by
reference to Article 8(2).
- I do
not of
course suggest that there is a rigid class
of
case in which, once it is shown that
the
State actions complained
of
(such as taking
photographs
) are expected and unsurprising, Article 8 cannot be engaged; nor likewise that where they are surprising and unexpected, Article 8 will necessarily be applicable.
The
Strasbourg court has always been sensitive to each case's particular facts, and
the
particular facts must always be examined. And
the
first two limiting factors affecting Article 8's application – a certain level
of
seriousness and a reasonable expectation
of
privacy – are
not
sharp-edged.
- But in my judgment it is important to recognise that State action may confront and challenge
the
individual as it were out
of the
blue. It may
have
no patent or obvious contextual explanation, and in that case it is
not
more apparently rational than arbitrary, nor more apparently justified than unjustified. In this case it consists in
the
taking and retaining
of photographs
, though it might consist in other acts.
The
Metropolitan
Police
, visibly and with no obvious cause, chose to take and keep
photographs of an
individual going about his lawful business in
the
streets
of
London. This action is a good deal more than
the
snapping
of the
shutter.
The police
are a State authority. And as I
have
said,
the
appellant could
not
and did
not
know why they were doing it and what use they might make
of the
pictures.
- In these circumstances I would hold that Article 8 is engaged. On
the
particular facts
the police
action, unexplained at
the
time it happened and carrying as it did
the
implication that
the
images would be kept and used, is a sufficient intrusion
by the
State into
the
individual's own space, his integrity, as to amount to a prima facie violation
of
Article 8(1). It attains a sufficient level
of
seriousness and in
the
circumstances
the
appellant enjoyed a reasonable expectation that his privacy would
not
be thus invaded. Moreover I consider with respect that this conclusion is supported
by the
judgment
of the
Strasbourg court in Marper. It will be recalled that
the
first sentence
of
paragraph 67 reads:
"
The
mere storing
of
data relating to
the
private life
of an
individual amounts to
an
interference within
the
meaning
of
Article 8..."
And at paragraph 121
the
court said:
"
The
Government contend that
the retention
could
not
be considered as having any direct or significant effect on
the
applicants unless matches in
the
database were to implicate them in
the
commission
of offences
on a future occasion.
The
Court is unable to accept this argument and reiterates that
the
mere
retention
and storing
of
personal data
by
public authorities, however obtained, are to be regarded as having direct impact on
the
private-life interest
of an
individual concerned, irrespective
of
whether subsequent use is made
of the
data (see paragraph 67 above)."
However
the
impact
of
these observations on
the
present case is I think weakened
by the
fact that
the
appellant's image was
not
placed on
the
CO11 database, which I
have
described in dealing with
the
new material arising from
the
Guardian article, nor on any other database. And I should make clear my view that this new material does
not
assist
the
appellant in any respect.
The
fact that
the
CO11 database exists cannot conceivably support
the
appellant's contention that his Article 8 rights
have
been interfered with, since his image was never placed upon it; and he has no proper business advancing any arguments – if this is what he seeks to do – to assault
the
practice or procedure
of the
respondent (as regards
the
storage and use
of
information) in circumstances where any such arguments cannot actually bear on his claim.
- In arriving at this conclusion on
the
application
of
Article 8(1) I intend no criticism
of the police
. Their action's merits will be for consideration under Article 8(2). Their subjection to
the
discipline
of
Article 8 means that
the
fair balance which falls to be struck throughout
the
Convention provisions between
the
rights
of the
individual and
the
interest
of the
community has to be struck on
the
facts
of
this case. That I think is as it should be.
(3) Article 8(2)
- First, it seems to me that there can be no question but that
the
taking and
retention of photographs of the
appellant on 27 April 2005 were in pursuit
of
a legitimate aim. As I
have
stated (paragraph 4),
the
pictures were
taken
(1) so that if disorder erupted and
offences
were
committed
(or it transpired that
offences
had already been
committed
inside
the
hotel), offenders could be identified, albeit at a later time if necessary; and (2) so that
persons who
might possibly commit public order
offences
at
the
DESi fair in September could be identified in advance: this would or might assist
the police
operation at
the
forthcoming event. In Article 8(2) terms,
the
action was
taken
"for
the
prevention
of
disorder or crime"; perhaps also "in
the
interests
of
... public safety or... for
the
protection
of the
rights and freedoms
of
others". So much is
not
I think disputed.
- Mr Westgate's argument on this part
of the
case is twofold. He submits first that
the police
action was
not
"in accordance with
the
law", because any putative legal justification for it (certainly for
the retention
and use
of the
pictures) is
not
sufficiently clear and precise. Secondly he says that
the police
action was disproportionate to
the
legitimate aim in view.
(3a) "In Accordance with
the
Law"
- Mr Grodzinski submits that
the
taking and
retention of the photographs
was done pursuant to
the
respondent's common law powers to detect and prevent crime. He cites Rice v Connolly [1966] 2 QB 414 per Lord Parker CJ at 419: with respect I need
not
set out
the
passage. As regards
the
requirements
of
clarity and certainty, Mr Grodzinski relied on
the
striking decision
of the
Strasbourg court in Murray v UK (1994) 19 EHRR 193. In that case
the
first applicant was arrested and detained under
the
Northern Ireland (Emergency Provisions) Act 1978. She was suspected
of
collecting money for
the
purchase
of
arms for
the
Irish Republican Army. At
an
Army screening centre she refused to answer questions, was photographed without her knowledge and consent and
the photographs
were kept on record along with personal details about her, her family and her home. She was later released without charge.
The
Strasbourg court (seventeen judges:
the
equivalent
of
today's Grand Chamber) roundly stated:
"
The
taking and,
by
implication, also
the retention of
a
photograph of the
first applicant without her consent had no statutory basis but, as explained
by the
trial court judge and
the
Court
of
Appeal, were lawful under common law.

The
impugned measures thus had a basis in domestic law.
The
Court discerns no reason, on
the
material before it, for
not
concluding that each
of the
various measures was 'in accordance with
the
law', within
the
meaning
of
Article 8(2)."
- McCombe J had this to say:
"69. Mr Westgate submitted that
the
decision in Murray was 'wrong'. He was prepared to accept that Rice v Connolly might provide
the
outline
of
a legal basis for what was done here and prevents
the
conduct in issue from being actionable in tort, but it does
not
address
the
recognised requirements
of
accessibility, certainty and precision now recognised in European jurisprudence. In answer, Mr. Grodzinski submitted that
the
decision in Murray was that
of the
Full Court and post-dated Malone (1985) 7 EHRR 14, Silver v UK (1983) 5 EHRR 347 and Sunday Times v UK 2 EHRR 245 in which
the
principles
of
precision, certainty and accessibility were fully considered; it was inconceivable, it was submitted, that
the
Court would
not have
had those principles well in mind.
70. I recognise that
the
European Court in Malone stated (at paragraph 68
of
its judgment, (1985) 7 EHRR 14 at p. 41) that
the
degree
of
precision required
of the
law will depend on
the
subject matter and, on any footing, any interference with
the
Claimant's rights under Article 8 must, in my view, be no more than modest. In
the
circumstances, it appears that
the
common law power relied upon
by the
defendant must, in
the
circumstances
of
this case, be sufficiently in accordance with
the
law to satisfy Article 8(2). Further, as
the
Defendant rightly submits,
the
exercise
of
that power is subject to public law control reaching over and above
the
inherent 'lawfulness'
of the
actions. In addition, I cannot accept that it is my place simply to dismiss
the
decision
of the
Full Court in Murray as 'wrong', as Mr. Westgate would
have
me do. That would do quite inadequate respect for
the
decisions
of
that court,
the
ultimate arbiter
of
these matters, in a case in close proximity
of
subject matter to
the
present one."
- It appears that on seeing a draft
of the
judgment Mr Westgate disavowed having made so stark a submission; but
the
judge indicates (footnote 8 to
the
judgment) that paragraph 69 accurately records his note
of the
argument. In his skeleton argument for this appeal Mr Westgate submits (paragraph 39) that "Murray dealt only with
the
source
of the
power to take
photographs
and
not
with
the
other established requirements that
the
law be sufficiently precise, certain and accessible", and refers to Malone and Silver. However it is to be noted, as Mr Grodzinski pointed out (skeleton argument paragraph 74), that
the
court in Murray upheld
the
earlier decision
of the
Commission, which had referred expressly (p. 216, paragraph 80) to
the
Malone case.
- It seems to me that
the
judge's reasoning is correct. I would attach particular importance to
the
nature
of the
intrusion said to violate Article 8. There is some suggestion in
the
cases
of
a relativist approach, so that
the
more intrusive
the
act complained
of
,
the
more precise and specific must be
the
law said to justify it. Thus in Gillan, to which I
have
already referred, Lord Hope said this:
"56. As
the
concluding words
of
para 67
of the
decision in Malone v United Kingdom (1985) 7 EHRR 14 indicate,
the
sufficiency
of
these measures must be balanced against
the
nature and degree
of the
interference with
the
citizen's Convention rights which is likely to result from
the
exercise
of the
power that has been given to
the
public authority.
The
things that a constable can do when exercising
the
section 44 [sc.
of the
Terrorism Act 2000] power are limited
by the
provisions
of
section 45(3) and 45(4). He may
not
require
the person
to remove any clothing in public except that which is specified, and
the person
may be detained only for such time as is reasonably required to permit
the
search to be carried out at or near
the
place where
the person
or vehicle has been stopped.
The
extent
of the
intrusion is
not
very great given
the
obvious importance
of the
purpose for which it is being resorted to. In my opinion
the
structure
of
law within which it is to be exercised is sufficient in all
the
circumstances to meet
the
requirement
of
legality."
Malone concerned telephone intercepts. As McCombe J observed at paragraph 70,
the
Strasbourg court in that case stated at paragraph 68 that
the
degree
of
precision required
of the
law will depend on
the
subject matter.
The
previous paragraph, referred to
by
Lord Hope in Gillan, has this:
"Undoubtedly, as
the
Government rightly suggested,
the
requirements
of the
Convention, notably in regard to foreseeability, cannot be exactly
the
same in
the
special context
of
interception
of
communications for
the
purposes
of police
investigations as they are where
the
object
of the
relevant law is to place restrictions on
the
conduct
of
individuals. In particular,
the
requirement
of
foreseeability cannot mean that
an
individual should be enabled to foresee when
the
authorities are likely to intercept his communications so that he can adapt his conduct accordingly. Nevertheless,
the
law must be sufficiently clear in its terms to give citizens
an
adequate indication as to
the
circumstances in which and
the
conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with
the
right to respect for private life and correspondence."
It is also interesting to note this observation
by the
Strasbourg court in Marper:
"96.
The
level
of
precision required
of
domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on
the
content
of the
instrument in question,
the
field it is designed to cover and
the
number and status
of
those to whom it is addressed (Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-XI, with further references, 34 EHRR 55)."
- In
the
present case, though for reasons I
have
given
the
Article 8(1) threshold is crossed,
the
nature
of the
respondent's interference with
the
appellant's private life was, as
the
judge observed, no more than modest. In those circumstances
the
requirement
of
legality is in my judgment satisfied
by the
general common law power referred to in Murray, and
the
judge was right so to hold.
- There were some other points on this part
of the
case. Mr Westgate relied on
the
respondent's failure to disclose
the
"Standard Operating Procedures for 'Use
of
Overt Filming/Photography'", to which I referred at paragraph 13. I should in fairness note that this document has been withheld, as I understand it, on grounds permitted under
the
Freedom
of
Information Act 2000.
The
respondent says that throws no light on
the
circumstances in which
police photographs
may be
taken
. In any event, however,
the
respondent in my judgment does
not
need to rely on
the
terms
of
his policy, or any established internal procedures relating to overt photography, in order to establish compliance with
the
requirement
of
legality.
The
common law power suffices. For
the
same reason I do
not
find it necessary to enter into
the
further debate between
the
parties as to whether
the
legality requirement might be met
by the
provisions
of the
Data Protection Act 1998. Likewise,
the
new material arising out
of the
Guardian article does
not
affect
the
matter.
(3b) Proportionality
- McCombe J dealt with this aspect very shortly. He considered (paragraph 74) that "it was entirely reasonable and proportionate for
the police
to
photograph persons who
, as it might turn out, had been engaged or might be likely to engage in criminal disorder". Ironically, as it has turned out, he relied on some observations
of
Lord Steyn in Marper in
the
House
of
Lords ([2004] 1 WLR 2196, paragraph 1):
"My Lords, it is
of
paramount importance that law enforcement agencies should take full advantage
of the
available techniques
of
modern technology and forensic science. Such real evidence has
the
inestimable value
of
cogency and objectivity. It is in large measure
not
affected
by the
subjective defects
of
other testimony. It enables
the
guilty to be detected and
the
innocent to be rapidly eliminated from inquiries. Thus in
the
1990s closed circuit television ('CCTV') became a crime-prevention strategy extensively adopted in British cities and towns.
The
images recorded facilitate
the
detection
of
crime and prosecution
of
offenders. Making due allowance for
the
possibility
of
threats to civil liberties, this phenomenon has had beneficial effects."
- As I
have
indicated their Lordships' House considered that
the retention of the
applicants' DNA and fingerprints did
not
offend their rights under Article 8.
The
Strasbourg court took a very different view. They held:
"117. While neither
the
statistics nor
the
examples provided
by the
Government in themselves establish that
the
successful identification and prosecution
of
offenders could
not have
been achieved without
the
permanent and indiscriminate
retention of the
fingerprint and DNA records
of
all
persons
in
the
applicants' position,
the
Court accepts that
the
extension
of the
database has nonetheless contributed to
the
detection and prevention
of
crime.
118.
The
question, however, remains whether such
retention
is proportionate and strikes a fair balance between
the
competing public and private interests.
119. In this respect,
the
Court is struck
by the
blanket and indiscriminate nature
of the
power
of retention
in England and Wales.
The
material may be retained irrespective
of the
nature or gravity
of the offence
with which
the
individual was originally suspected or
of the
age
of the
suspected offender; fingerprints and samples may be
taken
– and retained – from a
person of
any age, arrested in connection with a recordable
offence
, which includes minor or non-imprisonable
offences
.
The retention
is
not
time-limited;
the
material is retained indefinitely whatever
the
nature or seriousness
of the offence of
which
the person
was suspected. Moreover, there exist only limited possibilities for
an
acquitted individual to
have the
data removed from
the
nationwide database or
the
materials destroyed...; in particular, there is no provision for independent review
of the
justification for
the retention
according to defined criteria, including such factors as
the
seriousness
of the offence
, previous arrests,
the
strength
of the
suspicion against
the person
and any other special circumstances.
...
125. In conclusion,
the
Court finds that
the
blanket and indiscriminate nature
of the
powers
of retention of the
fingerprints, cellular samples and DNA profiles
of persons
suspected but
not
convicted
of offences
, as applied in
the
case
of the
present applicants, fails to strike a fair balance between
the
competing public and private interests and that
the
respondent State has overstepped any acceptable margin
of
appreciation in this regard. Accordingly,
the retention
at issue constitutes a disproportionate interference with
the
applicants' right to respect for private life and cannot be regarded as necessary in a democratic society. This conclusion obviates
the
need for
the
Court to consider
the
applicants' criticism regarding
the
adequacy
of
certain particular safeguards, such as too broad
an
access to
the
personal data concerned and insufficient protection against
the
misuse or abuse
of
such data."
- Plainly there might be a question whether this court should follow
the
House
of
Lords or
the
European Court
of
Human Rights in Marper. If this court were required to confront such a question, it would follow
the
House
of
Lords: Kay v Lambeth LBC [2006] 2 AC 465. But in my judgment Marper is wholly distinguishable on its facts. Pictures
of the
appellant were
taken
because
the police
believed that he had contact with EA
who
had a history
of
unlawful activity, and there was
the
possibility that he had been involved in unlawful activity in
the
meeting from which EA had been ejected.
The
taking
of the
pictures was in no sense aggressively done.
The retention of the
pictures was carefully and tightly controlled.
The
appellant's image was
not
placed on any searchable database, far less a nationwide database indefinitely retained. But for
the
commencement
of
these proceedings
the
images
of the
appellant would
have
been destroyed after
the
DSEi exhibition.
- In my judgment no useful comparison can be made between
the
facts
of
this case and
the
features
of
Marper which led
the
Strasbourg court to reject
the
State's Article 8(2) justification. There is a qualitative difference between photographic images on
the
one hand and fingerprints and DNA on
the
other,
not
least as regards
the
reach
of the
use to which they might be put.
The
appellant's
photograph
was in my judgment
taken
, and retained, in
the
course
of
a properly controlled operation undertaken for perfectly good policing reasons consistently with a balanced and reasonable published policy.
- I acknowledge that any link between
the
appellant and EA is disputed; that
the
appellant is a
person of
good character; that any suspicion that
the
appellant might
have committed an offence
at or in connection with
the
AGM must
have
been quickly dissipated; and that
the
only justification for keeping
the
images thereafter was to monitor his conduct at
the
DSEi fair several months later. But that was a legitimate aim, in service
of
which
the
images were kept. For my part I find it impossible to categorise what was done as outwith
the
margin
of
operational discretion which, it must surely be acknowledged,
the police
possess in such circumstances. In my judgment
the retention of the
images was proportionate to
the
legitimate aim
of the
exercise.
ARTICLES 10, 11 AND 14
- I hope it will
not
be thought discourteous to Mr Westgate if I deal with these further complaints summarily. I consider it fanciful to suppose that in
the
events which happened there was any interference with
the
appellant's rights under Article 10 and 11. Apart from anything else he was
not
purporting to exercise either such right on
the
occasion in question.
- As for Article 14,
the police
had good reason, arising from their perception
of
events which was itself reasonable, to
photograph the
appellant. There was no discrimination contrary to Article 14.
CONCLUSION
- I would dismiss
the
appeal.
Lord Justice Dyson:
- I gratefully adopt
the
account
of the
facts and issues set out so fully
by
Laws LJ. I agree with his valuable analysis
of the
article 8(1) issue and his reasons for concluding that article 8 is engaged on
the
facts
of
this case. For
the
reasons that follow, however, I
have
reached a different conclusion on
the
article 8(2) issue. Before I explain why in my judgment
the
interference with
the
appellant's article 8 rights was disproportionate, I need to emphasise some
of the
relevant facts. I regret that this will inevitably involve some repetition
of the
account already given
by
Laws LJ.
The
relevant facts
- Chief Inspector Weaver was Operations Chief Inspector at West End Central
Police
Station at
the
material time.
The police
had been informed that there might be some form
of
protest
by
members
of
CAAT at
the
AGM
of
Reed on 27 April 2005. A second demonstration was due to take place on
the
same day outside
the
premises
of
BP
by an
environmental campaigning group and Chief Inspector Weaver was concerned that
the
two protest groups might combine and exacerbate
the
problem. Her concerns that there might be trouble at
the
AGM were further increased when it became known that a named individual (EA),
who
had a history
of
unlawful demonstrations against companies involved in
the
arms trade and
who
had a number
of
previous convictions for
offences
in this context, had been nominated as a proxy to vote at
the
AGM. It was these concerns which led Chief Inspector Weaver to decide that
the
AGM had to be policed: see paras 4 to 6
of
her witness statement.
- 24 officers were allocated to
the
policing
of the
event. In addition, intelligence gathering officers were deployed.
The
purpose
of the
intelligence gathering teams was to "gather intelligence, primarily
by
taking
photographs
and making notes which may be
of
subsequent evidential value should
offences
be
committed
or disorder break out" (para 10
of
Chief Inspector Weaver's statement).
- At para 13, she says:
"
The
reason why I decided to request
the
use [
of
] FITs and EGs was because
of the
ongoing nature
of the
protests against companies involved in
the
arms trade and
the
attendance
of
known trouble makers so that I believed that public disorder may result. In such situations it is vital that
the police
know
who
has attended and what their involvement is".
- And again at para 15:
"Intelligence had to be gathered at
the
time so that, should disorder result or
offences
subsequently come to light, those guilty
of an offence
could be identified so that they could be arrested, if
not
at
the
time then in
the
future. Thus if those attending
the
AGM caused trouble they could be identified and either arrested at
the
time or if appropriate, shortly after. Further, I took
the
view that if those individuals
who
might attend and commit public order or other
offences
at
the
DSEi fair in September could be identified in advance,
by
ascertaining their identity at
the
Reed AGM, that would help to
police the
DSEi event and deal with any such
offences
".
Police
Sergeant Dixon was
an
officer in one
of the
intelligence gathering teams on 27 April. In his statement, he says (para 5) that
of
particular interest to
the
team were two activists (EA and RH) both
of
whom had a history
of
violent protests and
who
, it was believed, had a tendency to encourage otherwise peaceful protesters to commit
offences
.
The
AGM was conducted peacefully, although EA and RH were ejected
by
private security officials for disrupting
the
meeting.
The
appellant left
the
hotel after
the
conclusion
of the
AGM at about 12.30 pm with another man (IP). They stopped to speak to KB and were joined
by
EA. It was in these circumstances (ie because
the
appellant and IP were seen associating with EA) that PS Dixon says that he directed
the
photographer to take
the photographs
which
have
given rise to these proceedings. PS Dixon says at para 10
of
his statement:
"
The
decision to take
the photographs of the
claimant and IP was
not
solely because
of
their association with EA but also because
the photographs
could be
of
subsequent evidential value if any, as yet undiscovered,
offences
had been
committed
inside
the
hotel. Such
offences
are
not
always immediately apparent and may
have
become known only after
the
meeting was over."
The
evidence as to
the
extent
of the
association between EA and
the
appellant is as follows.
The
appellant has no recollection
of
being joined
by
or seeing EA after
the
AGM. IP says that he and
the
appellant had a "brief chat" with EA lasting about one minute before they dispersed. PS Dixon says that
the
group comprising
the
appellant, IP and KB was joined
by
EA, but he does
not
say how long they stayed together. Neal Williams,
the
photographer, says that at about 12.44,
the
two females
who
had been ejected from
the
meeting joined other protesters outside
the
hotel and that was when he was asked to take
the photographs
. He does
not
say how long
the
two females remained with
the
appellant.
The
only other evidence to which I should refer is that
the
appellant is a man
of
good character with no previous convictions. Some time after 27 April (on a date which has
not
been disclosed),
the police
discovered his identity. This they did
by
discovering
the
names
of the
new shareholders in Reed and working out
by
a process
of
elimination that
the person
photographed in
the
company
of
IP and others was
the
appellant.
- A number
of
points need to be emphasised. First,
the
only evidence
of
a link between
the
appellant and EA is
the
brief association between them when
the
appellant was speaking to IP and they were joined
by
EA for about one minute. There is no evidence that
the
appellant went to
the
meeting with EA or that after he had been photographed outside
the
hotel, he was accompanied
by
her as he went along Duke Street and into Bond Street underground station.
- Secondly,
the
principal reason why Chief Inspector Weaver involved
the
intelligence gathering teams was her concern that there might be disorder and criminal conduct at
the
AGM and/or in
the
vicinity
of the
hotel. Moreover,
the
reason why PS Dixon requested
photographs
to be
taken of the
appellant (and IP) was because
of
their association with EA and because such
photographs
could be
of
evidential value if it transpired that
offences
had been
committed
inside
the
hotel. Chief Inspector Weaver did, however, also see advantage in gathering evidence which would enable those
who
might attend
the
DSEi fair in September to be identified as well.
The
possible use
of the photographs
to identify
persons who
attended
the
DSEi fair does
not
, however, seem to
have
been a factor which led to
the
decision
of
PS Dixon to require
the photographs
to be
taken
.
- Thirdly, it was acknowledged
by
Chief Inspector Weaver (and as is obvious), that if any
offences
had been
committed
in
the
hotel, this would
have
become apparent shortly after
the
conclusion
of the
AGM.
- Fourthly, although it is
not
clear when
the police
first became aware that
the
appellant was a man
of
good character, they did know on 27 April that, unlike EA and RH, he had
not
been ejected from
the
meeting and that he was
not
guilty
of
any misconduct outside
the
hotel; and they must
have
known within a few days
of
27 April (at
the
latest) that there was no evidence that he had been guilty
of
any misconduct inside
the
hotel either.
- It follows that, within at most a few days
of the
conclusion
of the
meeting, there could no longer be any justification for retaining
the photographs
as evidence
of the
identity
of
a
person who
might
have committed an offence
at
the
meeting.
The
justification for retaining
the photographs
thereafter must
have
been as evidence
of the
identity
of
a
person who
might attend
the
DSEi fair several months later and
who
might commit
an offence
at that meeting.
- It is against this background that it is necessary to consider whether
the
interference with
the
appellant's article 8 right to a private life constituted
by the
taking and retaining
of the photographs
was justified pursuant to article 8(2).
Article 8(2)
Legitimate aim
- I agree with Laws LJ that
the
taking and
retention of the photographs
were in pursuit
of
a legitimate aim, namely "for
the
prevention
of
disorder or crime" or "for
the
protection
of the
rights and freedoms
of
others": article 8(2).
The
phrase "prevention
of
disorder or crime" includes
the
detection
of
disorder or crime: see, for example, Marper v UK (Application 30562/04 and 30566/04, judgment
of
ECtHR 4 December 2008, BAILII: [2008] ECHR 1581).
The
contrary was
not
argued
by
Mr Westgate.
"In accordance with
the
law"
The
next question is whether
the
interference with
the
appellant's article 8 rights was "in accordance with
the
law". In view
of the
conclusion that I
have
reached on
the
issue
of
proportionality, I do
not
find it necessary to express a view on this question. I do, however, wish to express one reservation about Laws LJ's analysis.
- At [53], Laws LJ attaches particular importance to
the
nature
of the
intrusion said to violate article 8 and suggests that, broadly,
the
more intrusive
the
act complained
of
,
the
more precise and specific must be
the
law said to justify it. I would merely say that I
have
some doubt as to whether [56]
of the
speech
of
Lord Hope in Gillan supports such a proposition or that, if it does, it is supported
by the
concluding words
of
[67]
of the
decision in Malone v UK (1985) 7 EHRR 14. In any event, I see no support for this proposition in
the
speech
of
Lord Bingham in Gillan. It is to be noted that all
the
other members
of
their Lordships' House (including Lord Hope himself) agreed with
the
reasoning
of
Lord Bingham.
"Necessary in a democratic society": proportionality
The
phrase "necessary in a democratic society" has been considered and applied
by the
ECtHR on many occasions. In Marper at [101],
the
court said:
"
An
interference will be considered "necessary in a democratic society" for a legitimate aim if it answers a "pressing social need" and, in particular, if it is proportionate to
the
legitimate aim pursued and if
the
reasons adduced
by the
national authorities to justify it are "relevant and sufficient".
- In deciding whether
the
interference is necessary,
the
court must
have
regard to
the
nature
of the
Convention right in issue, its importance for
the
individual,
the
nature
of the
interference and
the
object pursued
by the
interference: see Marper at [102]. At [103],
the
court went on to say that
the
protection
of
personal data is
of
fundamental importance to a
person
's enjoyment
of
his or her article 8 rights and
the
domestic law must afford appropriate safeguards to prevent any such use
of
personal data as may be inconsistent with
the
guarantees
of
article 8.
The
need for such safeguards is all
the
greater where
the
protection
of
personal data undergoing automatic processing is concerned,
not
least when such data are used for
police
purposes.
- In other words,
the
court is required to carry out a careful exercise
of
weighing
the
legitimate aim to be pursued,
the
importance
of the
right which is
the
subject
of the
interference and
the
extent
of the
interference. Thus
an
interference whose object is to protect
the
community from
the
danger
of
terrorism is more readily justified as proportionate than
an
interference whose object is to protect
the
community from
the
risk
of
low level crime and disorder.
The
importance
of the
former was emphasised
by the
House
of
Lords in R (Gillan) v Commissioner
of Police of the
Metropolis [2006] UKHL 12, [2006] 2 AC 307: see per Lord Bingham
of
Cornhill at [29] and Lord Scott
of
Foscote at [62].
- I agree that Marper is wholly distinguishable on
the
facts. Whether
an
interference with a Convention right is proportionate is a fact-sensitive question. I accept that
the retention of the photographs by the police
was
not an
interference
of the
utmost gravity with
the
appellant's article 8 rights. Nor, however, should it be dismissed as
of
little consequence.
The retention by the police of photographs taken of persons who have not committed an offence
, and
who
are
not
even suspected
of
having
committed an offence
, is always a serious matter. I say this notwithstanding
the
fact that I accept that
the retention of the photographs
in this case was tightly controlled and that there is a qualitative difference between photographic images on
the
one hand and fingerprints and DNA on
the
other. It should also be recorded that
the
evidence is that, had these proceedings
not
been commenced,
the photographs
would
have
been destroyed after
the
DSEi fair. That is because
the
appellant did
not
attend that event and there was no intelligence suggesting that he had prior to that event (and after
the
AGM) participate in any other unlawful activities: see para 13
of the
statement
of
Superintendent Gomme.
The retention by the police of photographs of
a
person
must be justified and
the
justification must be
the
more compelling where
the
interference with a
person
's rights is, as in
the
present case, in pursuit
of the
protection
of the
community from
the
risk
of
public disorder or low level crime, as opposed, for example, to protection against
the
danger
of
terrorism or really serious criminal activity.
- I return to
the
facts
of
this case. Within a few days
of the
AGM,
the retention of the photographs
could
not
rationally be justified as furthering
the
aim
of
detecting
the
perpetrators
of
any crime that may
have
been
committed
during
the
meeting. There was no realistic possibility that evidence that a crime had been
committed
at
the
meeting would only be obtained weeks or months after
the
event.
The
meeting was well attended. There were Reed officers and private security officials present
who
were on
the
look-out for trouble-makers and
who
did indeed eject two
of
them (although there is no evidence that even they
committed
any
offence
). I repeat that
the
principal object
of the
evidence-gathering operation was to obtain evidence about possible disorder and criminal conduct at
the
AGM and/or in
the
vicinity
of the
hotel and
the
sole reason given
by the
officer
who
instructed
the
photographer to take
the photographs
was to obtain evidence which would be
of
value if
offences
had been
committed
at
the
AGM.
The
fact that
the
appellant had been seen briefly in
the
company
of
EA after
the
AGM may
have
provided further justification for retaining
the photographs
for a few days after 27 April. But thereafter, in my judgment, neither
the
brief association with EA nor anything else relating to
the
AGM provided any justification for retaining
the photographs
any longer.
- It follows that
the
only justification advanced
by the police
for retaining
the photographs
for more than a few days after
the
meeting was
the
possibility that
the
appellant might attend and commit
an offence
at
the
DSEi fair several months later. But in my judgment, even if due allowance is made for
the
margin
of
operational discretion, that justification does
not
bear scrutiny. First,
the
DSEi fair was
not the
principal focus
of the
evidence-gathering operation.
The
principal concern
of the police
was what might happen at
the
AGM and/or in
the
vicinity
of the
hotel. But for that concern,
the
evidence would suggest that
the
operation would
not have taken
place in
the
first place. Secondly,
the
sole reason why
the photographs
were
taken
was to obtain evidence in case
an offence
had been
committed
at
the
AGM. Thirdly, once it had become clear that, notwithstanding his brief association with EA,
the
appellant had
not committed
any
offence
at
the
AGM, there was no reasonable basis for fearing that, even if he went to
the
DSEi fair, he might commit
an offence
there. His behaviour on 27 April was beyond reproach, even though he was subjected to what he considered to be
an
intimidating experience. There was no more likelihood that
the
appellant would commit
an offence
if he went to
the
fair than that any other citizen
of
good character
who
happened to go to
the
fair would commit
an offence
there.
- It is for
the police
to justify as proportionate
the
interference with
the
appellant's article 8 rights. For
the
reasons that I
have
given, I am
of the
opinion that they
have
failed to do so. I would allow this appeal.
Lord Collins
of
Mapesbury :
- I agree with Dyson LJ that
the
appeal should be allowed. Plainly
the
court must
not
be quick to second guess, or interfere with, operational decisions
of the police
force. All that in fact happened at
the
AGM
of
Reed Elsevier plc on April 27, 2005 was that two people, EA (
who
had a criminal record
of
unlawful activity against organisations in
the
defence industry) and RH, were ejected
by
private security staff after chanting slogans, without any suggestion
of
any involvement in criminal activity. There was a very substantial
police
presence. It consisted
of
a chief inspector, 3 sergeants, 21 constables, 5 officers in forward intelligence teams, and 3 officers in
an
evidence gathering team (together with a civilian photographer in uniform). With
the
benefit
of
hindsight,
of
course,
the
deployment
of
33
police
officers and a photographer in uniform was
not
necessary.
- When I first read
the
papers on this appeal, I was struck
by the
chilling effect on
the
exercise
of
lawful rights such a deployment would
have
. I was also disturbed
by the
fact that notwithstanding that
the police
had no reason to believe that any unlawful activity had
taken
place, and still less that Mr Wood had
taken
part in any such activity, when he (with Mr Prichard) walked from
the
hotel in Grosvenor Square where
the
meeting had
taken
place towards Bond Street Underground station via Duke Street he was followed
by
a
police
car, and then questioned about his identity
by
4
police
officers, two
of
whom then followed him on foot and tried to obtain
the
assistance
of
station staff to ascertain Mr Wood's identity from his travel card.
The
reason for
the police
presence was that demonstrators against
the
arms trade might try to disrupt
the
AGM.
The
purpose
of the
evidence gathering team with
the
photographer was "to gather intelligence, primarily
by
taking
photographs
and making notes which may be
of
subsequent evidential value should
offences
be
committed
or disorder break out" (Chief Inspector Weaver, para 10). Chief Inspector Weaver decided to use
the
evidence gathering team because public disorder might break out, and it was therefore vital that
the police
knew
who
had attended and what their involvement was (para 13). Intelligence had to be gathered at
the
time, so that, should disorder result or
offences
subsequently come to light, those guilty
of an offence
could be identified: para 15. She also added that she "took
the
view that if those individuals
who
might attend and commit public order or other
offences
at
the
DSEi [Defence Systems and Equipment International] fair in September could be identified in advance,
by
ascertaining their identity at
the
Reed AGM, that would help to
police the
DSEi event and deal with any such
offences
."
Police
Sergeant Dixon headed
the
evidence gathering team. Chief Inspector Weaver told him that one
of
her fears was that once inside
the
hotel demonstrators might commit acts which would only subsequently come to light. EA was
of
specific interest to
the
evidence gathering team, and
the
decision to take
the photographs
was "
not
solely because
of
their association with EA but also because
the photographs
could be
of
subsequent evidential value if any, as yet undiscovered,
offences
had been
committed
inside
the
hotel" (PS Dixon, para 10). PS Dixon says that such
offences
are
not
always immediately apparent and may become known only after a meeting is over. But unless there was absolutely no communication between Reed Elsevier's staff or security officers and
the police
, I do
not
find it easy to imagine what undiscovered
offences
might
have
been
committed
.
- There is conflicting evidence on whether Mr Wood and EA were together in Grosvenor Square after
the
meeting. But what is
not
in doubt is that Mr Wood is a
person of
good character with no previous convictions; and that
the police
had no reason to believe that he had
taken
any part in unlawful activities at
the
AGM, or indeed been guilty
of
any misconduct at all. To
the
extent that
the photographs
were
taken
in case any unlawful activity inside
the
hotel were subsequently to come to light, it would
have
been apparent very soon after
the
meeting (as Dyson LJ says, within a few days at most) that no criminal
offences
had been
committed
.
- I agree with Laws and Dyson LJJ that Article 8(1) was engaged, but that
the
taking and
retention of the photographs
were in pursuance
of
a legitimate aim, namely "for
the
prevention
of
disorder or crime" or "for
the
protection
of the
rights and freedoms
of
others" for
the
purposes
of
Article 8(2).
- But I agree with Dyson LJ that
the
interference was
not
proportionate. He has referred to
the
crucial facts,
of
which it seems to me that
the
following are
the
most important. First,
the
main object
of the
evidence gathering operation was to obtain evidence about possible disorder and criminal conduct at
the
AGM and/or in
the
vicinity
of the
hotel, and
the
sole reason given
by
PS Dixon
who
instructed
the
photographer to take
the photographs
was to obtain evidence which would be
of
value if
offences
had been
committed
at
the
AGM. Second,
the retention of the photographs
for more than a few days could
not
be justified as furthering
the
aim
of
detecting
the
perpetrators
of
any crime that may
have
been
committed
during
the
meeting. Third, a possible brief association between Mr Wood and EA on
the
day did
not
provide any justification for a lengthy
retention of the photographs
. Fourth,
the
suggestion that
retention of the photographs
was justified
by the
possibility that Mr Wood might attend and commit
an offence
at
the
DSEi fair several months later is plainly
an
afterthought and had nothing to do with
the
decision to take
the photographs
.
- Like Dyson LJ, I prefer to express no concluded view on
the
question whether
the
interference was "in accordance with
the
law". In many cases
the
European Court
of
Human Rights has said that
not
only must
the
impugned act
have
some basis in domestic law, but also that it should be compatible with
the
rule
of
law and be accessible to
the person
concerned
who
must be able to foresee its consequences for him: for recent examples see, e.g. Liberty v United Kingdom [2008] ECHR 58243/00, July 1, 2008; Marper v United Kingdom, December 4, 2008 BAILII: [2008] ECHR 1581; Iordachi v Moldova, February 10, 2009, BAILII: ([2009] ECHR 256.
The
taking
of the photographs
in
the
present case was lawful at common law, and there is nothing to prevent their
retention
. There is a published policy
by the
Metropolitan
Police
on
the
use
of
overt filming and photography, but
not
on
the retention of photographs
.
- As Laws LJ says, there is a striking decision
of the
full court
of the
European Court
of
Human Rights in Murray v United Kingdom (1995) 19 EHRR 193. That case concerned
the
right
of the
Army in Northern Ireland to take and retain
photographs of
a
person who
was being questioned at
an
Army screening centre on suspicion
of
being involved in
the
collection
of
money for IRA arms purchases.
The
Court noted (at [40]) that
the
common law rule entitling
the
Army "to take a
photograph
equally provides
the
basis for its
retention
" and said (at [88]): "
The
taking and,
by
implication, also
the retention of
a
photograph of the
first applicant without her consent had no statutory basis but, as explained
by the
trial court judge and
the
Court
of
Appeal, were lawful under
the
common law."
The
Court concluded (ibid): "
The
impugned measures thus had a basis in domestic law.
The
Court discerns no reason, on
the
material before it, for
not
concluding that each
of the
various measures was 'in accordance with
the
law', within
the
meaning
of
Article 8(2)."
- Nevertheless, it is plain that
the
last word has yet to be said on
the
implications for civil liberties
of the
taking and
retention of
images in
the
modern surveillance society. This is
not the
case for
the
exploration
of the
wider, and very serious, human rights issues which arise when
the
State obtains and retains
the
images
of persons who have committed
no
offence
and are
not
suspected
of
having
committed
any
offence.