R (on the application of Catt) v Metropolitan Police Commissioner; R (on the application of T) v Metropolitan Police Commissioner
| Jurisdiction | England & Wales |
| Judge | Lord Toulson,Lady Hale,Lord Neuberger,Lord Mance,Lord Sumption |
| Judgment Date | 04 March 2015 |
| Neutral Citation | [2015] UKSC 9 |
| Date | 04 March 2015 |
| Court | Supreme Court |
[2015] UKSC 9
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Sumption
Lord Toulson
Appellants
Jeremy Johnson QC
Georgina Wolfe
(Instructed by Metropolitan Police Directorate of Legal Services)
Respondent (1) Catt
Tim Owen QC
Raj Desai
Alison Macdonald
(Instructed by Bhatt Murphy Solicitors)
Respondent (2) T
Paul Bowen QC
Ruth Brander
Zarah Al-Rikabi
(Instructed by Bindmans LLP)
Intervener (EHRC)
Alex Bailin QC
Dan Squires
(Instructed by Equality & Human Rights Commission)
Intervener (SSHD)
Jason Coppel QC
Robin Hopkins
(Instructed by Treasury Solicitors)
Intervener (The Network for Police Monitoring)
Nathalie Lieven QC
Jude Bunting (Instructed by Leigh Day & Co (written submissions only))
Heard on 2, 3 and 4 December 2014
( with whom Lord Neuberger agrees)
This appeal is concerned with the systematic collection and retention by police authorities of electronic data about individuals. The issue in both cases is whether the practice of the police governing retention is lawful, as the appellant Police Commissioner contends, or contrary to article 8 of the European Convention on Human Rights, as the respondents say. A particular feature of the data in question is that they consist entirely of records made of acts of the individuals in question which took place in public or in the common spaces of a block of flats to which other tenants had access. The information has not been obtained by any intrusive technique such as bugging or DNA sampling. In the first appeal, Mr John Catt objects to the retention on a police database of records of his participation in political demonstrations going back to 2005. In the second appeal, Ms T objects to the retention on a police database of a record of a minor altercation with a neighbour which the latter reported to the police. Each of them accepts that it was lawful for the police to make a record of the events in question as they occurred, but contends that the police interfered with their rights under article 8 of the European Convention on Human Rights by thereafter retaining the information on a searchable database. I shall have to say more about the facts of these cases in due course. Both applications failed at first instance. In the Court of Appeal, they were heard together, and both appeals were allowed: [2013] 1 WLR 3305.
Historically, one of the main limitations on the power of the state was its lack of information and its difficulty in accessing efficiently even the information it had. The rapid expansion over the past century of man's technical capacity for recording, preserving and collating information has transformed many aspects of our lives. One of its more significant consequences has been to shift the balance between individual autonomy and public power decisively in favour of the latter. In a famous article in the Harvard Law Review for 1890 ("The Right to Privacy", 4 Harvard LR 193), Louis Brandeis and Samuel Warren drew attention to the potential for "recent inventions and business methods" to undermine the autonomy of individuals, and made the case for the legal protection not just of privacy in its traditional sense but what they called "the more general right of the individual to be let alone". Brandeis and Warren were thinking mainly of photography and archiving techniques. In an age of relatively minimal government they saw the main threat as coming from business organisations and the press rather than the state. Their warning has proved remarkably prescient and of much wider application than they realised. Yet although their argument was based mainly on English authority, the concept of a legal right of privacy whether broadly or narrowly defined fell on stony ground in England. Its reception here has been relatively recent and almost entirely due to the incorporation into domestic law of the European Convention on Human Rights.
Article 8 of the Convention confers on everyone a qualified right to "respect for his private and family life, his home and his correspondence". It has proved to be the most elastic of the rights protected by the Convention and, as Lord Rodger pointed out in R (Countryside Alliance) v Attorney General [2008] AC 719, para 92, has for many years extended well beyond the protection of privacy in its narrower sense. A long series of individual decisions, each in itself of limited scope, culminated in the following statement of the European Court of Human Rights in Pretty v United Kingdom (2002) 35 EHRR 1, para 61:
"As the court has had previous occasion to remark, the concept of 'private life' is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person …. It can sometimes embrace aspects of an individual's physical and social identity …. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by article 8 …. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world …. Though no previous case has established as such any right to self-determination as being contained in article 8 of the Convention, the court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees."
In common with other jurisdictions, including the European Court of Human Rights and the courts of the United States, Canada and New Zealand, the courts of the United Kingdom have adopted as the test for what constitutes "private life" whether there was a reasonable expectation of privacy in the relevant respect: see Campbell v MGN Ltd [2004] 2 AC 457, para 21 (Lord Nicholls) and Kinloch v HM Advocate [2013] 2 AC 93, paras 19–21 (Lord Hope). In one sense this test might be thought to be circular. It begs the question what is the "privacy" which may be the subject of a reasonable expectation. Given the expanded concept of private life in the jurisprudence of the Convention, the test cannot be limited to cases where a person can be said to have a reasonable expectation about the privacy of his home or personal communications. It must extend to every occasion on which a person has a reasonable expectation that there will be no interference with the broader right of personal autonomy recognised in the case law of the Strasbourg court. This is consistent with the recognition that there may be some matters about which there is a reasonable expectation of privacy, notwithstanding that they occur in public and are patent to all the world. In this context mere observation cannot, save perhaps in extreme circumstances, engage article 8, but the systematic retention of information may do.
In Rotaru v Romania (2000) 8 BHRC 449, para 43, the Grand Chamber held that "public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities." Cf Segerstedt–Wiberg v Sweden (2006) 44 EHRR 14, para 72. In PG v United Kingdom (2001) 46 EHRR 1272, the court found a violation of article 8 by covertly recording the applicants' voices at a police station in the presence of police officers, for the purposes of future voice recognition. At para 57 the court said:
"There are a number of elements relevant to a consideration of whether a person's private life is concerned by measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor. A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example, a security guard viewing through closed-circuit television) is of a similar character. Private-life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain. It is for this reason that files gathered by security services on a particular individual fall within the scope of article 8, even where the information has not been gathered by any intrusive or covert method."
In Bouchacourt v France, 17 December 2009, Application No 5335/06, a case concerning the inclusion of persons in a register of convicted sex offenders, it was held at para 57 that the "mere storing by a public authority of data relating to the private life of an individual" engaged article 8 of the Convention so as to require to be justified. In S v United Kingdom (2008) 48 EHRR 1169 the Strasbourg court held that article 8 was engaged by the mere storage of cellular samples, DNA profiles and fingerprints: see paras 77, 86. This was because of the sensitivity and amount of the personal information in question, and the uses to which it might "conceivably" be put: paras 70–86. The same principle has been recognised and applied in English case law. As Lord Hope of Craighead DPSC observed in R (L) v Comr of Police of the Metropolis (Secretary of State for the Home Department intervening) [2010] 1 AC 410, para 27, even public information such as a criminal conviction may become part of a person's private life once it recedes into the past and other people are likely to have forgotten about it.
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