Catt v Association of Chief Police Officers
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GROSS,Mr Justice Irwin |
| Judgment Date | 30 May 2012 |
| Neutral Citation | [2012] EWHC 1471 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/11969/2010 |
| Date | 30 May 2012 |
[2012] EWHC 1471 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Gross
and
Mr Justice Irwin
Case No: CO/11969/2010
Mr Tim Owen QC and Miss Alison Macdonald (instructed by Bhatt Murphy) for the Claimant
Mr Jeremy Johnson QC (instructed by Directorate of Legal Services, Metropolitan Police) for the Defendants
Hearing dates: 9 TH FEBRUARY 2012
INTRODUCTION
By way of Judicial Review, the Claimant ("Mr. Catt") challenges the Defendants' retention of data ("the data") relating to his attendance at various political protests on the National Domestic Extremism Database ("the Database"), maintained by the National Public Order Intelligence Unit ("NPOIU") under the command of the National Coordinator for Domestic Extremism ("NCDE").
As originally advanced, Mr. Catt's claim was put on two bases:
i) The retention of the data engaged and violated his rights under Art. 8 of the European Convention on Human Rights ("ECHR") and was neither a necessary nor proportionate response to the achievement of any legitimate aim.
ii) The retention of the data did not comply with the requirements of the Data Protection Act 1998 ("the DPA").
By whichever route, Mr. Catt seeks an order that, as he has not himself been engaged in criminality, any reference to him should be deleted from the allegedly unlawfully retained material.
Mr. Catt is now aged 87 and of good character. He has a long history of political protest, which need not be recounted here.
The data in issue is essentially comprised of records (or reports) made by police officers overtly policing demonstrations of a group known as "Smash EDO". Though at one stage Mr. Catt sought to contend that he had been targeted or placed under surveillance, it is plain that these records mention Mr. Catt incidentally in the course of lengthy narratives of what police officers observed at such demonstrations.
Brief mention needs to be made of the two Defendants (as they have now become, see below) and the relevant units and personnel under their control.
i) The First Defendant ("ACPO") is a private company comprising the most senior police officers in the 43 police forces in England, Wales and Northern Ireland. ACPO is not a police service but an association set up to support chief officers and government; inter alia, it coordinates strategic national police policies. The role of NCDE was originally created by an ACPO sub-committee having responsibility for police counter-terrorism ("CT") strategy. His role, as the acronym suggests, together with that of the units under his command, is to coordinate the UK police response to domestic extremism.
ii) The NPOIU was established to facilitate lawful protest but also to respond and prevent, reduce and disrupt public disorder and criminal activity associated with "domestic extremism" (see below) and single issue campaigning in England and Wales. As domestic extremists do not operate within police force boundaries, each force submits their intelligence to NPOIU, to facilitate the development of a national picture and the coordination of investigations.
iii) The term "domestic extremism" is not defined by law. However, as explained in the witness statement of Detective Chief Superintendent Tudway, at the material time the NCDE ("the Tudway statement"), it is a term generally used by the police and associated agencies "to describe the activity of individuals or groups who carry out criminal acts of direct action to further their protest campaign, outside the democratic process".
iv) At all material times, the NCDE and the NPOIU have been under the command or control of either ACPO or the Second Defendant ("the Commissioner" or "the Met" as appropriate). Though it will in due course be necessary to deal with one argument in this connection raised on Mr. Catt's behalf, to my mind, the history of the organisational transfers between ACPO and the Met is neither here nor there. At all events, on the material before the Court, both the NCDE and the NPOIU (apparently now subsumed within the National Domestic Extremism Unit, "the NDEU") have been transferred back to the Met. The Defendants have made it clear that the Commissioner accepts responsibility for the processing of all personal data concerning Mr. Catt by the NCDE and the units under his command.
By the conclusion of the hearing before this Court, with the considerable assistance of Mr. Owen QC for Mr. Catt and Mr. Johnson QC for the Defendants, to both of whom I was grateful, the issues had been clarified and significantly narrowed. In summary:
i) There was agreement that the Commissioner should be joined as the Second Defendant.
ii) Apart from an image retained for evidential purposes (and images of groups of protestors that happen to include Mr Catt) of which no complaint is made, no photograph of Mr. Catt is any longer retained by the Defendants.
iii) Although, in writing, the Defendants contended that disputes of this nature should be resolved in accordance with alternative statutory remedies rather than by way of a claim for Judicial Review, at the hearing they did not seek to oppose Mr. Catt proceeding with this claim. That said, Mr. Johnson QC underlined that the concession made by the Defendants was limited to the present proceedings and should not be taken as extending to any future proceedings.
iv) So far as concerns the original formulation of the claim pursuant to the DPA, Mr. Owen QC, accepts, rightly in my view, that if (1) Art. 8 is engaged but (2) any interference with Mr. Catt's Art. 8 rights is justified, then he cannot succeed under the DPA. Conversely, of course, if Mr. Catt succeeds under Art. 8.2, then he does not need the DPA. Accordingly, the argument under the DPA would only arise if we held (without more) that Art. 8 is not engaged at all – and said nothing as to justification under Art. 8.2. Realistically, Mr. Catt's prospects of success along that route are so remote that (wisely) neither counsel devoted any or significant time to it. Nor will I.
v) The Tudway statement properly indicates that there is further material held in respect of Mr. Catt, considered to be exempt from disclosure pursuant to s.29 of the DPA, on the ground that disclosure would prejudice the investigation or detection of crime. Accordingly, a "closed" version of the Tudway statement has been prepared. For completeness, we record that we have not seen or asked to see that version and were not requested by any party to do so. There has been no suggestion that we cannot adjudicate on the claim without seeing the "closed" materials.
The upshot is that the case is reduced to a consideration of the data, essentially comprised of police intelligence records or reports ("the reports"), in the context of Art. 8, giving rise to two principal issues:
i) Do the collation and retention of the reports engage Art.8.1 and, if yes, interfere with Mr. Catt's Art. 8.1 rights? ("Issue (I): Engagement and Interference")
ii) If so, is the interference with Mr. Catt's Art.8.1 rights justified under Art. 8.2? ("Issue (II): Justification")
Art. 8, ECHR provides as follows:
"Right to respect for private and family life
1. Everyone has the right to respect for his private…. life…..
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. "
THE FACTS
Although Issues (I) and (II) require separate consideration and should not be conflated, it is as well to begin with an overall outline of the facts.
(1) "Smash EDO": Smash EDO is a protest group which has carried on a long-running campaign, calling for the closure of EDO, a US owned arms company, carrying on a lawful business and with a factory in Brighton. Smash EDO stages regular protests. Although many people at Smash EDO protests do not commit criminal offences, disorder and criminality has been a feature of a number of the protests: over 136 offences have been recorded. On one occasion more than £300,000 damage was caused. Harassment of staff has been a feature of this campaign. As a result, EDO has spent in excess of £1 million in security measures. The Defendants' evidence, which I accept, is that Smash EDO's tactics and criminality have evolved from the animal rights movement. The Tudway statement says this:
" Until the recent student fee protests the Smash EDO national demonstrations were regarded as amongst the most violent in the UK…."
Against this background, the Smash EDO protests have attracted and, in my judgment, require, a substantial policing presence. Numerous arrests have been made. Police officers record what they see at the protests. The records are retained under conditions of confidentiality for intelligence purposes (see below).
(2) The data: It is convenient at this point to look a little more closely as to the nature of the data retained, relating to Mr. Catt. It is otherwise all too easy to lapse into generalities.
In response to Mr. Catt's (and his daughter's) "subject access requests", the Defendants disclosed 66 entries in respect of Mr. Catt, spanning the period March 2005 to October 2009 (and 38 entries in respect of Mr. Catt's...
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