The Queen (on the application of John Oldroyd Catt) (Claimant/Appellant) v The Association of Chief Police Officers of England, Wales and Northern Ireland and Another Equality and Human Rights Commission and Others (Interveners)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Moore-Bick |
| Judgment Date | 14 March 2013 |
| Neutral Citation | [2012] EWCA Civ 1610,[2013] EWCA Civ 192 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2012/1747 |
| Date | 14 March 2013 |
[2012] EWCA Civ 1610
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(LORD JUSTICE GROSS and MR JUSTICE IRWIN)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
Case No: C1/2012/1747
Mr Tim Owen QC (instructed by Messrs Bhatt Murphy) appeared on behalf of the Appellant.
The Respondents did not appear and were not represented.
This is a renewed application for permission to appeal, permission having been refused on the papers by Mummery LJ. The proposed appeal is against an order of the Divisional Court comprising Gross LJ and Irwin J who rejected Mr Catt's application for judicial review.
Mr Catt's complaint is principally about the retention of data and images captured by the police in the course of political protests, the details of which I need not repeat today. Mr Catt's case is founded on Article 8 of the ECHR. The Divisional Court held that Article 8 was not engaged but that even if it had been the steps taken by the police were justified pursuant to Article 8(2). In refusing permission to appeal Mummery LJ agreed with the approach of the Divisional Court.
As a freestanding document the judgments of the Divisional Court are impressive. However, I have come to the conclusion that I ought to grant permission to appeal for two reasons. The first is that I think there is some force in the submission on behalf of Mr Catt that the Divisional Court concentrated on reasonable expectation of privacy without giving equivalent attention to the complaint about retention subsequent to the occasions when data and images were captured.
Secondly, but connected to that, Mr Owen now wishes to rely on the case of RMC & FJ [2012] EWHC 1681 (Admin). That was a case decided by a differently constituted Divisional Court shortly after Mr Catt's case had been decided. Particularly on the retention issue it contains passages which are arguably supportive of Mr Catt's case. It seems to me to be arguable that the approach in RMC & FJ is not easy to reconcile with the approach taken by the Divisional Court in the present case.
The Civil Appeals Office have also drawn to my attention to, and I have mentioned it to Mr Owen, another case, namely T v Metropolitan Police Service (Court of Appeal reference number C1/2012/1747) in which permission has been granted by Sir Stephen Sedley and on which there will be a substantive appeal hearing on 29 and 30 January. Much of the dispute in T is not strictly connected to the issue in the present case. T concerns the issue of harassment warning notices and the primary complaint is about the lack of opportunity given to the recipient of such a notice to dispute the allegations upon which the notice is based.
However, permission in that case has been granted in respect of all the grounds and ground 2 according to the skeleton argument of the appellant is concerned with the retention of the warning notice and other information for between seven and twelve years. The skeleton argument in T relies heavily on the decision of the Divisional Court in RMC & FJ.
For all these reasons it seems to me that it cannot now be said that Mr Catt has no prospect of success. In granting him permission to appeal I shall direct that the appeal be heard by the same constitution as hears the appeal of T at the end of January. The addition of Mr Catt's case will add a day to the work of that constitution. I shall direct that the presider in that constitution considers the papers two weeks ahead of the hearing so as to decide whether T' s case and Mr Catt's case are heard together or successively. If together, the total time estimate will go up to three days. If separately, Mr Catt's case, as I have indicated, will add a day to the time allocated for the case of T. The constitution will be three judges in a manner replicating whatever order was made by the person who granted permission in T.
Order: Application granted
[2013] EWCA Civ 192
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(Lord Justice Gross and Mr. Justice Irwin)
Royal Courts of Justice
Strand, London, WC2A 2LL
(Mr. Justice Eady)
THE MASTER OF THE ROLLS Lord Justice Moore-Bick
and
Lord Justice McCombe
Case No: C1/2012/1747
Case No: C1/2012/1355
and
And
and
Mr. Tim Owen Q.C. and Ms Alison MacDonald (instructed by Bhatt Murphy) for Mr. Catt
Mr. Paul Bowen Q.C. and Ms Ruth Brander (instructed by Bindmans LLP) for Ms T
Mr. Martin Westgate Q.C. and Mr. Conor McCarthy for Liberty
Ms Elizabeth Prochaska for the Equality and Human Rights Commission
Mr. Jason Coppel (instructed by the Treasury Solicitor) for the Secretary of State
Mr. Jeremy Johnson Q.C. and Ms Georgina Wolfe (instructed by Metropolitan Police Directorate of Legal Services) for the Association of Chief Police Officers of England, Wales and Northern Ireland and the Commissioner of Police of the Metropolis
Hearing dates: 29 th & 30 th January 2013
This is the judgment of the court on these two appeals which raise similar questions relating to the powers of the police to collect and retain information of a personal nature relating to members of the public. The first concerns Mr. John Catt, who over a long lifetime has been an ardent and frequent protestor against what he sees as a variety of forms of injustice. During that time he has attended many public demonstrations, most recently those organised by a group calling itself "Smash EDO", which campaigns against the operations on the outskirts of Brighton of a commercial manufacturer of weapons, EDO Defence Systems. Some of the core supporters of Smash EDO are prone to violence and criminal behaviour, but it is accepted that Mr. Catt has not been convicted of criminal conduct of any kind in connection with any demonstrations that he has attended. He seeks an order requiring the police to remove all references to him from the national database which contains reports on the activities of various protest groups including Smash EDO.
The second appeal concerns a lady identified for the purposes of the proceedings as Ms T. She was served with a warning letter following an allegation made to the police by one of her neighbours' friends that she had directed a single homophobic insult towards him. The letter informed her that an allegation of harassment had been made against her and that a repetition of her behaviour could involve the commission of a criminal offence. She hotly denies the allegation and seeks an order that the police destroy their copy of the letter and remove from their records all references to the decision to serve a warning letter on her. (She has also made a claim for damages, but it received little attention either at the hearing below or on the appeal.) However, on 23 rd January 2013 the respondent's solicitor wrote to Ms T's solicitor saying that in the course of preparing for the appeal there had been a fresh assessment of the need to retain the information in question and that it had been decided that the record could be expunged. It follows that Ms T has now in substance achieved all that she set out to achieve, but in view of the importance of the issues to which the appeal gives rise we were invited to hear argument and determine them in the usual way and agreed to do so.
In support of their claims the appellants rely principally on section 6 of the Human Rights Act 1998 and article 8 of the European Convention on Human Rights, which 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 [or] public safety … for the prevention of disorder or crime, … or for the protection of the rights and freedoms of others."
Both appellants say that the material held in the police records is of a personal and private nature and that its retention is unlawful because it involves an interference with their right under Article 8(1) to respect for their private lives which cannot be justified. Both appellants brought proceedings for judicial review, but their claims failed. In the case of Mr. Catt the Divisional Court (Gross L.J. and Irwin J.) held that the information held by the police was of a public rather than a private nature, having been obtained from observations made at public demonstrations which he attended, and that accordingly there could be no infringement of his rights under article 8(1). Irwin J.,...
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