Earlier this month Robin Hopkins blogged on a recent admin court judgment applying Article 8 to the police’s act of retaining data on a protestor (see his post on the Catt case here). This week the Information Tribunal handed down a judgment concerning another aspect of police surveillance, namely the automatic number-plate recognition (ANPR) system, which is now in widespread use across Great Britain. In Mathieson v IC & Devon & Cornwall Constabulary (EA/2010/0174), Mr Mathieson, a Guardian journalist, requested disclosure from the Constabulary of the location of all the ANPR cameras within the area of the Devon & Cornwall Constabulary. The Constabulary refused disclosure on an application of ss. 24 (national security) and 31 (prevention of crime) FOIA. The Commissioner upheld the Constabulary’s refusal notice on the basis that the location information was exempt from disclosure under s. 31. Mr Mathieson appealed against the Commissioner’s decision.

At the hearing before the Tribunal, it was conceded on behalf of Mr Mathieson that, on all the evidence, both ss. 24 and 31 were engaged in respect of the location information. The key issue which the Tribunal was called upon to determine was whether the public interest balance nonetheless weighed in favour of disclosure. In summary, the Tribunal held that the use of the ANPR system by the Constabulary inevitably gave rise to serious civil liberty concerns. This was not least because the system indiscriminately recorded the number-plate of every single vehicle passing before the individual cameras, irrespective of whether the vehicles may be being used as part of a criminal enterprise or as a result of individuals innocently and lawfully going about their day to day business. However, it nonetheless went on to find that the public interest balance weighed firmly in favour of maintaining the exemptions. This was because, on all the available evidence, it was clear that revealing the location of the individual cameras within Devon and Cornwall would have enhanced the ability of criminals, including terrorists, effectively to bypass the ANPR system, thus helping them to evade detection and prosecution.

In the course of its decision, the Tribunal held that: ‘there is always likely to be a substantial public interest in maintaining the exemptions we are concerned with, in particular that provided by section 24 which relates to national security’ (§8). It also held that, whilst disclosure of the location information may only have tipped the balance slightly in favour of the criminals, not least because they may in any event have been able to identify the cameras through their own efforts, that was sufficient to result in a situation where the location information must be treated as exempt (§10).

Notably, a separate question was raised during the course of the appeal as to whether the information captured by the ANPR system amounted to ‘personal data’ in the hands of the Constabulary. Mr Mathieson and the Commissioner submitted that it did. The Constabulary disputed this conclusion. Ultimately, the Tribunal took the view that it did not need to resolve this dispute for the purposes of determining the appeal.

I am limited in what I can say about this case, having appeared on behalf of the Commissioner. However, it is clear from the judgment that there is an abiding issue as to the legality of the ANPR system and, in particular, whether it unjustifiably interferes with the right to privacy under Article 8 and/or with the data subject’s rights under the DPA. Whilst this is a nettle which the Tribunal itself considered it did not need to grasp in the circumstances of the Mathieson appeal, there can be little doubt but that it is a nettle which will be subject to judicial examination in the future.

Anya Proops