By Jag Bahra of Defend the Right to Protest. This piece was originally posted on Jags blog Law Is War.
This week the Supreme Court will hear a crucial case regarding the surveillance of political activists and protestors via forward intelligence/evidence gatherer teams and the national domestic extremism database.
Catt v Association of Chief Police Officers was brought by peace protestor John Catt, who upon submitting a subject access request to police discovered http://www.theguardian.com/uk/2010/jun/25/peace-campaigner-classified-domestic-extremist that they had been keeping detailed records of his activities on the National Domestic Extremism Database. His file contained details about his attendance at ‘Smash EDO’ demonstrations, including detailed descriptions about his appearance (such as slogans on his t-shirt) and behaviour (he enjoyed sketching the scene at demonstrations), as well as a photograph though this had been subsequently deleted. The police conceded that he had no history of criminal activity and was not even suspected of having committed any wrongdoing.
Mr Catt argued that this was a breach of his right to privacy under article 8 ECHR and that the records should be deleted. He lost at the Divisional Court but was successful at the Court of Appeal in 2013. https://netpol.org/2013/03/15/catt-judgement-leave-police-intel-gathering-practices-in-tatters/ The police appealed this decision and this is now the first time that the Supreme Court will be dealing with the issue. The judgment will set an important precedent as to how widely the police can monitor and profile the activities of political protestors. To date, police have refused to offer any real guidance on how this type of surveillance operates, and have not published any written policies or procedures detailing who can be included on their databases and for what reasons. A dismissal of the police’s appeal will send a strong signal that they must change the way they do things – eg. by limiting the scope of who can be monitored and/or by publishing a manual of guidance which provides clarity. However if the appeal is successful it will be a vindication of current surveillance practices.
The Catt case is one of just three that have gone before the English courts arising from the use of police forward intelligence teams. In this hopefully not too lengthy post I aim to set out in a somewhat dispassionate manner the current state of play in terms of how the courts have ruled on the activities of FITs and the article 8 right to privacy. Of course the Supreme Court, being the highest court of England & Wales, will not be bound by the following decisions; nor is it bound by the decisions of the European Court of Human Rights – (it is only required to ‘take them into account’ under s.2 Human Rights Act 1998 – something which the Conservative Party would do well to note), but this should hopefully provide an interesting background to the appeal.
Article 8 ECHR Framework:
First for the uninitiated- a quick note on how a claim under article 8 works. Art.8 is of course a qualified right, meaning that the state can lawfully interfere with it in certain circumstances.
The claimant must first show that:
- His/her rights under article 8 are engaged (ie that this is a situation in which they are in play), and
- there has been an interference with those rights.
It then falls to the state to show that the interference was:
- in pursuit of a legitimate aim (ie the prevention of crime or protection of the rights of others – this is easily satisfied in practice),
- in accordance with the law (ie there must be some basis in law for the interference, and that law must be of a sufficient ‘quality’ so as to ensure fairness), and
- necessary and proportionate.
If the state cannot show that all 3 of the above conditions have been met the interference will be unlawful.
Wood v Commissioner of Police for the Metropolis (2009)
Andrew Wood was an activist involved in the Campaign Against the Arms Trade (CAAT). As part of a CAAT initiative he lawfully bought shares in Reed Elsevier - the corporation which hosts the DSEI trade fair for defence companies– entitling him to attend the company’s annual general meeting so that he could put ethical considerations on the agenda. He did this along with a handful of other CAAT activists, some of whom were ejected from the venue for causing a disturbance by shouting slogans (though no criminal offences were committed). Mr Wood left the meeting peacefully and of his own accord, and had no previous or pending convictions for any criminal activity.
Reed Elsevier was at the time a regular target for demonstrations due to its association with the DSEI fair and therefore police were wary of the potential for criminal activity, and were policing the event closely. Outside the shareholders’ meeting Mr Wood was spotted by FIT officers, who approached him and began photographing him and asking for his name. He refused and began walking to the nearest tube station but was followed by police who continued photographing him at close range and even attempted to get tube staff to tell them his name, causing him to feel intimidated.
The police submitted during proceedings that the purpose of the surveillance was firstly to assist in the subsequent identification of offenders if it had transpired that criminality had occurred during the AGM, and secondly to identify in advance any individuals who would go on to commit criminal offences at the DSEI trade fair, which was due to happen a few months after the event. The police also provided information on what was done with images obtained in this manner and supposed safeguards against abuse [see paragraphs 5-7]. An article in the Guardian http://www.theguardian.com/uk/2009/feb/23/police-civil-unrest-recession emerged during the proceedings which revealed that the database was more sophisticated than police had previously admitted, however these revelations did not have any bearing on the outcome of this case.
Mr Wood’s claim under articles 8, 10 and 11 were unsuccessful at the High Court and he appealed to the Court of Appeal. The 3 Judges came to different conclusions, ruling by a 2 to 1 majority in favour of the appellant.
Laws LJ found that the police’s actions amounted to more than a “mere snapping of the shutter” , and that in the circumstances the taking of the photos, with the possibility they would be retained and used, amounted to a “sufficient intrusion by the State into the individual’s own space [and] integrity”.  He also noted the ruling in S & Marper v UK (2009) http://www.bailii.org/eu/cases/ECHR/2008/1581.html which said that “the mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8…”
The Court had no trouble finding that the interference was for the legitimate aims of the prevention of crime and disorder, protection of public safety and/or protection of the rights of others, due to the history of protest activity surrounding Reed Elsevier and DSEI and the police’s stated objectives in obtaining the photos.
Laws LJ found that the degree of interference suffered by the appellant was ‘modest’ and as such the requirement of accordance with the law was satisfied by the general common law power which police enjoy to take photographs (Murray v UK (1994) http://www.bailii.org/eu/cases/ECHR/1994/39.html) It was held irrelevant that police had failed to disclose their ‘Standard Operating Procedures for Use of Overt Filming/Photography’ documentation.
On the issue of proportionality, Laws LJ also found in favour of the police and therefore dismissed the appeal. The appellant had sought to rely on the ruling in S & Marper, in which the European Court of Human Rights had found that the indefinite retention of DNA samples of innocent individuals amounted to a breach of art.8. Laws LJ considered that case to be distinguishable, due to the difference in how the information would be retained (it was accepted in this case that the images would have been deleted were it not for the initiation of legal proceedings, as the photos had fulfilled their purpose.) and the “qualitative difference between photographic images on the one hand and fingerprints and DNA on the other” . (It should however be noted that in the more recent case of C & J v Commissioner of Police for the Metropolis (2012) http://www.bailii.org/ew/cases/EWHC/Admin/2012/1681.html the High Court explicitly applied the principles of S & Marper to the retention of photographs taken by police on arrest of the claimants, as both types of information contain “external identification features”.)
However Dyson LJ pointed out that the retention by the police of photographs of individuals who were not suspected of having committed any offence “is always a serious matter.”  He considered that once it had become clear that no offences were committed, the justification for the retention of images falls away. He declined to rule on the issue of accordance with the law as his finding on proportionality was sufficient to render the interference unlawful.
Lord Collins also ruled in favour of the appellant, noting that he was “struck by the chilling effect on the exercise of lawful rights such a deployment would have.”  Like Dyson LJ he declined to rule on accordance with the law but proportionality was the key issue – in his view the police could not justify the ongoing retention of the photographs once it was established that he had not committed any offences at the AGM. He warned that there were “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.” .
Catt v Association of Chief Police Officers
John Catt was the second individual to challenge FIT surveillance in the courts. The factual background has already been set out above. The Divisional Court dismissed his judicial review on the grounds that all of the information in question had been obtained in a public setting (at public demonstrations) so his article 8 rights were not engaged, and that what the police had done could not be distinguished from what a private actor such as a journalist could lawfully do. They also commented in obiter that even if his article 8 rights had been engaged the interference would have been justified.
The Court of Appeal considered closely the requirement of a ‘reasonable expectation of privacy’ – which is generally accepted as the threshold which must be crossed in order for article 8 rights to be engaged. The Court considered the Strasbourg case Segerstedt-Wiberg v Sweden (2006) http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-75591 – in which Swedish police had gathered information on the claimant’s political activities including his attendance at a political meeting. The information was publicly available but the Court found that it still attracted privacy rights under art.8, as it had been “…systematically collected and stored in files held by the authorities.”  A similar approach had been adopted in PG v UK (2001) http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-59665 , which concerned the covert recording of the claimant’s voice so that the samples could be used for identification purposes. It had been held that “Private-life considerations may arise…once any systematic or permanent record comes into existence of such material from the public domain.”
It was held that the information which police had retained (the appellant’s name, age, appearance and history of attendance at political demonstrations) was information which fell “within the scope of his personal autonomy over which he is entitled to retain control.” In Kinloch v Lord Advocate (2012) http://www.bailii.org/uk/cases/UKSC/2012/62.html the Supreme Court had ruled that when determining whether there had been an interference with article 8 rights, it was necessary to consider both “the extent of the particular intrusion into the individual’s private space and to the use made of any evidence resulting from it.” In Mr. Catt’s case, the information was not evidence to support any prosecution for criminal behaviour, but merely ‘intelligence’, which by the police’s own admission was likely to be retained until the Smash EDO group ceased to function, or would possibly be retained indefinitely. His privacy rights under article 8 were therefore engaged and had been interfered with.
That the interference was in pursuit of a legitimate aim was not controversial in the proceedings. The court accepted that “core members of Smash EDO are prone to violence and criminal behaviour” and that the purpose of the database was to enable forces to share intelligence on “violent protest groups” and gain a better understanding of how they operate. The database therefore fell within the legitimate aim of preventing crime and disorder and protecting the rights and freedoms of others. 
On accordance with the law, it was noted that the retention of information is governed by the ‘MoPI’ code of practice on the management of police information http://www.cleveland.police.uk/downloads/Code_of_Practice_on_MoPI.pdf, which stipulates that information should be retained for six years before being reviewed for deletion. The Court declined to rule on this point due to their finding on proportionality but acknowledged it was “still very much a live issue given the relatively vague nature of some aspects of the regime… and the criticisms voiced by the Divisional Court in [C & J]” 
On the issue of proportionality the Court was “left with the clear impression that police officers who attend protests organised by Smash EDO for the purpose of gathering intelligence record the names of any persons whom they can identify, regardless of the particular nature of their participation.”  They also approved of Dyson LJ’s approach in Wood that an interference for the purposes of preventing terrorism or serious crime could be more readily justified than one which was only for the prevention of low-level crime. Allowing the appeal, the Court concluded:
“The systematic collection, processing and retention on a searchable database of personal information, even of a relatively routine kind, involves a significant interference with the right to respect for private life…in this case the respondent has not in our view shown that the value of the information is sufficient to justify its continued retention. It is striking that [the respondent] does not say that the information held on Mr. Catt over many years has in fact been of any assistance to the police at all.” 
The Divisional Court’s finding that it would be impossible to expect the police to be able to comb through their intelligence more finely in order to discard the less relevant pieces of information was rejected, with the Court reiterating that the burden of justifying any interference rests squarely with the state.
Mengesha v Commissioner of Police for the Metropolis (2013)
The most recent case was that of Mengesha v MPC, which I previously wrote about here https://lawiswar.wordpress.com/2013/06/18/kettling-for-intelligence-ruled-unlawful-by-high-court/. A group of around 100 protestors were ‘kettled’ during a trade union march in 2011 in order to prevent a further breach of the peace after some damage to property occurred. Protestors were eventually allowed to leave the kettle but only on the condition that they allowed themselves to be searched by police, gave their name and address, and allowed themselves to be filmed at close range by FIT photographers. The claimant had attended the demonstration in the capacity of legal observer and was caught up in the kettle. Again she claimed a breach of her article 8 rights.
Considering both the Wood and Catt decisions, the court had no difficulty in finding that article 8 was engaged in the circumstances, requiring justification by the police.
This time the Court offered a definitive view that the interference was not in accordance with the law. Not only was there no statutory power to obtain the information in the first place (as this fell outside the powers conferred by s.64A PACE), but there was also no published policy on the retention of that information. The C & J case had found deficiencies in the MoPI code of practice, ruling that it did not draw a sufficient distinction between individuals who were convicted, merely charged, and acquitted, and therefore created a disproportionate interference with the claimants’ article 8 rights. This was therefore dispositive of the current case – “Since there was no statutory power to take and retain the photographs and no arrangements, let alone any published policy applicable to such a case, the Commissioner cannot justify the retention of the images and personal details.” 
The Supreme Court appeal
The Appeal will be heard this week between 2nd-4th December with judgment expected in the new year. As already mentioned this is the first time the Supreme Court has ruled on the surveillance of political activists through use of forward intelligence teams and the national domestic extremism database, so will set a crucial precedent. The Network for Police Monitoring have also intervened as an interested party in the case and will be making submissions. Keep an eye out for live tweets from the Supreme Court!