13 March 2015


In R (on the application of Catt) v Commissioner of Police of the Metropolis and another and R (on the application of T) v Commissioner of Police of the Metropolis [2015] UKSC 9 the UK Supreme Court (Lord Neuberger, Lady Hale, Lord Mance, Lord Sumption and Lord Toulson) has considered proportionality in UK police retention of data.

The case is an appeal from Catt, R (on the application of) v The Association of Chief Police Officers of England, Wales and Northern Ireland & Ors [2013] EWCA Civ 192

The Court noted that the power of the Metropolitan Police to retain data is controlled by both the Data Protection Act 1998 - broadly equivalent to the Privacy Act 1988 (Cth) - and the Police Act 1995 through a mandatory Code of Practice and associated Guidance.

The Code of Practice limits the handling of police information to “police purposes”, limits the circumstances under which data can be shared between police forces, and requires that information originally recorded for police purposes must be reviewed for deletion at prescribed intervals. The Guidance indicates that the reviews are to ensure that -
  • there is a continuing policing purpose for holding the record, 
  • the record is accurate, up to date and not excessive, 
  • there is compliance with the Data Protection Act, and 
  • the assessment of the risk level presented by the data subject is correct
Those statutes and Code coexist with respect for the private sphere under  the European Convention on Human Rights Article 8.

The police databases feature information about Catt, apparently sufficiently vigorous at 91 to participate in political protests, including some with a group identified as Smash EDO (some of whose members commit violent offences as part of their activism). EDO is a military technology enterprise with products that include bomb racks and other components.

The 2013 judgment states -
This is the judgment of the court on these two appeals which raise similar questions relating to the powers of the police to collect and retain information of a personal nature relating to members of the public. The first concerns Mr. John Catt, who over a long lifetime has been an ardent and frequent protestor against what he sees as a variety of forms of injustice. During that time he has attended many public demonstrations, most recently those organised by a group calling itself "Smash EDO", which campaigns against the operations on the outskirts of Brighton of a commercial manufacturer of weapons, EDO Defence Systems. Some of the core supporters of Smash EDO are prone to violence and criminal behaviour, but it is accepted that Mr. Catt has not been convicted of criminal conduct of any kind in connection with any demonstrations that he has attended. He seeks an order requiring the police to remove all references to him from the national database which contains reports on the activities of various protest groups including Smash EDO.
The second appeal concerns a lady identified for the purposes of the proceedings as Ms T. She was served with a warning letter following an allegation made to the police by one of her neighbours' friends that she had directed a single homophobic insult towards him. The letter informed her that an allegation of harassment had been made against her and that a repetition of her behaviour could involve the commission of a criminal offence. She hotly denies the allegation and seeks an order that the police destroy their copy of the letter and remove from their records all references to the decision to serve a warning letter on her. (She has also made a claim for damages, but it received little attention either at the hearing below or on the appeal.) However, on 23rd January 2013 the respondent's solicitor wrote to Ms T's solicitor saying that in the course of preparing for the appeal there had been a fresh assessment of the need to retain the information in question and that it had been decided that the record could be expunged. It follows that Ms T has now in substance achieved all that she set out to achieve, but in view of the importance of the issues to which the appeal gives rise we were invited to hear argument and determine them in the usual way and agreed to do so.
nclude bomb racks, arming units, and electrical connectors for military aircraft weapon systems - See more at: http://smashedo.org.uk/whoarewe/what-is-edo#sthash.IkDF9b1t.dpuf
EDO’s products include bomb racks, arming units, and electrical connectors for military aircraft weapon systems - See more at: http://smashedo.org.uk/whoarewe/what-is-edo#sthash.IkDF9b1t.dpuf
EDO’s products include bomb racks, arming units, and electrical connectors for military aircraft weapon systems - See more at: http://smashedo.org.uk/whoarewe/what-is-edo#sthash.IkDF9b1t.dpuf
The police "overtly collect information" from Smash EDO demonstrations, with information being retained even in instances where a violent crime did not take place. Events are recorded in 'Information Reports' on a Domestic Extremism Database, with  some individuals being the subject of a 'nominal record' on that database. The Court noted that at one point there was a nominal record and a photograph for  Catt (deleted in separate reviews before the proceedings began). Information about  Catt - including his presence, date of birth and address,  - features in over one hundred Information Reports concerned with the activities of other people (including at protests independent of Smash EDO).

Catt contended that the Metropolitan Police’s policy in retaining the data on a searchable database is unlawful as contrary to his rights under Article 8 of the ECHR. He accepted that it was lawful for the police to make records of protests as they occurred.

The judgment also considered the appeal by Ms T. She accepted that it was lawful for the police to make records of incidents but, like Catt, contended retention of those records was contrary to rights under Article 8.

She had allegedly made a homophobic comment to a neighbour’s friend in 2010, reflected in a Police Crime Reporting Information System (CRIS) record and a  Prevention of Harassment Letter from the Met alerting her to liability for arrest and prosecution if she harassed  the friend. The Met retains an electronic copy of the letter for seven years, with the associated CRIS item being preserved for for 12 years.

Claims by Catt and T were heard jointly in the Court of Appeal, which allowed both appeals.

In the current judgment the Supreme Court restored the first instance judgment regarding Catt 4-1 (Lord Toulson in dissent). The  Court unanimously restores the first instance judgment regarding T, with Hale,  Toulson and Mance indicating that the policy was lawful; Sumption and Neuberger indicated that the policy was not originally lawful but became so in this case.

Lord Sumption explained at paras 3 through 5 that the state’s systematic collection and storage in retrievable form even of public information about an individual is clearly an interference with private life under Article 8(1). The crux of the appeals was therefore whether retention can be justified under Article 8(2). In particular is the retention
  •  in accordance with the law and 
  • proportionate to its objective of securing public safety or preventing of disorder and crime. 
The  requirement under Article 8(2) for “in accordance with the law” necessitates that the applicable rules not be so indefinite or broad as to permit interference with the right on an arbitrary or abusive basis. Application of the rules must be reasonably predictable. Retention of data in UK police information systemsis in accordance with the law. Sumption noted that there are inevitably some discretionary elements but the scope of discretionary judgment is limited and subject to judicial review, with future disclosure being bounded by  comprehensive restrictions.

Lord Sumption held that the interference with Catt’s private life was minor. He indicated that
  • the data was personal but not intimate or sensitive,
  • the primary facts recorded have always been in the public domain,  
  • it is known that the Police record the data
  • there is no stigma attached to inclusion of Catt's information as part of reports primarily directed to the activities of other people
  • the data is usable and disclosable only for police purposes and in response to requests made by Mr Catt himself under the Data Protection Act
  • the material is reviewed for deletion according to 'rational and proportionate criteria' in the publicly available Code of Conduct and Guidance [
  • the longer-term consequences of restricting the availability of this method of intelligence-gathering to the police would potentially be very serious
  • the labour required to expunge data relating to people such as Catt would be disproportionate [29-31]. 
Lady Hale added that it would have been disproportionate to keep a nominal record about Catt as he had not been and is unlikely to be involved in criminal activity, with the keeping of such records potentially having a chilling effect on the right to engage in peaceful public protest.

Lord Toulson's reasoning is likely to attract most attention among privacy advocates in Australia. He would have dismissed the appeal in the case of Catt, being unpersuaded by the evidence from the Met as to the necessity for long-term retention of data about someone about whom the Police had   concluded was not acting violently. Toulson noted in particular that data about Catt’s attendance at mainstream political protest events was retained, commenting that he did not see how this could be thought necessary and proportionate. The evidence did not support the suggestion that it would be overly burdensome for the Police to have to review information about individuals such as Catt, particularly as the Police already conduct regular reviews.

In discussing proportionality in relation to T both Hale and Toulson indicated that retention of information about previous harassment complaints serves a vital purpose, particularly in domestic abuse cases. It is not unlawful for the Met to adopt a standard practice of retaining such information for several years, provided that the policy is flexible enough to allow for deletion when retention no longer serves any useful policing purposes.

Lady Hale noted that the Information Commissioner - a counterpart of Australia's national Privacy Commissioner - could not have secured the withdrawal of the Prevention of Harassment Letter (presumed to be the basis of the proceedings. Lord Sumption stated that the Prevention of Harassment Letter serves a legitimate policing purpose. The standard period of retention by the Met was wholly disproportionate to the specific incident in this case. T’s rights under Article 8 had however not been violated, because the data was in fact retained for only 2.5 years, a period not disproportionate but “at the far end of the spectrum”. Sumption indicated that the dispute could have been more appropriately resolved by applying to the Information Commissioner.