By a two to one majority, the Court of Appeal decided yesterday, in Wood v Commissioner for Police of the Metropolis [2009] EWCA Civ 414, that the Metropolitan Police had acted unlawfully when it retained photographs which it had taken of an anti-arms trade campaigner as he was leaving the AGM of Reed Elsevier Plc (“REP”). This is an important judgment on the scope of the Article 8(1) right to privacy and on the scope of the justification defence available under Article 8(2).

The facts – REP is the parent company of a company which organises trade fairs for the arms industry, Spearhead Exhibitions Limited. As a result of its association with Spearhead, REP’s offices have been subject to demonstrations, some involving criminal damage. In April 2005, Mr Wood attended REP’s AGM at the Millenium hotel in London in his capacity as shareholder. At the time, Mr Wood was a media co-ordinator for Campaign Against the Arms Trade (“CAAT”). It was not in dispute that Mr Wood was of good character, had no criminal convictions and had never been arrested. Moreover, his behaviour at the AGM had been entirely unobjectionable. However, as he was leaving the hotel, Mr Wood was overtly photographed by a photographer acting on behalf of the police. He was then questioned by police but declined to confirm his identity or answer their questions. The police claimed that, upon leaving the AGM, Mr Wood had been joined by a former member of CAAT with a history of unlawful activity against organisations involved in the arms industry. That assertion was disputed by Mr Wood. The police also claimed that it had taken the photographs in order to be able to identify offenders if offences were or had been committed at the AGM or if they were subsequently committed at the arms fair.

The High Court judgment – The High Court dismissed Mr Wood’s judicial review claim that the police’s actions had breached his Article 8 right to privacy. It did so on the basis that the police’s actions had not interfered with Mr Wood’s Article 8(1) right to private life (Wood v Commissioner of the Police for the Metropolis [2008] EWHC 1105 (Admin)).

The Court of Appeal judgment – The Court of appeal disagreed with the High Court’s conclusion that there was no interference with Mr Wood’s Article 8(1) right to privacy. It held that the mere taking of photographs in a public place was not itself capable of engaging Article 8. However, having regard to the particular circumstances of the case, Mr Wood’s Article 8 right to privacy had been interfered with. In particular, this was so because the photographs had been taken by an organ of the State, the police action was unexplained at the time it happened and, further, it carried with it the implication that the images would be kept and used in the future. On the question of whether the police was able to establish that interference was justified, and hence lawful under Article 8(2), the Court of Appeal unanimously agreed that the taking and retention of photographs of Mr Wood pursued legitimate aims, namely the prevention of disorder or crime and in the interests of public safety or the protection of the rights and freedoms of others. However, they disagreed on the question of whether the measures used by the police to pursue those legitimate aims were proportionate in all the circumstances. The majority (Lord Collins and Dyson LJ) held that, whereas retaining the photographs for a few days after the meeting was permissible, once it had become clear that Mr Wood had not committed any offence at the meeting, it was unreasonable and, hence, disproportionate for the photographs to be retained pending the trade fair. This was because there was no reasonable basis in the circumstances for fearing that Mr Wood might commit an offence at the trade fair. It is apparent from Lord Collins’ judgment that he was particularly concerned as to the potential ‘chilling effect’ which similar police actions would have on future potentially peaceful campaigners (see paragraph 92). Laws LJ dissented on the question of whether the interference was proportionate. He held that the interference was not disproportionate particularly because: ‘The taking of the pictures was in no sense aggressively done. The retention of the pictures was carefully and tightly controlled. The appellant’s image was not placed on any searchable database, far less a nationwide database indefinitely retained. But for the commencement of these proceedings the images of the appellant would have been destroyed after the DSEi exhibition’ (paragraph 58). The judges did however agree that the instant case was wholly distinguishable from Marper (ECtHR decides retention policy in respect of police DNA database gave rise to unjustified interferences with right to privacy – see my earlier post on the Home Office response to Marper and also Tim Pitt Payne’s NLJ article on the judgment itself).

It is important to note that the result of the Court of Appeal’s judgment is that the taking of the photographs did not per se constitute a unlawful interference with Mr Wood’s right to privacy. Rather what was unlawful was the excessive retention of the photographs beyond a time when there was any reasonable basis for supposing that Mr Wood may engage in criminal conduct at the arms fair. On the question of whether this judgment sets a precedent on the question of whether the police can generally take photographs of ostensibly law-abiding citizens, it is worth noting Lord Collins’ concluding comments: ‘it is plain that the last word has yet to be said on the implications for civil liberties on the taking and retention of images in the modern surveillance society. This is not the case for the exploration of the wider, and very serious, human rights issues which arise when the State obtains and retains the images of persons who have committed no offence and are not suspected of having committed any offence’ (paragraph 100).