The retention by the police of personal information on an individual stored on a police national database, or the issue of a warning notice against a person accused of harassment and its retention in police records, involved an interference with a person’s right to respect for his private and family life, within the meaning of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and such retention would breach the right unless justified.

The Court of Appeal so held when allowing the appeals of (i) the claimant, John Oldroyd Catt, from the decision of the Divisional Court of the Queen’s Bench Division (Gross LJ, Irwin J) on 30 May 2012 [2012] EWHC 1471 (Admin); [2012] HRLR 598 to dismiss his claim for judicial review of a decision of the defendants, Association of Chief Police Officers of England, Wales and Northern Ireland and the Commissioner of Police of the Metropolis , to record and retain references to him on the national database containing reports on activities of various protest groups, by way of an order that all such references be deleted, and (ii) the claimant, T, from the decision of Eady J in the Administrative Court on 27 April 2012 [2012] EWHC 1115 (Admin); [2012] 1 WLR 2978 to dismiss her claim for judicial review by way of an order that the defendant, the Commissioner of Police of the Metropolis, destroy their copy of a warning letter served on her following an allegation of harassment by her against a friend of her neighbour and that the police remove from their records all references to the decision to serve a warning letter on her. The Equality and Human Rights Commission, Liberty and the Secretary of State for the Home Department intervened in the first case. The Secretary of State also intervened in the second case.

The claimant in the first case had been an ardent and frequent protester over a long lifetime against what he saw as injustice, and he attended many public demonstrations organised by a group called “Smash EDO” which campaigned against the operations on the outskirts of Brighton of a commercial manufacturer of weapons, EDO Defence Systems. Some of the group’s supporters were prone to violence and criminal behaviour, but the claimant had not been convicted of criminal conduct of any kind in the demonstrations he had attended. The claimant in the second case had been served with a warning letter after a friend of her neighbour had alleged to the police that she had directed a single homophobic insult towards him. The letter warned that repetition of her behaviour could involve the commission of an offence. Shortly before the hearing in the Court of Appeal in January 2013 she was informed that after assessment of the retained information against her it had been decided that the record would be expunged.

MOORE-BICK LJ, giving the judgment of the court, considered several recent decisions of the European Court of Human Rights and domestic cases relating to interference with article 8 rights. The Divisional Court in R (C) v Comr of Police of the Metropolis [2012] 1 WLR 3007 had said that the European Court of Human Rights considered that retention of photographs by the police engaged article 8, and that following that court’s conclusion that retention of fingerprint evidence constituted an interference with the right to respect for private life, the same conclusion had to apply to the photographs of the claimant in C’s case taken after arrest on suspicion of assault, so as to require justification under article 8.2. In both the instant cases the police action had been undertaken in pursuance of a legitimate aim—the prevention of disorder or crime and the protection of the rights and freedoms of others. The real debate centred on legality and proportionality. The question of legality depended on an analysis of the rules of law, non-statutory guidance and published policy governing the actions of which complaint was made. The European Court of Human Rights had repeatedly emphasised that the question of proportionality was to be judged by reference to the facts of the particular case. In cases involving the collection, processing and retention of personal information by the state, the court had to pay careful attention to the nature of the information, the circumstances under which it could be obtained, the ways in which it could be processed and by whom, the period for which it could be retained and the arrangements for its destruction.

In the first case personal information relating to the claimant was held on the National Domestic Extremism Database maintained by the Public Order Intelligence Unit, under the supervision, originally, of the Association of Police Officers and now of the Commissioner of Police of the Metropolis. The majority of the information was from reports made by police officers attending demonstrations and protests by Smash EDO: the claimant was not the specific target of observations, rather he was referred to incidentally in the course of narrative descriptions. The information included his name, age, appearance and history of attending political demonstrations. Although the court agreed with the Divisional Court’s view that the claimant’s activity was of a public nature, and it was to be expected that the activities of Smash EDO would attract significant police presence and the compiling of reports for retention as part of routine intelligence gathering, the inclusion of data relating to him did involve interference with his right to respect for his private life requiring justification. The court did not doubt the importance to modern policing of detailed intelligence gathering and the need for caution before overriding the judgment of the police about what information was likely to assist them in their task. The systematic collection, processing and retention on a searchable database of personal information, even of a relatively routine kind, involved a significant interference with the right to respect for private life. The defendant had not shown that the value of the information was sufficient to justify its continued retention.

In the second case the copy of the letter served on the claimant was to be retained for seven years. Although receipt of the letter had caused the claimant distress its effect was not of a serious nature, and the matter could have remained private between her and the police but for the fact the complainant had been told by the police that they intended to serve the letter on the claimant, so that the matter had entered the public domain. The court was satisfied on the authorities that the letter and the police report under the Crime Reporting Information System (“CRIS”) contained information of a personal kind the processing and retention of which would involve interference with the right to respect for private life unless justified. The defendant’s current policy was to retain such letters and CRIS reports relating to single allegations of conduct such as in T’s case for a period of 12 years. In respect of the report, that was a consequence of a blanket policy which did not discriminate between serious offences, minor offences and conduct that did not amount to an offence at all. There was obvious justification for retaining a copy of a letter for a limited period; it might help to identify a course of conduct amounting to harassment, and might be useful in providing evidence that the suspect was aware of the consequence of his actions. Since harassment required a course of conduct, it was difficult to see how retention of the letter or the CRIS report for a period of more than a year or so could possibly assist in the prosecution of an offence. Although the court should be slow to interfere with the judgment of the police in such matters, retention of information of the instant kind for more than a matter of months had to be justified by evidence. Its continued retention for some two and a half years after the incident would have been unnecessary, disproportionate and unjustifiable given there were no reports of any further incidents.