European Court of Human Rights finds breach of Article 8 in relation to retention by police of political activist’s personal data

HomeInsightsEuropean Court of Human Rights finds breach of Article 8 in relation to retention by police of political activist’s personal data

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The applicant, John Oldroyd Catt, is a British national who was born in 1925 and lives in Brighton.

Mr Catt is a lifelong peace activist and a regular attender at demonstrations of various kinds. In 2005 he began to take part in protests by a group called Smash EDO against the Brighton factory of US arms company EDO MBM Technology Ltd. The protests involved disorder and a large police presence. Mr Catt himself has never been convicted of any offence.

In March 2010 he made a request to the police under the Data Protection Act 1998 for any information held about him. The police disclosed 66 entries collected from March 2005 to October 2009, mostly related to Smash EDO, but also concerning 13 other demonstrations and events. These included attendance at a Trades Union Congress conference in Brighton in 2006, at a demonstration at a Labour Party conference in 2007 and a pro-Gaza meeting in 2009.

The information was held in a police database concerning “domestic extremism” and was contained in records on other individuals and in reports that mentioned him incidentally. The entries recorded his name, presence at an event, date of birth, address, and sometimes his appearance. In August 2010 Mr Catt asked the Association of Chief Police Officers (ACPO) to delete the entries that mentioned him, but the ACPO declined to do so.

Mr Catt sought judicial review, arguing that retaining the data was not “necessary” within the meaning of Article 8 of the European Convention on Human Rights. In May 2012, the High Court held that Article 8 was not engaged and, even if it were, the interference had been justified. Mr Catt won in the Court of Appeal, which found the retention of his data had been disproportionate, but in March 2015 the Supreme Court upheld an appeal by the ACPO and the Commissioner of Police.

The Supreme Court stated that retaining the data had been in accordance with the law and proportionate. In particular, it said that the invasion of privacy had been minor, noting that the information obtained was already in the public domain and was not intimate or sensitive.

The Supreme Court also said that there were good policing reasons why such data had to be collected and retained, even if it concerned protesters with no criminal record and with no likelihood of being violent. Further, there was no prospect of the information being given to third parties, such as employers, or used for political purposes, and the data was periodically reviewed for retention or deletion.

In answering questions put by the Supreme Court, the Government stated that they had found four more entries on Mr Catt than had originally been disclosed. The police could not provide an explanation for why the reports had not been revealed earlier.

Relying on Article 8 (right to respect for private and family life), Mr Catt complained about the police’s retention of his personal data.

The ECtHR expressed concern about aspects of the provisions for collecting personal data, particularly the lack of a clear definition of “domestic extremism”, but it focused on whether there had been any justification for interfering with Mr Catt’s rights by holding data on him.

Like the Supreme Court. it found that there were good policing reasons why such data had to be collected. In Mr Catt’s case, the collection of his data had been justified because Smash EDO’s activities were known to be violent and potentially criminal. While Mr Catt had never been violent or shown any tendency towards such behaviour himself, he had identified himself repeatedly and publicly with that group.

The ECtHR found, however, that the continued retention of data in Mr Catt’s case had been disproportionate because it was personal data that revealed political opinions and so had enhanced protection. It had been accepted that Mr Catt did not pose a threat to anyone, taking into account various factors, including his age, and there had been a lack of effective procedural safeguards.

This lack of safeguards included the absence of a time limit on how long data should be kept, the only definite rule being that information would be held for a minimum of six years before being reviewed. In Mr Catt’s case, it was not clear that such six-year or other reviews had taken place. This also contrasted with privacy resolutions passed by the Council of Europe, which indicated that there should be maximum time limits for holding certain kinds of information. The ECtHR was also concerned about the effectiveness of legal challenge as a safeguard in this case because the police had actually held more data on Mr Catt at the time of the national proceedings than previously acknowledged.

In any event, the usefulness of the safeguard of holding a review was questionable, as the decision to retain information on Mr Catt had not had regard to the heightened protection for data revealing a person’s political opinion.

Lastly, the ECtHR rejected the Government’s argument that, because the extremism database was not automated, it would be too difficult to review and delete all the data on Mr Catt. In fact, domestic guidance showed that review and deletion had been intended and had actually occurred for some of the data in Mr Catt’s case.

Overall, the ECtHR decided that there had been a violation of Mr Catt’s rights under Article 8. (Catt v United Kingdom (application no 43514/15) (24 January 2019) — to read the judgment in full, click here).