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.
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.