The Metropolitan Police and the Association of Chief Police Officers (ACPO), with the backing of the Secretary of State, are fighting a case in the Supreme Court, defending their ‘right’ to store data on protesters. They are appealing against a 2013 judgement, which said that they were obliged to destroy data about an anti-war protester called John Catt.
John Catt had been put under surveillance while attending demonstrations and public meetings against Brighton arms dealers, EDO MBM (Exelis).
To read about the campaign against EDO MBM in Brighton take a look at www.smashedo.org.uk
Here are some detailed reports of the case from the Network for Police Monitoring:
Day 3 of the John Catt ‘domestic extremism’ Supreme Court hearing
Today was the third and final day of legal argument at the Supreme Court in the attempt by the Metropolitan Police to overturn a Court of Appeal decision on its ‘domestic extremism’ database. Judgement has been deferred to a later date.
A summary of submissions on day 1 (by counsel for the Metropolitan Police) is available here and day 2 (by counsel for John Catt) here.
John Catt’s case at the Supreme Court concluded today, but not before submissions by the Equality and Human Rights Commission and closing remarks from the Metropolitan Police.
Jeremy Johnson QC for the Met raised eyebrows when he claimed that there had been no attempt to keep secret the database on which John Catt’s details (along with those of up to 26000 others) were kept – and that in fact there was no such thing as a ‘domestic extremism’ database anyway. The latter point was truly splitting hairs – while the database was officially named the ‘National Special Branch Intelligence System’, it had been consistently referred to as the ‘domestic extremism database’ in the original case in the High Court and in the Court of Appeal.
The existence of the database came to public attention in a Guardian article in 2009 and it was confirmed in an answer to a question posed by Jenny Jones in the London Assembly in September 2009. Tim Owen QC, for John Catt, had pointed out that up until that point the database had been shrouded in secrecy. The Met claimed that this was not the case as its existence was made known in an HMIC report in 2003. This, however, is surprising as the HMIC reported in 2003 that ‘a major shortcoming in Special Branch capability and effectiveness was…the inadequate provision of IT systems and the absence of any Special Branch national network or database for intelligence management.’ In any event, Johnson said, protesters should have been aware that the details of suspected offenders and those associating with them could be taken and retained by the police – as this what is stated in the Met’s registration with the data controller under the Data Protection Act.
John Catt had, Johnson reiterated, been associating with criminal suspects. The ‘evidence’ for this consisted of the fact that Catt had been “regularly present at events where disorder had taken place”, which “at least raised the possibility of association” and that he had expressed support for suspects by attending court hearings where some were being prosecuted (and later acquitted) of criminal acts.
Many people will doubtless be concerned that the act of attending protests where other people had broken the law, or attending court in support of activists on trial, could lead to their details being held on a domestic extremism database.
Lord Toulson flagged up a particular intelligence report made at a protest outside the TUC conference. The report noted that “the following protesters attended [giving John Catts name]” and noted that those attending were “regular protesters”. Johnson appeared to flounder when he was pushed by both Toulson and Neuberger to state where justification could be found for the retention of this data, when there was no question of criminal acts having taken place at all.
Johnson also claimed that the fact the database had been reduced from 26000 down to 2000 showed “the system was working” and that many entries had been deleted when the initial six year period had passed. It was not, as John Catt had claimed, evidence of disproportionate retention. Nor did he accept the other allegation that had been made, that the reduction in the numbers on the database had been made only because of the current judicial challenge.
Alex Bailin QC had earlier made submissions on behalf of the Equality and Human Rights Commission. He strongly challenging the assertion of the Metropolitan police that ‘mere’ retention of data could not be an interference with privacy rights. On the contrary, the “correct test for the legality of the database is whether there is systematic collection and retention – by which I mean routine or indiscriminate collection, recording the names of individuals regardless of the nature of their participation in protest events, and the entry of that data on a searchable database.” Where a database could be used to compile a profile, to get a picture of a person’s overall movements and behaviour, it “crossed the line” and was an interference with their private life. He also pointed out that the particularly sensitive nature of the data being held on the database – that it carries the details of political affiliation and activity, and carries the stigmatising label of ‘domestic extremism’ – makes it even more important that there are clear provisions on the circumstances in which data will be collected, retained, destroyed or disclosed.
The court will now consider their judgement.
Day 2 of the John Catt ‘domestic extremism’ Supreme Court hearing
Today was the second of three days of legal argument at the Supreme Court in the attempt by the Metropolitan Police to overturn a Court of Appeal decision on its ‘domestic extremism’ database. Today’s submissions were made by Tim Owen QC, representing the campaigner John Catt.
A summary from day 1 of the Supreme Court hearings is available here
The barrister Tim Owen QC, counsel for peace campaigner John Catt, was today faced with the task of convincing the Supreme Court that the actions of the police in retaining his client’s personal data on the ‘domestic extremism’ database had a “chilling effect” on protest and breached his fundamental human rights. At times this seemed like an uphill struggle. Read more
Day 1 of the John Catt ‘domestic extremism’ Supreme Court hearing
Today was the first of three days of legal argument in an attempt by the Metropolitan Police to overturn an earlier Court of Appeal decision that found the retention of a protester’s data was disproportionate and a breach of human rights legislation.
The case had originally been brought by Brighton peace campaigner John Catt, who has argued that police actions in taking notes on his attendance at political demonstrations and retaining them on a ‘domestic extremism’ database were a breach of his Article 8 right to respect for his private life. In May 2012, the High Court ruled against him, but this was reversed by the Court of Appeal in March 2013.
The Metropolitan Police argued in the Supreme Court today that officers should be free to collect and retain the personal data of people engaged in protest whenever they considered it necessary and legitimate to do so, and that the ‘mere’ retention of data did not breach privacy rights.
Day 1 of the John Catt ‘domestic extremism’ Supreme Court hearing
Today was the first of three days of legal argument in an attempt by the Metropolitan Police to overturn an earlier Court of Appeal decision that found the retention of a protester’s data was disproportionate and a breach of human rights legislation.
The case had originally been brought by Brighton peace campaigner John Catt, who has argued that police actions in taking notes on his attendance at political demonstrations and retaining them on a ‘domestic extremism’ database were a breach of his Article 8 right to respect for his private life. In May 2012, the High Court ruled against him, but this was reversed by the Court of Appeal in March 2013.
The Metropolitan Police argued in the Supreme Court today that officers should be free to collect and retain the personal data of people engaged in protest whenever they considered it necessary and legitimate to do so, and that the ‘mere’ retention of data did not breach privacy rights.
The legal arguments are complex but some of the main positions adopted by the police are summarised below:
Protesters have ‘no reasonable expectation of privacy’ when they take part in public demonstrations.
This is a contentious area and may become a key issue in the outcome of the case. While ‘reasonable expectation’ has been recognised as an important consideration in deciding whether privacy rights have been breached, a substantial amount of case law in the European Court of Human Rights (ECHR) has suggested that this is not the only valid test of whether there has been an interference in a person’s right to respect for their private life. Considerations could also arise where there is a systematic collection and retention of personal data, even if that data was taken from the public domain where there is no reasonable expectation of privacy.
The Metropolitan Police have suggested that none of the ECHR case law is ‘inconsistent’ with the ‘reasonable expectation’ test. Counsel for Home Secretary Theresa May (who also made submissions today) went further and suggested, without any trace of irony, that this idea – that the systematic retention of data could in itself be an interference in a fundamental right – was an ‘extreme position’.
In taking notes and photographs of demonstrations where there may be criminality or disorder, the police are doing only what they are expected to do.
The police appeared to suggest that because protesters now ‘expect’ to be photographed and filmed when taking part in political protest and demonstrations, this gives grounds for the claim that they have ‘no reasonable expectation of privacy’. However, as Lord Toulson pointed out, an expectation that you may be filmed and photographed is not quite the same as finding your details retained on a ‘domestic extremism’ database.
There is no support in case law for the idea that retention alone could be an interference with Article 8 rights to privacy.
The police suggested that if data is stored securely and safely, available only to the police, then this cannot be an interference with Article 8 rights. They suggested that an interference would only arise if the police took some further action, such as disclosing or publishing data. They conceded that people may feel uneasy or even distressed at the retention of their data for years on a police database, but that this did not mean it was a breach of their rights to a private life.
Individuals are entitled to control over their personal information – but people voluntarily give up some of those rights when they take part in public demonstrations.
Again, this is something of a tricky argument as it is unclear where the limits of this lie. Do we all cede our rights to control personal data the moment we step outside the door – or only when we take part in political protest?
That even if the retention of data was an interference in private life, this was justified by the need for the police to retain whatever data they consider necessary for police purposes.
Adrian Tudway, the National Co-ordinator for Domestic Extremism, had given a statement insisting that the need for surveillance is ‘obvious’. The Metropolitan Police have further claimed that if they are prevented from retaining data in any way they wished, this could undermine the changes made in the light of the Bichard report into the Soham murders.
The police insist they are subject to tight regulation by the Data Protection Act 1988
The police say this means any further regulation or legislation is unnecessary. They specifically cited the Subject Access Request provisions in the Data Protection Act as an example of effective regulation – ignoring the fact that, as Netpol has repeatedly complained, the Metropolitan Police has consistently failed to meet legal standards for the disclosure of data.
John Catt was not a ‘nominal’ on the domestic extremism database and the data collected on him was therefore merely incidental.
The police maintained that the 66 entries containing information about Mr Catt and his daughter, including his behaviour, appearance, associations and even the car he drove, was just part of police practices in recording events. They suggested it was no different to recording the presence of the Home Secretary at a public event.
Tim Owen QC, Counsel for John Catt, had a few minutes at the end of today’s hearing to respond. He used the time to point out that, despite Metropolitan Police statements to the contrary, John had been consistently targeted as a ‘known individual’ and had been subjected to sustained and systematic surveillance and that ECHR case law was clear – that systematic collection and retention of personal information amounted to an interference in Article 8.
The arguments continue tomorrow. Once again, we will share updates via Twitter (see below from today) – follow us at @policemonitor
http://rabble.org.uk/cops-in-court-fighting-for-the-right-to-mass-surveillance/