[Printable RTF version]
||Neutral Citation Number:  EWHC 3187 (Admin)
||Case No: CO/60/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SIMON
MR JUSTICE WARBY
|| R (on the application of Michael Segalov)
The Chief Constable of Sussex Police
The Chief Constable of Greater Manchester Police
Jude Bunting (instructed by Irvine Thanvi Natas, Solicitors) for the Claimant
Andrew Waters (instructed by Weightmans LLP) for the 1st Defendant
James Berry (instructed by Plexus Law) for the 2nd Defendant
Hearing dates: 14 November 2018
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Simon:
- This is the judgment of the Court.
- Michael Segalov ('the claimant') brings the present claim for judicial review, challenging decisions made by the first defendant ('Sussex Police') and the second defendant ('GMP'), which resulted in the refusal of his accreditation to attend the Labour Party Conference held at Brighton in September 2017 ('Party Conference').
- The claimant is a political journalist and the news editor of Huck magazine. He also works as a freelance commentator for national newspapers and appears on broadcast media discussing political issues. At the material time he carried a valid press card under a scheme which is regulated by 'UK Press Card Authority Limited'. This scheme is recognised by all UK police forces and by the Ministry of Justice. Since 2015, the claimant has also been an active member of the Labour Party and a commentator on its internal politics, interviewing leading members of the Labour Party, including the Leader of the Opposition. Importantly for present purposes, he has never been arrested, cautioned or reprimanded for any criminal offence.
- The Sussex Police was the 'host' police force, responsible for the policing and security of the Conference.
- The Party Conference Policing Group ('PCPG') is a working group of Chief Constables, which decided that a national policing team, the National Accreditation Team ('NAT'), should be established to conduct the initial verification and screening of applicants for accreditation to secure zones at party conferences. It was decided, for convenience, that the NAT would operate from within the GMP, although its work in relation to party conferences is funded entirely by a Home Office grant and not the GMP. The NAT also covers accreditation to other large gatherings, including national sporting events.
- At the heart of the claim is the role played by the NAT in referring the claimant's accreditation to Sussex Police as host police force and Sussex Police's decision to refuse the claimant's accreditation to the Conference.
The undisputed facts
- On 29 June 2017, the claimant applied for press accreditation to attend the Conference, which was due to start on 24 September 2017, applying as a press delegate of Huck. As the Conference date approached, and having heard nothing about his application, he raised the matter informally through contacts with the Labour Party. Eventually, in an email from the Labour Party dated 17.26 on 19 September, he was informed: 'I regret to inform you that we are unable to process your application as it has not passed the necessary police security checks.'
- He was told that if he required further information he should write to Police Sergeant Martin Horsfield, who was described as 'National Accreditation Manager, Conference Planning Unit' at the GMP Force Headquarters. The claimant assumed that a mistake had been made and tried to make contact with Sgt Horsfield by telephone. At 08.53 on 20 September he sent an email asking for information about the refusal of accreditation. At 15.13, Sgt Horsfield responded: 'Unfortunately, we do not divulge the reasons for the refusal of accreditation.' The claimant was advised that he could go to a particular website for further information. The website explained how to make a Subject Access Request under the Data Protection Act 1998.
- The claimant tried to contact Sgt Horsfield for more information without success. He then instructed solicitors. At 09.56 on 22 September 2017, his solicitors sent an urgent Pre-Action Protocol ('PAP') letter asking GMP to change its decision so as to allow the claimant to attend the Conference. The letter asked for an urgent substantive reply. The reply was sent at 15.30 from the GMP Legal Services Department. In short, it contended that the PAP letter had been sent to the wrong police force, it should have been directed to Sussex Police. It added that there was no practical purpose in asking the GMP to change its decision, since it had not made the decision on accreditation. A PAP letter addressed to Sussex Police on 22 September was eventually acknowledged on 23 October.
- As a result of the lack of accreditation, the claimant was unable to attend the Conference, although he was able to attend and participate in fringe meetings at various other venues in Brighton for which accreditation was not required. He claims that he suffered financial loss and reputational damage as a result of the decision to refuse him accreditation, for which he holds both defendants legally responsible.
The relevant policies
The NAT policy
- On 26 February 2018, the GMP disclosed a document entitled: 'National Accreditation Team: Political Conference Policing Group (PCGC) Accreditation Process'. It is marked, 'Restricted'. This document (the 'NAT Policy') provided:
1. This paper sets out the core criteria and processes for evaluating and determining applications for accreditation refusal in connection with Political Party Conference security.
2. [GMP] National Accreditation Team ('NAT') deliver the annual national accreditation requirements for all autumn Political Party Conferences. The data is supplied by the Political Party via a secure website
4. The NAT maintains overall responsibility for the accreditation process. If an applicant is suspected of posing a threat to the security of the Conference, the NAT will discuss the finding with the host police force. The Silver Commander and/or SecCo in the host police force, will be the decision maker as to whether the applicant is afforded accreditation or refused access.
5. The NAT check individuals against an agreed set of Police/Intelligence databases …
These checks will enable cases to be classified as:
APPROVED - checks do not reveal any issues at all
REFERRED - checks reveal some issues for example:
- Previous convictions/intelligence that cause concern
6. In terms of decision making and governance it is agreed that:
- APPROVED - The NAT have autonomy to agree these cases without … any other third party
- REFERRED - They will be determined by the host Conference Police force under the escalation/referral process
7. The criteria for a referral will be one or more convictions and/or police information/intelligence regarding:
- Protests/demonstrations, single issue group incidents
- any other types of conviction, intelligence, or matter that gives rise to concerns or doubts as to whether the person presents a threat to the security of the Conference.
11. Unless a conviction record or local police intelligence material meets the threshold for referral, the NAT Accreditation Officer carrying out the checks may authorise the applicant's accreditation. This is based on an assessment of the relative seriousness of the issue that has come to light and the overall context of the individual case …
Paragraph 12 of the NAT Policy provided for the need for police intelligence material to satisfy a threshold criterion for referral. Where it did, an accreditation referral form would be completed, with an outline of the circumstances and reasons for referring the application to the host police force. Paragraph 13 required the referral form to be sent to the host force for consideration and a decision. Paragraph 14 provided that, if the decision of the host force were a refusal of accreditation, the NAT would inform the political party of the outcome, but 'no information will be given as to the reason for refusal'. A copy of the refusal form would be stored electronically on the applicant's record, with the NAT collating and holding all referrals, and producing them on request from the Home Office. All documentation would also be held by the host police force in accordance with their retention policy. Paragraph 18 made clear that there was no right of appeal against accreditation refusal.
Some of these provisions require some further explanation. First, the information about those who have applied to attend a conference would come from the relevant political party (see paragraph 2), in this case the Labour Party. Second, if the NAT did not approve accreditation it would refer it to the host force. It was the host force and not the NAT which decided whether to refuse accreditation (see paragraphs 4 and 6). In the present case the decision was made by the Sussex Police and, in particular, the Silver Commander for the Conference. Third, the criteria for consideration of whether an application should be referred included intelligence giving rise to concern or doubt as to whether an applicant presented a threat to the security of the Conference (see paragraphs 5 and 7). Among the categories in respect of which information or intelligence would justify referral were: public order, terrorism, protests/demonstrations, single issue group incidents, mental illness and fixated behaviour. The nature of some of these categories, for example, terrorism may explain why no reasons were to be given for refusal of accreditation.
The National Accreditation Standard
The National Accreditation Standard ('NAS') was an appendix to the NAT Policy. This provided, among other provisions:
This document is intended to provide the required standards of accreditation, which will be carried out by the [NAT] using the Conference Accreditation System (CAS) …
1. Whilst these will be subject to local agreements in line with the current reporting structure for the relevant conference planning team, the following guidance is given:
2. A nominated senior officer, such as a Silver Commander … will be responsible for determining whether an applicant should be refused accreditation. This will be the responsibility of each individual force hosting the applicable conference.
3. The accreditation manager will bring to the attention of the nominated senior officer details of any person who is considered to pose a threat to the security of the conference.
4. CAS will prepare an electronic 'Pass Refusal Form'. This will be automatically populated with the applicant's details, the checks carried out and the results obtained. The Accreditation Officer will outline the circumstances and reason for refusal which will be completed by the local force accreditation officer.
5. Where an application is refused, details will be entered in CAS and the mCash result set to 'Failed'. The mCash notes should be completed and record a summary of the reason for the refusal. The electronic 'Pass Refusal Form' will be attached to the CAS application. A paper copy may be retained for a period as deemed necessary by the local conference Force.
6. Where the circumstances surrounding the potential threat are considered to be sensitive, the results and rationale should be omitted from the electronic form and be hand-written in a printed version. A sanitised version may also need to be produced using a form of words, which can be subsequently provided to an applicant, if requested.
We have added numbers to these paragraphs for ease of reference.
Operation Otter - Accreditation Plan
On 30 April 2018, Sussex Police belatedly disclosed a policy titled 'Operation Otter - Accreditation Plan', as its operative policy. The document is difficult to read since it has been amended by strike-outs and additions. The material parts are as follows:
1.1 The Accreditation Process
The accreditation process is based on the National Accreditation Standard (NAS) which is the minimum standard of checks agreed by all Police Forces involved in conference policing.
2.0 Authorisation Levels
The [NAT] will be responsible for conducting checks as required on all applications via the Labour Party …
2.6 Pass Refusal
The National Accreditation Manager will complete a list and inform the Planning Coordinator of all persons, who in their judgement meets the referral criteria in conjunction with nationally agreed referral policy. This will be done after all vetting checks. The rationale will be based on the individual's history in relation to convictions and intelligence and whether they are deemed to be at risk to the security of the conference …
Should the NAT have any concerns regarding a potential refusal for a member/delegate of the Labour Party, then the National Accreditation Manager will present a pass refusal form and inform the Planning Co-ordinator who will review and decide if the person is to be refused or approved.'
As indicated by its heading, §2.6 was originally drafted to deal with a refusal of accreditation.
The claimant's application for accreditation
On 10 July, the Labour Party sent the claimant's application for accreditation (made on 29 June 2017) to GMP for vetting. The application was processed by the NAT on 24 August.
The search of police intelligence sources yielded information which was set out in a NAT spreadsheet. There were two headings.
Under the heading 'CTU (Counter-terrorism Unit) Intelligence':
… is known XLW [Extreme Left Wing] activist. He has been involved in a number of protests in London including anti-austerity demonstrations and in a number of protests against BNP on 1/6/2013 at which several dozen anti-fascist protestors were arrested, and he was involved in a protest against the Commissioner of the Metropolitan Police at Sussex University on 25/2/2015.
Under the heading 'PND [Police National Database] Intelligence', there were references to the claimant's involvement in various protests and demonstrations in various police force areas: Sussex (28/10/2015), Metropolitan (5/6/2015) and West Midlands (23/5/2015). The last entry referred to an incident in the Metropolitan Police area (29/7/2016):
Damages - suspected together with others, released large number of crickets and cockroaches inside the Byron Burgers restaurant. CCTV could not identify any of the suspects clearly.
We should note that the claimant denies that he was present at some of the incidents described. In relation to others, he says that his involvement has been mischaracterised. For example, in relation to the Byron Burger incident, his evidence is that he was there 'purely and exclusively as a journalist' and not as a participant in what occurred. He had been notified at short notice by an anonymous source. He also denies that he is an 'extreme left wing' activist.
As envisaged by the NAT accreditation process, Sgt Horsfield sent the NAT spread sheet to Sussex Police on or about 31 August 2017. The evidence filed on behalf of Sussex Police from Ch. Supt Derrick is that she assessed his application and reached the conclusion to refuse accreditation 'in early September'. In the Sussex Police's Detailed Grounds of Defence, it is said that the decision to refuse accreditation was made on 7 September. There is no documentation in relation to the refusal of accreditation, such as envisaged in enumerated paragraphs 4 to 6 of the heading 'Refusal' in the NAS. As we have noted this document is appended to the NAT Policy and referred to in paragraph 1.1 of Sussex Police Operation Otter.
The only contemporaneous document showing how the decision was made by Sussex Police is contained in an email from Sgt Simon Kind to Ch. Supt Derrick at 12.56 on 5 September:
I've spoken to the GMP Accreditation Team re your queries.
The info we have is all the info they supply. We're to make a decision based on this, unless we want to conduct our own research.
There's no template for recording your decisions re refusals, and GMP don't need to see it. There's no right of appeal under the Referral Policy, and Labour are supportive of our decision as I understand it, so as long as we're not refusing Mr Corbyn a pass I don't think there's any need for recording detailed rationales.
There are, however, witness statements from Ch. Supt Derrick and the officer who was particularly concerned with the security aspects of the Conference, Sergeant Russell Phillips. Both statements explain how the decision to refuse accreditation to the claimant was made. Both are dated 28 February 2018, 5 months after the decision.
Grounds of challenge
The claimant advances five arguments in support of his challenge. These can be summarised as follows: (1) the decision to refuse accreditation was procedurally unfair; (2) it was unlawful since it was made on the basis of an unpublished policy; (3) both Sussex Police and the GMP applied the wrong test in making the decision; (4) the decision was an infraction of the claimant's rights under article 8 of the ECHR; and (5) the decision was in breach of the Data Protection Act 1998 ('DPA').
It is convenient to take grounds 1 and 2 together.
Ground 1 and 2: procedural unfairness and unpublished policy
Mr Bunting acknowledged the distinction between the present case and the many cases dealing with unpublished policy and minimum standards of procedural fairness, where potential issues in relation to fundamental freedoms are in issue. He also realistically accepted that the decision to refuse accreditation only directly affected the claimant for the 4 days of the Conference and did not inhibit him from attending fringe events or expressing his adverse reaction to the decision. However, he submitted that the decision to refuse accreditation to the claimant was important since the ability to attend annual conferences and take part in the Labour Party's decision-making process is important to members of the Labour Party. We would accept this point and the importance of the right to political engagement without reference to decision of the ECtHR in Christian Democratic People's Party v. Moldova (2007) 45 E.H.H.R 13 at  and  in what was an altogether different context. We also accept the importance to political journalists in attending party conferences.
He submitted that, as a bare minimum, a person affected by such a decision must have the opportunity to make representations to the decision-maker relating to it. The claimant had no such opportunity, nor was he given any information as to the basis on which his accreditation had been refused. The policies operated by the defendants excluded any opportunity for appeal or independent review, or apparently any reasons being given to an applicant. The defendants' contention that obligations of procedural fairness did not apply in the circumstances was wrong, as was their alternative argument, that it would be impractical to permit an applicant to make representations. He pointed out that only 0.1% of applications for the Conference were refused (14 out of 13731); that internal review mechanisms applied to other vetting decisions, for example staff employed at the Conference venue; and submitted that there was no good reason for that not to happen in the present case.
It is necessary at this point to consider an argument raised by both defendants: that such obligations as they had towards the claimant were closely circumscribed by the fact that the Party Conferences are private events in which the ultimate decision on whether or not to admit accreditation is ultimately for the Political Party. We do not accept that submission. The Labour Party was entirely in the hands of the police. It had none of the information available to them and was not given any reason for the refusal of accreditation. To suggest that the Labour Party might override such a decision in relation to the security of the Conference from such a source is unrealistic to a high degree.
We turn then to the policies and conduct of the two defendants.
Although the NAT was nominally within the GMP, it had a national character and a confined role. Its task was to gather and collate information that was available to all police forces in the country, and on the basis of that information to decide either to grant accreditation or refer applications to the host force. It had no power to refuse accreditation. In most cases accreditation was approved, applying the defined criteria which provided an ultimate test of whether the intelligence gave rise to concerns or doubts about a threat to the security of the Conference. In 2017, 46 applications were referred to Sussex Police on this basis and of these 14 were refused.
The operation of the NAT Policy had no material adverse effect on applicants for accreditation. Its sole and limited purpose was its use by the GMP as a sifting process to decide whether the application should be looked at more closely by local police forces in the light of that force's direct responsibility for safety and security of party conferences in its area, and in the light of its understanding of local conditions. It is plain from the evidence that neither the NAT nor the GMP refuse applications and that all refusals of accreditation are made by host police forces: in the present case, Sussex Police.
As such the NAT's decisions in relation to applications for accreditation (including the claimant's) were not such as to attract the common law obligation of procedural fairness. In R (Osborn) v. Parole Board  AC 115, the judgment of Lord Reed at - made clear that a virtue of procedurally fair decision-making is that it permits those affected to be heard and is likely to result in better decisions. The underlying premise is that an adverse decision is made. A decision to refer the application for more detailed consideration was not such a decision.
Many of the cases relied on by the claimant both in relation to procedural fairness and unpublished policies were qualitatively different to the present case, and do not assist in so far as the claim against the GMP is concerned. It would have been obvious to anyone applying for accreditation that information giving rise to concerns or doubts about threats to the security of the Conference and those who applied to attend would have to be assessed. At the initial stage the involvement of the GMP was confined to a preliminary assessment which provided a sift of 'posing a threat to the security' of the Conference (see paragraph 4 of the NAT Policy), applying a test of the relative seriousness of the issue that has come to light (see paragraph 11). Once that assessment was made, and the application was referred, the decision had to be made by the local force. In the present case it was made by Sussex Police, and that decision was passed on to GMP without reasons being given for the decision, at which point GMP's role was confined to passing on the refusal decision to the Labour Party.
The claimant is on stronger ground in his complaint about the lack of published policy and procedural unfairness against Sussex Police.
Mr Waters submitted that Sussex Police policy for processing applications for accreditation was to be found in two policies. The first was §1.1 of the Operation Otter - Accreditation Plan, which referred back to the National Accreditation Standard ('NAS'). The second was the National Decision-Making Policy ('NDM').
The difficulty with reliance on the NAS is that it does not contain any criteria to be applied when assessing accreditation. Furthermore, it appears to require that a written record be made of reasons for refusal, which may have to be provided (either in full or in a sanitised version) to an applicant for accreditation. The Operation Otter - Accreditation Plan was not only an unpublished policy, it appears to have been a policy whose terms were ignored in respects which are material to the claim.
The first reference to the decision being made by reference to the NDM was in Sussex Police's letter dated 19 December 2017, in its substantive response to the claimant's PAP letter of 22 September. The NDM is a process used by police forces across the country. It provides for five steps to be followed when making a decision: (i) gather information and intelligence, (ii) assess threat and risk, and develop a working strategy, (iii) consider powers and policy, (iv) identify options and contingencies, (v) take action and review what happened. It is not a secret policy: it is published by the College of Policing. However, the difficulty with reliance on the NDM is that, whatever its more general merits, it does not itself set out criteria for assessing referred applications for accreditation.
Mr Waters referred us to the witness statements of Ch. Supt Derrick and Sgt Phillips, in which they both describe the application of the 5-stage NDM to the assessment of the risk posed by the claimant to the security of the Conference. It is clear from those witness statements that the focus of their concern was the Byron Burger incident.
Sgt Phillips's evidence was as follows:
11. However, we formed the view from the intelligence, that Mr Segalov's protesting was now moving towards direct action. We had received intelligence that he was involved with others in releasing crickets and cockroaches in a burger restaurant in London. This suggested to us both an escalation in behaviour and we believed it posed a threat given the audience available in the secure area of the Labour Party conference.
12. In my view, even if Mr Segalov did not open the box of insects but was acting on the periphery, it was clear that he did not intervene or walk away.
Ch. Supt Derrick's evidence in relation to threat assessment (stage (ii) of the NDM) was to similar effect:
31. The intelligence suggested that his involvement in protests had been ongoing over a number of years. As such this of itself did not lead me to have any significant concerns.
32. However the last incident, which related to Mr Segalov going with other activists when they released cockroaches and locusts in a Byron restaurant, was a form of direct action which took no account of the potential risk to the safety of members of the public within the vicinity, and hence was of concern. Whether or not he attended for the purposes of journalism or because he agreed with the actions (which his subsequent article suggested that he did) in my view the fact remained that this incident suggested that he was willing to engage in or with those who took direct action which placed the public at risk.
33. The intelligence was unable to attribute the actual acts of releasing the bugs to any particular individual, but Mr Segalov was identified as being present. In my experience in dealing with instances such as this, there are a number of people who are involved in the planning and facilitation of an event. They may not be directly involved in the actual act but will support others in doing so by possibly being present, directing the activities or promoting the event to attract and motivate others to do similar acts.
34. It concerned me that Mr Segalov was capable and willing to be involved in some way with this level of direct action. It indicated that his behaviour was escalating, moving from peaceful protest through to a form of direct action that presented a risk to public health and safety. He had demonstrated a high disregard for wider public safety.
Even taken at face value, the assessment of threat does not appear to have been related to the risk to the security of the Labour Party Conference. In any event, the reasons for refusal were not recorded at the time and therefore no record was available (sanitised or otherwise) which might have been provided to the claimant and which might have supported the Sussex Police's case as to the decision-making process.
In our view Sussex Police has not demonstrated that it had an operative policy for dealing with applications for accreditation which were referred to it, nor any applicable criteria for assessing a particular risk to the security of the Conference.
Among the well-known observations of Lord Mustill in R v. Secretary of State for the Home Department, ex p. Doody  1 AC 532 are these at 560F-H:
(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification, or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will often require that he is informed of the gist of the case which he has to answer.
Ex p. Doody was a very different type of case, concerned with the review of the terms of sentences of life imprisonment for murder; and Lord Mustill's remarks about what is required of public bodies were qualified. Nevertheless, as envisaged under the heading 'Refusal' §6 in the NAS, someone in the claimant's position was entitled to know in general terms the reason for a refusal so that he could make representations as to why his application for accreditation should be allowed.
In view of (1) the small number of those referred, (2) the time that was available for dealing with the application, and (3) the lack of a right of appeal against the decision, we do not consider that a process, by which the claimant was provided with a gist of why his conduct was thought to give rise to a risk to the security of the Conference, would have placed an undue burden on Sussex Police, or would have been impractical or contrary to the public interest in the present case.
If he had been informed of the basis on which there were concerns that he might be involved in disrupting the Conference proceedings, the claimant would have had an opportunity to say that, since he was a supporter of the Labour party and a journalist, the particular concerns were unjustified. Whether that would have led to the approval of his accreditation is not a matter on which we need express a view. We are clear that he was deprived of a right to make representations about the decision that was to be made.
We would add three further points.
First, we accept that there may be circumstances in which the reasons for refusal of accreditation cannot be disclosed, for example, as Mr Bunting accepted, where a person is assessed as a terrorist risk. That consideration did not arise in the present case.
Second, we can see no good reason, and none was advanced, why the criteria for accreditation at Party Conferences should not be disclosed, as they were (ultimately) in the present case. Disclosure will often have the additional benefit of focussing attention on the coherent drafting of policies.
Third, Sgt Phillips appears to have made an assumption as to how the claimant should have reacted when he was present at the Byron Burger incident. The issue of how a journalist should react when faced, at close quarters, with criminal activity (if such it is) is not straightforward. It is sufficient to say that, in this case, we do not consider that the fact that the claimant 'did not intervene or walk away' (see Sgt Phillips's witness statement at §12) was a matter that could properly be taken into account to his discredit.
Ground 3: whether the defendants applied the wrong test
The grounds for judicial review contained a complaint that the decision to refuse accreditation carried with it the implication of involvement with criminality and damage to reputation. On this basis, and by analogy with cases concerning vetting decisions in an employment context, it was argued that a high threshold for refusing accreditation should have been applied.
Mr Bunting relied on the case of R (A) v. Chief Constable of C Constabulary  1 WLR 2776, in which Coulson J summarised the principles in relation to security vetting as follows: (1) the issue is essentially one of proportionality , (2) questions of credibility or reliability are relevant factors in the proportionality exercise , and (3) the analysis involved a two-stage process: (a) were there reasonable grounds for suspecting that the person is or has been involved in criminal activity, (b) if so, was it appropriate, in all the circumstances to refuse security clearance ?
He submitted that the satisfaction of an elevated threshold was particularly important since the claimant was a journalist and a high threshold was needed to reflect the important role of journalists, as 'the watchdog of the public', see In re S (a child) (Identification: Restriction on Publication)  1 AC 593, Lord Steyn at . Mr Bunting added that the defendants' procedures permitted arbitrary decision-making, which were not set out in a clear test for refusing accreditation but in a set of vague criteria. These included 'fixated behaviour' in paragraph 7 of the NAT Policy, which might be said to apply to journalists working on a particularly sensitive story. Such an approach was neither consonant with the common law, nor in accordance with law for the purposes of article 8 of the European Convention on Human Rights.
We have covered much of the argument already, particularly in so far as the argument relates to the GMP and the NAT Policy. Accordingly, we can confine ourselves to a few short observations.
First, there is plainly a danger in reading statements of principle across from one case as applicable to different factual and legal situations in other cases; although plainly, establishing facts before making decisions and issues of proportionality are principles of wide application. The aim of ensuring security at a party conference is very different from the aims of restricting access to police assets, as in R (A) v. Chief Constable of C Constabulary (see above). As Mr Berry submitted, dishonesty is relevant to the latter but not the former; and public order is relevant to the former but not the latter.
Second, different proportionality considerations arise in the context of a decision of whether someone is able to attend a 4-day event than those whose effect prevents an individual gaining any employment in the sector in which they work. In our view, there is no proper basis for applying an elevated threshold for refusing accreditation for the former. A rational and proportionate system of accreditation is founded on an assessment of risk to the safety of those present at a conference. In making such an assessment, the decision-maker is entitled to give considerable weight to safety considerations against the consequences of exclusion for the individual.
Third, although a free press is a fundamental safeguard of democracy it does not, of itself, justify an elevated threshold for refusing accreditation to a journalist; for example, if he or she were thought to pose a terrorist risk. Nevertheless, the fact that the applicant is an established journalist is likely to be an important factor in any assessment.
Ground 4: article 8 of the ECHR
Mr Bunting submitted that his argument on this ground yielded the same result as the argument on grounds 1 and 2, albeit by a different route. The relevant questions on this ground were: whether the claimant's article 8(1) rights were engaged and, if so, whether the interference was according to law and proportionate.
We accept that the claimant's right to a private life was engaged by the storage and retention of information about him and by the decision to refuse accreditation. The contrary was not argued by either defendant.
Mr Bunting submitted that the interference with the claimant's rights was not in accordance with the law, and that the application of the accreditation process to him was arbitrary and disproportionate, and such as to cause him reputational damage. Although he recognised that the disclosure of information by one police force to another was different to the many cases he relied on where there was disclosure by the police to third parties, he submitted that the safeguards in article 8(2) still applied in the present case.
In our judgment, the arguments advanced on ground 4 do not materially advance the claimant's case. The GMP was collating information that was already available to Sussex Police for the proper purpose of referring the application for accreditation to Sussex Police for further consideration. In the hands of Sussex Police, the protections to which the claimant was entitled would have been an established policy and an opportunity to respond to what the information appeared to reveal before a decision was made: see for example the observations of Lord Neuberger MR at , albeit in a singularly different context, in R (L) v. Commissioner of Police of the Metropolis  1 AC 410. We would also note that any damage to the claimant's reputation was necessarily confined since the Labour Party was not informed of the particular reasons for the refusal of accreditation.
Ground 5: the Data Protection Act 1998
Finally, the claimant submitted that, by processing his personal data, the defendants acted in breach of the data protection principles. 'Processing' is defined in s.1(1) of the Data Protection Act 1998 ('DPA') and includes obtaining or holding information as well as retrieval and use. Mr Bunting argued that the data included sensitive personal information, as to the claimant's political opinions, see s.2(b), and as to the alleged commission of a criminal offence, see s.2(g) of the DPA. The defendants' processing was in breach of the first data protection principle, since the data was not processed 'fairly' as the claimant had no input as to how the information was being processed nor any opportunity to challenge the data; and none of the conditions in schedule 3 applied. Alternatively, the processing of the information was either in breach of the third data protection principle, in that the processing of personal data was disproportionate bearing in mind the benefit that might be said to arise from such processing; or it was in breach of the fourth data protection principle in that the data that was being retained was neither accurate nor kept up to date.
Again, we do not think this way of putting the case advances the claimant's position. It is clear that the activities complained of involved the 'processing' of 'personal data' relating to the claimant, within the meaning of s.1 of the DPA. We would also accept that some of this was 'sensitive personal data' within s.2, because it related to the claimant's political opinions, and some of it implied some suspected involvement in criminality. It is common ground that each of the defendants was a data controller, owing the duty imposed by s.4(4) of the DPA, to process the claimant's personal data in accordance with the data protection principles. However, the claimant's case that the defendants contravened the first data protection principle adds nothing to his case under public law principles, and as Mr Bunting accepted, we are in no position to make findings that there were breaches of the third and/or fourth data protection principles.
The first data protection principle requires that data be processed (1) fairly, (2) lawfully, (3) in accordance with one of the conditions in Schedule 2 and, in the case of sensitive personal data, (4) in accordance with a Schedule 3 condition. But here, the reason for the defendants' processing was to avoid threats to the security of the Conference. This was processing, 'for … the … purposes [of] … the prevention … of crime' within the meaning of s.29(1)(a) of the DPA. It would be much too narrow a reading of these words to confine them to cases where data is processed for the purposes of an existing criminal investigation, as the claimant submits. The processing was therefore subject to a qualified exemption from the requirements we have numbered (1) and (2). This exemption has effect, 'to the extent to which the application of those [requirements] to the data would be likely to prejudice' the purpose of preventing crime. That is an assessment to be made on the facts of the individual case, although the impact of the individual decision on other similar cases is a relevant factor: R v. Secretary of State for the Home Dept., ex parte Lord  EWHC 2073 (Admin) [122-124]. To the extent that the defendants' conduct was contrary to the public law principles we have considered, it was also a contravention of the first data protection principle, but not otherwise.
Consideration of the Schedule 2 and 3 conditions yields the same answer. Processing of personal data is legitimate if it is 'necessary … (d) for the exercise of any other functions of a public nature exercised in the public interest by any person': DPA Schedule 2 paragraph 5(d). Processing of sensitive personal data is legitimate if it is 'necessary (the emphasis is ours) for the exercise of any functions conferred on a constable by any rule of law': Schedule 3 paragraph 10, and Data Protection (Processing of Sensitive Data) Order 2000, Schedule 1 paragraph 10. Plainly, the defendants were exercising public functions conferred on them by law; and were doing so in the public interest. What they did for the purpose of preventing crime or disorder was legitimate to the extent that it was 'necessary' for that purpose. Hence the emphasis we have added to the word 'necessary'. It is well-established that in this context the word bears the same meaning as in ECHR jurisprudence: it is not so weak as 'convenient', nor so strong as 'indispensable', and imports the notion of proportionality.
The claimant's arguments on the third and fourth data protection principle can be taken together because the points that lie at their heart are the claimant's allegations that the information relied on for the purposes of the decision-making was inaccurate (because it suggested he was guilty or to be suspected of a criminal offence) and/or incomplete. But such complaints raise issues of fact which are not apt for resolution in a claim for judicial review. A claimant alleging inaccuracy or irrelevance must plead and prove his case: see, for instance, NT1 v. Google LLC  EWHC 799 (QB), where the claim relied on the third and fourth principles. This is why DPA claims against private and public bodies are normally brought in private law under Part 7 of the CPR. A Part 7 claim would also seem to be the appropriate vehicle for any claim for compensation under s.13 of the DPA. Again, a fact-finding exercise would be required, and the judicial review procedure is not well adapted to that purpose.
We have been invited to give directions for the resolution of the outstanding issues: the alleged breaches of the third and fourth principles, and the claim for compensation under s.13 of the DPA. We have concluded that the better course is to leave it to the claimant to institute separate private law proceedings, if so advised. There do not seem to be any limitation issues. We recognise that compensation is available for non-material loss, and can reach no settled conclusions; but on the face of the statements of case and the evidence before us, we have some doubt that the resources that would be required to resolve these issues would be proportionate to the real value of what would be at stake. If any claim is pursued, it would seem to be a matter for the County Court.
For the reasons set out above, we have reached to following conclusions:
(1) the claimant's claim against the GMP fails;
We will receive written submissions on any further orders that should be made in the light of this judgment.
(2) the claimant's claim against Sussex Police succeeds to the extent set out above;
(3) the claimant is entitled to a declaration against Sussex Police that the process by which he was refused accreditation to the 2017 Labour Party Conference in Brighton was unlawful;
(4) that decision must accordingly be quashed;
Copyright Policy |
Donate to BAILII