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On appeal from: [2013] EWCA Civ 192

The cases concerned the police’s power to collect and retain electronic data about individuals.

Mr Catt is a 91-year-old man from Brighton who participates in political protests, sometimes with a group called Smash EDO. Mr Catt is a peaceful protestor but some of Smash EDO’s other members commit violent offences. Because of this, the police record information and some individuals are the subject of a “nominal record” on a Domestic Extremism Database. A nominal record for Mr Catt was deleted before proceedings began but the police continued to hold information about him in 107 “Information Reports” about events.

Ms T was alleged to have said a homophobic insult to her neighbour’s friend. The police made a “Crime Reporting Information System” record – usually kept on the system for 12 years – and sent her a “Prevention of Harassment” letter – usually kept on the system for 7 years. These letters were deleted in the course of preparing for this appeal.

Mr Catt and Ms T argued that the Metropolitan Police’s policy of keeping data on a searchable database is unlawful and contrary to their rights under the ECHR, art 8.

In the case of Mr Catt, the Supreme Court allowed the police’s appeal by a majority of 4 to 1 and in the case of Ms T the court unanimously allowed the police’s appeal. The court held that the state’s systematic collection and storage in retrievable form even of public information about an individual is clearly an interference with private life under the ECHR, art 8(1). Therefore, the appeals turned on whether that retention of data could be justified under the ECHR, art 8(2). The court held that the retention of data in police information systems in the UK is in accordance with the law. Therefore, the real issue was whether the retention is proportionate to its objective of securing public safety or prevention of disorder or crime.

In the case of Mr Catt, the Supreme Court found, inter alia, that the interference with Mr Catt’s private life had been minor. In particular the information is not intimate or sensitive and the primary facts recorded are already in the public domain. In addition, the material is regularly reviewed for deletion according to rational and proportionate criteria. The Supreme Court noted that the longer-term consequences of restricting the availability of this method of intelligence-gathering to the police would be potentially very serious.

Lady Hale agreed with the majority, but noted that since Mr Catt has not been and is not likely to be involved in criminal activity, it would have been disproportionate to keep a nominal record about him. Lord Toulson would have dismissed the police’s appeal, stating that he did not think that the evidence given by the police explains why they need to retain the information for many years after the event about someone about whom they have concluded that he was not known to act violently.

In the case of Ms T, the Supreme Court noted that retaining information about previous harassment complaints serves a vital purpose and it is not unlawful for the police to have a standard practice of keeping this information for several years, provided it is flexible. The “Prevention of Harassment” letter serves a legitimate policing purpose. The standard period of retention was wholly disproportionate in this case in light of the trivial nature of the incident, but Ms T’s ECHR, art 8 rights had not been violated because the material was in fact retained for only two and a half years, which was not disproportionate. However, the dispute could have been resolved by applying to the Information Commissioner.

For judgment, please download: [2015] UKSC 9

For Court’s press summary, please download: Court’s Press Summary

For a non-PDF version of the judgment, please visit: BAILII