By Jag Bahra DTRTP and Law is War Blogger
Wednesday’s Supreme Court judgment (press summary here) in the Catt case marks a missed opportunity to protect the privacy rights of protestors and instead waves through the police’s runaway mass surveillance operations.
By a 4:1 majority the Court allowed the Met’s appeal against the 2013 Court of Appeal decision which had said that the retention of intelligence records on John Catt (a veteran peace protestor suspected of no criminal activity) on the National Domestic Extremism Database breached his privacy rights under Article 8 of the European Convention on Human Rights.
The Supreme Court unanimously rejected the Met’s arguments that the records did not engage or interfere with privacy rights at all, and instead agreed with jurisprudence from the European Court that privacy will be interfered with wherever there is a systematic retention of information, even when that information is publicly available. However the majority deemed the interference to be in accordance with the law and proportionate.
The Court appears to have accepted a sanitised view of how intelligence is obtained and what can be done with it. Lord Sumption claims that “no intrusive techniques” are used by officers to obtain intelligence, that inclusion on the database would “not be regarded as discreditable” and “not used for political purposes or for any kind of victimisation of dissidents”, that information “is not available to potential employers or other outside interests” and that “the material is periodically reviewed for retention or deletion according to rational and proportionate criteria.” [20, 26, 27]
In reality we know that protestors are hounded and intimidated by FIT officers. Many have reported being goaded by officers with personal information that they know about them such as their names and where they live. Others have had photographers following them continuously for hours on end as they go about their day to day business. It is difficult to see how these tactics could not be considered intrusive.
It is also public knowledge that police officers from NETCU (a sister-unit of the NPOIU, itself a predecessor of the NDEDIU which now manages the Domestic Extremism Database) colluded with the Consulting Association to create a blacklist of construction workers who were categorically and deliberately denied work due to their involvement in trade unions. This is a very real example of how police information can be (and in fact was) disclosed to others without regard for the law and with disastrous consequences for those concerned. Late last year it also emerged that the parents of a student activist were contacted by police officers involved in the ‘Prevent’ programme, apparently because they had concerns he was becoming involved in domestic extremism. It is not unreasonable to suggest that it is only a matter of time before we see the intelligence on protestors being ‘put to full use’ by police; this is a bleak prospect in an age in which dissent continues to be attacked by the state from all fronts.
Lord Sumption also rejected the notion that the database was a ‘secret’ one, simply on the grounds that the retention of information on it is subject to the publicly available MoPI Code of Practice and guidance, and that anyone can request data held on them via subject access request under the Data Protection Act. In reality the MoPI code and guidance make absolutely no reference to the database specifically- they provide general guidance on the management of police information obtained in a huge range of circumstances- so quite how they offer any clues as to the existence of the database is unclear. Furthermore, Netpol has found and reported that police are obstructive and more often than not fail to comply with subject access requests, so the DPA can hardly be said to provide ‘robust oversight’.
He also uses the somewhat circular argument that the “existence of specialised police units dealing with political demonstrations which are thought liable to degenerate into criminality is widely known” and “has never been concealed from those who wish to know”.  If the existence of the database can be said to be ‘widely known’ today (and that is in itself debatable) it is only through the efforts of determined investigative journalism, and a handful of high-profile legal actions against the police (including this one). Even if there is no official policy of secrecy around the database, the police have certainly made efforts to hide its existence– for example during Wood v MPC (the first case which challenged the activities of Forward Intelligence Teams) police initially submitted to the Court that there was no database of individuals which could be searched through by name. However midway through proceedings an article was published in the Guardian proved this to be false, forcing the police to change their official position.
The inevitable conclusion from all of this is that the police simply cannot be trusted to operate in the manner in which they claim. Yet the Supreme Court decision ignores this.
Lady Hale disappointingly went as far as to suggest that:
“study[ing] the leadership, organisation, tactics and methods of protest groups which have been persistently associated with violence … enables the police to concentrate their resources on those campaigns and demonstrations where disorder can be predicted, while enabling the great majority of demonstrations to take place without an over-bearing police presence. Demonstration-based reports containing the names of the people taking part, even those who have not committed any criminal offences … can indeed be said to facilitate rather than impede the right of peaceful protest in a democratic society. There is absolutely no reason to believe that this information will be passed on to others to whom it should not be revealed or used to victimise people like Mr Catt.” 
She did however concede that had Mr. Catt been a ‘nominal’ record (rather than a supposedly incidental one) this would have been a disproportionate interference due to the “potentially chilling effect upon the right to engage in peaceful public protest.” 
Lord Toulson in the sole dissenting opinion found the interference with the right to privacy to be disproportionate. He pointed out that whilst most of the records related to Mr. Catt’s attendance at ‘Smash EDO’ protests, many were taken at comparatively innocuous events such as a TUC conference– and asserted that the police had offered no explanation as to why it was necessary or proportionate to hold those records.
He concluded in stark opposition to the majority:
“One might question why it really matters, if there is no risk of the police making inappropriate disclosure of the information to others. It matters because in modern society the state has very extensive powers of keeping records on its citizens. If a citizen’s activities are lawful, they should be free from the state keeping a record of them unless, and then only for as long as, such a record really needs to be kept in the public interest.” 
The ruling signals a green light for the surveillance of activists, which rather than being tightened up now falls within the vast discretion of the police. The Court has paradoxically ruled that being placed on the database will interfere with privacy rights, but then interpreted the requirement of proportionality so widely that it effectively renders the right to privacy in this context meaningless. If the police have not overstepped the mark by targeting individuals they believe to be entirely innocent, then where exactly is that mark? How can it ever be overstepped? (See Netpol’s excellent analysis of the ruling, which examines how this could affect a completely peaceful community-run campaign against fracking.)
John Catt has indicated that he will take the case to the European Court of Human Rights – historically the court has been far stricter on the requirement of accordance with the law and therefore far less willing to allow the state wide discretionary powers where privacy and surveillance are concerned, resulting in a series of rulings against the UK - see Malone v UK (1984), Hewitt v UK (1992), Liberty & Others v UK (2008), S & Marper (2009) (though a notable exception is Kennedy v UK (2010) in which, rather like in this case, the Court took the State’s assertions about oversight and regulation at face value, ignoring the reality.) It will be several years before the case reaches the court but perhaps finally then will there be meaningful safeguards against indiscriminate mass surveillance of political activists.
Until then it is very possible that activists will see a marked increase in forward intelligence and evidence gatherer teams at protests.
Defend the Right to Protest will be holding a briefing on this issue - date to be announced shortly.