1. The European Court of Human Rights’ decision in Catt represents an important statement of the law in relation to the right to protest when a protester has been labelled as a “domestic extremist” and it determines what is lawful in terms of the storage and retention of an individual’s data, when that data has been obtained by overt surveillance. Mr Catt has been through the mill to get there though: he lost in the High Court, won in the Court of Appeal, lost in the Supreme Court and won in the European Court in a chamber judgment.
The Background Facts
2. John Catt is now aged 94 and lives in Brighton. He has been active in the peace movement since 1948 and has been a regular attendee at public demonstrations. Since 2005 Mr Catt has participated in demonstrations organised by ‘Smash EDO’, whose object was to close down the activities in the United Kingdom of EDO MBM Technology Ltd, a United States owned company which manufactured weapons and weapon components at a factory in Brighton. Serious disorder and criminality were features of a number of Smash EDO protests and the protests attracted a substantial policing presence.
3. Mr Catt was arrested twice at demonstrations for obstructing the public highway but had never been convicted of any offence. In March 2010, Mr Catt made a subject access request to the police under section 7 of the Data Protection Act 1998 for information held about him. Sixty-six entries were disclosed which incidentally mentioned him, concerning incidents between March 2005 and October 2009. Those records were held on a police database known as the “Extremism Database”, the responsibility of the National Public Order Intelligence Unit of the police (NPOIU).
4. Most of the records related to demonstrations at the office of EDO, but thirteen entries related to other demonstrations, including those at a Trades Union Congress Conference and a Labour Party Conference, a pro-Gaza demonstration and at a demonstration against “New Labour”. Mr Catt asked the Association of Chief Police Officers (“ACPO”) to delete entries from nominal records and information reports which mentioned him. ACPO declined to do so, without giving reasons. On 17 November 2010, Mr Catt issued proceedings against ACPO for judicial review of the refusal to delete the data arguing that retention of his data was not “necessary” within the meaning of Article 8 § 2 of the Convention.
5. On 30 May 2012, the High Court held that Article 8 was not engaged in the case and that, even if it were, the interference was justified under Article 8 § 2. Mr Catt appealed.
6. The Court of Appeal unanimously allowed the appeal in a judgment of 14 March 2014, finding that the inclusion of Mr Catt’s personal data in the database constituted an interference with his Article 8 rights which was not justified. Art 8 was engaged as there was systematic collection, processing and retention on a searchable database of personal information. The information was of a routine kind, but retention nonetheless involved an interference with the right to respect for private life. Such retention can be justified by showing that it serves the public interest in a sufficiently important way, but in this case the respondent had not shown that the value of the information was sufficient to justify its continued retention.
7. The Supreme Court upheld the appeal in a judgment dated 4 March 2015 by a majority of four justices to one, Lord Toulson dissenting. All five justices agreed that Article 8 was engaged and that retention of the data amounted to an interference with Mr Catt’s rights under Article 8. The majority concluded that the interference was in accordance with the law. Any person who thought that the police held personal information about him/her could seek access to it under section 7 of the DPA, if s/he objected to its retention or use and could bring the matter before the Information Commissioner. Lord Sumption, giving the lead judgment, said the invasion of privacy involved in the retention of information of this kind was ‘minor’. Retention of the personal data of someone who has a clean record and for whom violent criminality must be a very remote prospect can be justified for any of three reasons: (1) to enable the police to make a more informed assessment of risks and threats to public order; (2) to investigate criminal offences where there have been any, and to identify potential witnesses and victims; (3) to study the leadership, organisation, tactics and methods of protest groups which have been persistently associated with violence. In conclusion, Lord Sumption was of the view that sufficient safeguards existed to ensure that personal information was not retained for longer than required for the purpose of maintaining public order and preventing or detecting crime, and that disclosure to third parties was properly restricted.
8. Lord Toulson, dissenting, considered that retention of the data was disproportionate and the Defendant did not explain why it was thought necessary and proportionate to keep details of Mr Catt’s attendance at other political protest events such as those at the Labour Party and TUC Conferences. Lord Toulson could not see what value the police had identified by keeping indefinitely a record of Mr Catt’s attendances at events where he had done no more than exercise his democratic right of peaceful protest.
The decision of the European Court
9. The ECtHR said it had concerns about the ambiguity of the legal basis for the collection of Mr Catt’s personal data and the fact that the data could potentially be retained on an indefinite basis. The ECtHR considered that the variety of definitions of the term ‘domestic extremism’ gave rise to ‘significant ambiguity over the criteria being used by the police to govern the collection of the data. The Court expressed concern at the lack of a clear and coherent legal basis for the collection and storage of the data. The Court noted the loosely defined notion of ‘domestic extremism’ and the fact that Mr Catt’s data could potentially be retained indefinitely. However, the court acknowledged that the data would not be disclosed to third parties and the applicant had the possibility to apply for deletion of his data – though this safeguard was inadequate in the circumstances.
10. The Court went on to find that personal data revealing political opinion falls among the special categories of sensitive data attracting a heightened level of protection. As to whether there was a pressing social need to collect the applicant’s personal data, the court accepted that the police had an obvious role to monitor protests where the activities of the group were known to be violent and potentially criminal; the data was overtly obtained. As to Mr Catt’s data in particular concerning peaceful protest it had been shown neither that its retention was absolutely necessary nor that deletion of the data would be over-burdensome.
11. The decision of the Supreme Court judgment appeared to grant extensive discretion to the police in the operation of police databases in the collection of intelligence related to ‘domestic extremism’ or other protest activity. It had been seen as giving judicial approval for the mass surveillance of UK political activism.
12. The ECtHR judgment clarifies that the legal framework provided by the Data Protection Act 1998 with the accompanying Guidance (which the Supreme Court considered was sufficient to meet the requirements of being in accordance with the law) was not adequate to protect the citizen.
13. For political activists and NGOs campaigning against unwarranted data retention and surveillance, the Catt case will be seen as a resounding victory. For the police and ACPO it is the cue for a review of their systems for retention and deletion of records where there is no connection between the individual and any criminal activity.