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.
One particular exchange seemed to sum up the hurdles Tim Owen faced. He pointed out that “if this was Russia, and the police, the FSB, were compiling a list of all known protesters, we would surely not be arguing that was not a breach of human rights.” In response, Lord Toulson said that, while some states would surely victimise people who had taken part in political protest, “that is not the same in this country – or at least we would hope it is not”.
The victimisation of John Catt for taking part in protest is, of course, what his case has always really been all about. His barrister tried hard to convey the idea that John Catt’s ‘domestic extremist’ categorisation was not merely an incidental mention in a police officer’s notebook, but that the campaigner had faced systematic targeting, with his movements across the country tracked and recorded, simply because he chose to take part in political protest.
However, Lord Mance echoed police submissions yesterday that John Catt “seems to go quite often to places where there is some fear of disorder” and Lord Sumption suggested that the police should surely be noting the identities of people associating with protest groups known to engage in criminality “for later analysis”. In response, Owen referred the court to a police intelligence report compiled at a lawful protest, one where there was no public disorder, in which John Catt is named as a ‘known protester’. “This is why he has been targeted”, said Owen, “not because of any involvement in criminality, because he has never been involved in criminality – it is because he is a ‘known protester’.“
No policing necessity for the retention of John Catt’s data
Tim Owen also pointed out the very limited intelligence value of the data held on his client and dismissed arguments put forward by the police that such data was necessary to show a course of conduct or ‘eliminate an individual from investigations’. This data, he reminded the court, spanned a ten-year period, during which time it should have become very obvious that it could serve no legitimate purpose. It was not enough for the data to be ‘useful’. Police may find it useful to hold personal data on everyone, along with DNA and fingerprints. This, however, would not be lawful.
Owen also said there was evidence that databases had become so bloated with data that they no longer had an intelligence purpose. In 2012 the National Domestic Extremism Unit (NDEU) stored data on over 26,000 specified individuals or ‘nominals’, but that had been reduced to just 2000 after they were criticised by Her Majesty’s Inspectorate of Constabulary (HMIC) for keeping data that was ‘unnecessary for policing purposes’. In an attempt to bring the domestic extremism database within the law, there had been, Tim Owen said, a “bonfire of data”.
This showed clearly that the unit (now known as the National Domestic Extremism and Disorder Intelligence Unit) could easily ‘weed’ the database of entries when it wanted to – the argument that it was ‘not workable’ to retrieve and remove entries of a particular individual was therefore far than credible.
Interference with the right to respect for private life
Tim Owen explained that there were three stages where police actions could raise private life considerations: the collection of data, the retention of that data, and its disclosure. In this case, he accepted that the collection of data, through the police taking photographs or notes, was not an interference with private life. However at the stage of deciding to retain personal information on a database, there was an interference that the police then had to justify that decision. That much he said, was clearly shown in the case law of the European Court of Human Rights and needed no extension of ECHR case law.
Making the case on justification, however, seemed a little more difficult for Tim Owen, as Lord Mance remarked that some of the protests Catt had been involved in “caused serious disruption – there must be greater justification for more intrusion that there would be in other situations?”
The Data Protection Act 1998 (DPA)
Owen argued that, while the DPA may require (like Article 8 of the European Convention) that data retention is both necessary and proportionate, compliance with the Act is not itself sufficient to deliver compliance with Article 8. The DPA says nothing about the circumstances in which data was collected and compliance with it did not mean police actions were ‘in accordance with the law’
In order to be compliant with Article 8 rights, the legal framework around data retention needs to meet the requirements of legality – that is, it must be accessible and foreseeable, so that ordinary people have some chance of how to ‘regulate their conduct’. Owen made it clear that the present regime completely fails to do this – the existing legal framework, including Codes of Conduct on the Management of Police Information (MoPI), does not even mention “domestic extremism”, let alone explain what criteria the police has for including people on the domestic extremist database.
He submitted that the police must make clear the circumstances when they intended to take and keep individuals’ personal data. This would include:
- The type of activity – so that people would know the types of activity that would lead to the police retaining – or not retaining – their data
- The type of storage – so that people would know what sort of activities would result in them having an entry on a database with the ‘stigmatising label’ of Domestic Extremism
- The duration of storage – how long their data would be held for.
This appeared to meet a surprising level of opposition from the Supreme Court bench. Lord Mance thought it would be a ‘herculean task’ for the police, while Lord Toulson thought this might ‘make it unlawful to gather intelligence on suspected terrorists’.
Surely, however, it is not unreasonable for the police to come clean about when and how they monitor protesters?
The hearing is still ongoing – tomorrow morning the Equality and Human Rights Commission make their submissions on the legality of the Domestic Extremism database. Once again, Netpol will provide updates from the Supreme Court on Twitter at @policemonitor.