Retention of data: Catt v The United Kingdom 2019, European Court of Human Rights

Executive summary

The court determined that whilst the police were justified in collecting data they were not justified in retaining Mr Catt’s data in this case and in such circumstances the retention amounted to a violation of his Article 8 rights.

Background

The applicant, Mr Catt, is a 94-year-old male who has been active in the peace movement since 1948 and has been a regular attender at public demonstrations since then.

In 2005 he began participating in demonstrations organised by Smash EDO. Serious criminality and disorder were often features of these demonstrations. The applicant was twice arrested at these demonstrations for obstructing the public highway but never convicted of any offence.

In March 2010, Mr Catt made an access request under Section 7 of the Data Protection Act 1998. The 66 entries disclosed pursuant to that request consisted of documents relating to incidents between March 2005 and October 2009.

Those entries were on a database termed “Extremism database”, under the responsibility of the now-defunct National Public Order Intelligence Unit, ‘NPOIU’.

Most of the entries related to his attendance at Smash EDO demonstrations but 13 entries related to other demonstrations such as the TUC conference, Labour Party conference and a pro-Gaza demonstration.

In most entries, all that was recorded about Mr Catt were his presence, date of birth and address. Some included his description and a photograph taken at a demonstration in September 2007. The photograph subsequently came up for automatic review in July 2010 and was deleted.

In August 2010, the applicant asked ACPO to delete entries from his nominal records and information reports. ACPO refused and Mr Catt issued proceedings for judicial review. As a result of a general review undertaken in 2012, a number of the crime reports were then deleted leaving only six entries in dispute.

Administrative Court

The Administrative Court dismissed the claim. Article 8 was not engaged and even if it were, any interference was justified under Article 8 (2).

Court of Appeal

The Court of Appeal disagreed. The inclusion of the applicant’s details in a database constituted an interference with his Article 8 rights, which was not justified.

The court did not doubt the importance in modern policing of proper intelligence gathering and understood that a better understanding of how Smash EDO was organised would help to forecast future protests and anticipate numbers and tactics. However, “it [was] not easy to understand how the information currently held on Mr Catt can provide assistance in relation to any of those matters.”

The court found the retention of such data was disproportionate to the legitimate purpose of proper policing and considered the retained information had been collected indiscriminately and held no value for policing purposes.

Supreme Court

The Supreme Court found that Article 8 applied and that retention amounted to an interference with the applicant’s Article 8 rights.

However, the interference was in accordance with the law and minor. In particular, the information was not intimate or sensitive, did not carry any stigma or suspicion of guilt and the primary facts were already in the public domain.

Lord Sumption concluded that “the proper performance of [proper police] functions is important not only in order to assist the prevention and detection of crime associated with public demonstrations, but to enable the great majority of public demonstrations which are peaceful and lawful to take place without incident and without an overbearing police presence.”

Lord Sumption was of the view that sufficient safeguards existed to ensure the personal information was not retained for longer than required for the purposes of maintaining public order and preventing disorder or crime and that disclosure to third parties was properly restricted.

Dissenting, although Lord Toulson agreed that collection and retention of data were in accordance with the law, he was not satisfied that the value of the information relating to Mr Catt was sufficient to justify its continued retention.

European Court of Human Rights

The court determined that the collection and retention of data amounted to an interference with the applicant’s Article 8 rights. The court accepted that the creation and maintenance of a database was for a legitimate aim — the prevention of disorder or crime and safeguarding the rights and freedoms of others.

However, the court found that Mr Catt’s data was sensitive data as it revealed political opinion which attracted a heightened level of protection and this had not been taken into account by the police.

Further, there was no pressing need for retention. In particular, the court noted that both the police and the domestic courts had affirmed that Mr Catt was not considered a danger to anyone.

The court accepted that there may be a need to retain data for a period after collection but was critical of the current procedures for retention which did not prescribe a specific time limit for retention, which meant that data could be held indefinitely.

There was a six-year data review but no evidence that the data was reviewed in any meaningful way.

Further, whilst the applicant could and had requested disclosure and deletion of his data, that safeguard was of limited impact given the refusal to delete or give any explanation for continued retention.

In conclusion, the court considered that the retention of Mr Catt’s data was not shown to be absolutely necessary or for any particular purpose or inquiry — as a result, there had been a violation of his Article 8 rights.

Comment

This decision demonstrates the importance of monitoring and reviewing intelligence on a regular basis.

Procedures and checks must be in place to ensure that data held is held for no longer than is necessary and any continued retention of data must be reasoned, necessary, proportionate and for a legitimate aim. A review of current national retention policies would appear to be called for.