The Catt and T cases are both concerned with this important question: to what extent may the police lawfully retain records relating to individuals who have not in fact been arrested or charged in connection with any criminal offence. The Supreme Court has now had its say on this question – see the judgment here.
The background to the appeal is very helpfully set out in this earlier post. In short, Mr Catt (C) is a peaceful protestor who participated in an anti-arms trade protest conducted by a group called Smash-EDO. Smash-EDO is associated with violent crime. The police overtly recorded information about individuals attending Smash EDO demonstrations, including C. The police went on to retain information about C, including his name, address and information confirming his presence at a particular protest. The data was stored on the police’s Domestic Extremism Database. T is an individual who is alleged to have made a homophobic comment to a neighbour’s friend. The police sent her a ‘Prevention of Harassment’ letter warning her that she could be liable to arrest and prosecution should she commit any act amounting to harassment. The letter was originally retained on the police’s files in accordance with its policy that such correspondence should be retained for 7 years. However, in point of fact, the letter sent to T was destroyed after only two and half years.
The High Court dismissed claims made by C and T that the police’s act of retaining their data constituted a breach of their Article 8 rights. The Court of Appeal allowed the claimants’ appeal, reversing the High Court’s judgment. Now the Court of Appeal’s judgment has itself been reversed by the Supreme Court which, in summary, held that whilst retention of the data interfered with the claimants’ Article 8 rights, the retention was justified under Article 8(2). The core question which the Supreme Court had to address was the proportionality of the retention, particularly having regard to the fact that neither claimant had actually been arrested or charged with any offence.
Mr Catt’s case – The judgment in C’s case was a majority judgment, with Lord Toulson dissenting. In terms of the majority (Lords Sumption, Mance and Neuberger and Lady Hale), it is clear that the judges were of the view that the retention of C’s data was not disproportionate because:
- the level of intrusion with C’s privacy rights was minimal, particularly given that:
- the information in question is not intimate or sensitive;
- it related to C’s activities in a public forum – the recorded facts were in that sense in the public domain;
- there are tight constraints on the uses to which the data may be put (essentially they may only be used for police purposes and are subject to a strict review/deletion policy
- moreover, it would require disproportionate effort for the police to have to weed out this type of record from its other records.
- by way of contrast, the benefits to be obtained from retaining the data were potentially substantial and included enabling the police to develop a detailed intelligence picture of organisations prepared to engage in violent crime
Lord Toulson took a different view of the proportionality issues. In essence, he concluded that the information in question was unlikely to add much value in terms of meeting policing objectives and, further, that the weeding exercise would not be unduly onerous, particularly given that the police regularly had to undertake such weeding exercises in any event.
T’s case – In T’s case, the majority (Lady Hale, Lord Toulson and Lord Mance) were of the view that the retention policy in issue was lawful. Lady Hale and Lord Toulson both made the point that retention of such information over an extended period of time was important, particularly in terms of dealing effectively with domestic abuse cases. By way of contrast, Lord Sumption was of the view that such a lengthy retention period was disproportionate, particularly given the trivial nature of the incident in question. However, on the facts relating to T’s case, he held that it was not disproportionate for the police to have retained the letter for the relatively short period of 2.5 years. Thus, he concurred with the conclusion that the appeal should be allowed.
A key point emerging from the judgment, and indeed the litigation history of these appeals, is that there is no perfect science when it comes to applying the proportionality principle. Instead, the exercise of assessing proportionality is inherently impressionistic, as is illustrated by the wide divergence of views expressed by the judges in the High Court, Court of Appeal and the Supreme Court. It is understood that the claimants will now seek to have the case referred to the European Court of Human Rights. So we may yet see another reversal of fortunes in this interesting and important litigation.
Jason Coppel QC and Robin Hopkins appeared for the Secretary of State for the Home Department, who intervened in the appeal.
Anya Proops