Police retention of personal information may breach privacy, even when information is publicly available or legally obtained

Catt v ACPO and Ors; T v Commissioner of Police of the Metropolis and Anor [2013] EWCA Civ 192 (14 March 2013)

Summary

The English Court of Appeal upheld two appeals from the Divisional Court regarding the right to respect to private life under article 8(1) of the European Convention of Human Rights and the retention of information by the police. The Court found that, even in cases where the collection of information did not breach the right to privacy or the information was publicly available, systematic collation and retention of such information may amount to an unjustifiable infringement of the right to privacy.

Facts

Mr Catt and Ms T (appellants) maintained that certain material held by the police was of a personal and private nature. They argued that police collection and continuous retention of such information was in breach of the right to privacy contained in article 8 of the Convention. Public authorities in England and Wales are required, under section 6 of the Human Rights Act 1998 (UK), to act in a manner that is compatible with the rights outlined in the Convention.

Mr Catt

Mr Catt was a protestor who was known to frequent public demonstrations. Certain information about Mr Catt (such as his name, age and appearance) was recorded on the National Domestic Extremism Database; Mr Catt was not the specific target of any observations or investigations but was referred to in the course of descriptions of events. There was also a photograph of Mr Catt that was removed in 2010. At first instance, he sought an order compelling the police to remove all reference to him from the database, which failed. The Divisional Court held that the information retained by the police was of a public rather than private nature, having been obtained from observations made at public demonstrations, which could be no different to reports compiled by interested members of the public.

Ms T

Ms T was served with a “Prevention of Harassment Letter” after the police received an allegation that she had directed a homophobic insult toward one of her neighbour’s visitors. The Crime Reporting Information System (CRIS) recorded the fact that a decision had been made to serve Ms T with this warning letter. The information had been retained for two and a half years. Ms T denies the allegation and sought an order that the police destroy the letter and remove from their records all references to the decision. At first instance, Ms T’s application failed. Justice Eady at first instance held that there was an interference with her rights under article 8(1), but that interference was justified pursuant to article 8(2) (outlined below). However, during the course of the appeal preparation, the respondent reviewed the original decision and decided that the record would in fact be destroyed. Although Ms T has achieved her purpose, the Court of Appeal agreed to hear argument and determine the matter due to the importance of the issues.

Decision

The Court of Appeal reviewed the case law on the right to privacy as contained in article 8 of the Convention. According to the article, everyone has the right to respect for his or her private life, and there are limited circumstances where it is permissible for public authorities to interfere with this right, namely where such an interference is in accordance with law, or is necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, or for the protection of the rights and freedom of others.

Interference – article 8(1) of the Convention

The Court adopted the definition of “private life” as set out in S v United Kingdom (2009) 48 EHRR 50. This definition includes (but is not limited to) the physical and psychological integrity of a person, information about a person’s health, ethnic identity, gender identification, name, sexual orientation and sexual life, and any information linking a person to their family. Following the approach in S v United Kingdom, the court will “have due regard to the specific context in which the information at issue has been recorded and retained, the nature of the records, the way in which these records are used and processed” to assess whether a breach of the right to privacy has occurred.

Reasonable expectation of privacy

The Court considered the current jurisprudence on the reasonable expectations of privacy. First, it noted that there will not be an interference with the right to privacy where a person knowingly or intentionally involves himself in activities which may be recorded or reported in public, in circumstances where that person does not have a reasonable expectation of privacy: Kinloch v Lord Advocate [2012] UKSC 62. In addition, where the activities recorded by authorities are activities undertaken in a public place, there will usually not be a reasonable expectation of privacy: see X v United Kingdom (Application No 8577/72); Freidl v Austria (1995) 21 EHRR 83. Further, information of a public nature may become private over time (R (L) v Commissioner of the Police of the Metropolis [2009] UKSC 3). Whether the authorities have invaded a person’s privacy will also depend on whether they were targeted or identified (Freidl v Austria) and whether the authorities were behaving in a way that they are expected to behave (R (Wood) v Commissioner of Police of the Metropolis [2009] EWCA Civ 414).

Treatment and use of recorded information

The Court was of the view that although the starting point to considering whether the right to respect for private life has been engaged is whether the claimant had a reasonable expectation of privacy, other considerations also “come into play in relation to the collection and retention of personal data by the authorities”. The Court found there is support for the proposition that, even where information that is recorded is public information, there will be a breach of article 8(1) if the authorities systematically collect, store or process that information on a database that enables the authorities to search for and recover information by reference to a particular person. The case law shows that the “processing and retention of even publicly available information may involve an interference with the subject’s article 8 rights”.

Justification – article 8(2) of the Convention

The Court then turned to the question of whether the breach of the right to privacy could be considered justified under the circumstances. The court set out that the conduct in question must satisfy three requirements in order to justify a breach of article 8(1) rights under article 8(2):

• that it is in accordance with the law (the law being sufficiently accessible and certain and do not give the authorities an excessively broad discretion over the manner of their implementation);
• that it is carried out in pursuit of a legitimate aim; and
• that the interference is proportionate to the aim sought to be achieved.

The Court noted that the need to strike a fair balance between the personal interest of the claimant in maintaining respect for their private life and the pursuit of a legitimate aim in the interests of the public.

The case of Mr Catt – article 8(1) of the Convention

The Court found that Mr Catt did not have a reasonable expectation of privacy, given the information was publicly available, and the police were doing what was expected by recording that information. However, the Court found that the collection and storage of his information on the database in a way that was easily searchable involved an interference to his right to respect for private life.

The case of Mr Catt – article 8(2) of the Convention

The database has no statutory foundation but is based on the common law powers of the police. The object of the database was legitimate – to assist in preventing disorder and crime and to safeguard the rights and freedoms of others.

The information, which was of a personal nature but not of a sensitive kind, was retained indefinitely. The relevant policy set out that information should be held for a minimum of six years to assist the police in identifying offending patterns over time. The Court did not doubt the importance of modern policing of detailed intelligence gathering and the judgment of the police of what information is relevant to assist their task. However, 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. The Court was not convinced that the value of the information is sufficient to justify its continued retention. The Court found that the interference had not been justified and the appeal was allowed.

The case of Ms T – article 8(1) of the Convention

The Court noted that issuing the letter was in itself unlikely to amount to an interference with her right to respect for her private life. However, the issue of the letter had to be viewed in the context of the CRIS report and the retention by the police of a copy of the letter and the information describing the allegation. The Court was of the view that the letter and the CRIS report contained information of a personal kind, the systematic processing and retention of which will amount to an unlawful interference with the right to respect for private life if not justified. Further, the Court was of the view that the nature of the information, if it is public, is of the kind that can reasonably be expected to be forgotten over the course of time so that it becomes private information.

The case of Ms T – article 8(2) of the Convention

The Court was of the view that the retention of the letter by authorities was done in pursuit of a legitimate aim, being the prevention of crime and the protection of the rights and freedoms of others. The Court noted that the letter was not a formal determination, and although it would have been better if the police had consulted Ms T before serving the letter on her, this did not make the letter unlawful. However, the Court was concerned about the blanket nature of the CRIS policy which allowed for the retention of such information for up to twelve years for any allegation of harassment, and was of the view that retention of information of this kind for more than a matter of months needed to be justified. The Court found that the continued retention of the information was “unnecessary, disproportionate and unjustifiable” in light of the decision by authorities to expunge the record. The appeal was allowed.

Commentary

The Victorian Charter frames the right to privacy in terms of a prohibition on ‘unlawful’ or “arbitrary” interference with that right. The proportionality approach adopted by the courts in relation to article 8(2) was applied to section 13(a) of the Victorian Charter by Justice Bell in Patrick’s Case [2011] VSC 327 and WBM v Chief Commissioner of Police [2012] VSCA 159. However, the majority in WBM only went so far as to say that the approach provides “some guidance” in the context of arbitrary interference. It is unclear whether Australian courts will follow the Court of Appeal in finding that authorities who systematically collect, store or process information regarding personal details, even where that information is public, are interfering with the right to privacy – either per se or on the basis that the authorities must show that the value of the information is sufficient to justify the breach of privacy by its retention.

The decision is available here: http://www.bailii.org/ew/cases/EWCA/Civ/2013/192.html

Roxanne Moore is a lawyer at Arnold Bloch Leibler.