R (on the applications of CATT and T) v Commissioner of Police of the Metropolis [2015] UKSC 9

The Supreme Court considered whether police retention of personal data on databases—records of Mr Catt's attendance at political protests and a harassment warning letter concerning Ms T—violated article 8 ECHR. The Court allowed both appeals, finding retention proportionate and lawful.

Facts

Two conjoined appeals concerned the systematic collection and retention by police of electronic data about individuals on searchable databases. In neither case was the information obtained by intrusive techniques; it consisted of records of acts occurring in public or common areas.

Mr Catt

Mr Catt, a 91-year-old peace activist, objected to the retention on the ‘Domestic Extremism Database’ (National Special Branch Intelligence System) of records of his participation in political demonstrations since 2005, particularly those organised by ‘Smash EDO’, a group some of whose members engaged in serious criminality. Mr Catt himself had never been convicted of any offence, although he had been arrested twice for obstruction. His nominal record had been deleted, but incidental references to him remained in information reports and in nominal records of others.

Ms T

Ms T objected to the retention of a ‘Prevention of Harassment Letter’ issued in October 2010 following an allegation by a neighbour’s friend that she had used a homophobic insult. The Metropolitan Police standard practice was to retain such letters for seven years and the corresponding Crime Reporting Information System (CRIS) record for 12 years. The material was in fact deleted in January 2013, after about two and a half years.

Issues

The Court had to determine:

• Whether article 8(1) ECHR was engaged by the systematic retention of personal data about activities occurring in public;
• Whether the retention was ‘in accordance with the law’ under article 8(2); and
• Whether the retention was proportionate to the legitimate aims of preventing disorder and crime.

Arguments

The respondents (Catt and T) contended that retention engaged article 8, was not in accordance with the law because the rules were insufficiently clear, and was disproportionate. Mr Catt argued that the police had not justified retaining records about him given his peaceful conduct and clean record. Ms T objected to the lengthy standard retention periods.

The Commissioner submitted that retention was governed by the comprehensive framework of the Data Protection Act 1998, the statutory Code of Practice under section 39A of the Police Act 1996, and the Management of Police Information (MOPI) Guidance. Detective Chief Superintendent Tudway’s evidence explained the operational value of retention for assessing risks to public order, investigating offences, and studying the organisation and tactics of protest groups associated with violence.

Judgment

Engagement of Article 8

Lord Sumption (with whom Lord Neuberger agreed) held that article 8(1) was engaged. Drawing on Rotaru v Romania, PG v United Kingdom, and S v United Kingdom, the systematic collection and storage of even public information about an individual constitutes an interference with private life.

In Accordance with the Law

The Court held that retention was in accordance with the law. The Data Protection Act 1998, together with the statutory Code of Practice and MOPI Guidance, provided clear principles, restricted retention to policing purposes (narrowly defined), required periodic review, and contained effective enforcement mechanisms via the Information Commissioner and the courts. Lord Sumption distinguished MM v United Kingdom and R (T) v Chief Constable of Greater Manchester, which concerned mandatory disclosure under the Police Act 1997 not governed by the Data Protection Act.

Proportionality – Mr Catt

The majority (Lord Sumption, Lord Neuberger, Lady Hale, Lord Mance) held retention proportionate. The information was not intimate or sensitive; it concerned overt public activities; it was not disclosable beyond policing purposes; and it was periodically reviewed. The retention served legitimate purposes including informed assessment of public order risks, investigation of offences, and study of the leadership, tactics and links of violent protest groups. Lord Sumption emphasised that intelligence is necessarily acquired indiscriminately and its value judged in hindsight, and that the burden of filleting nominal records to remove peripheral mentions would be disproportionate.

Lord Toulson dissented in Mr Catt’s case, considering that the police had not justified retaining records of an elderly peaceful protester with no propensity for violence and no role in coordination, particularly in relation to attendances at unrelated events.

Proportionality – Ms T

The Court unanimously allowed the appeal. Lord Sumption considered that the standard seven and twelve-year periods could not be justified for so trivial an incident and were difficult to reconcile with the Data Protection Principles, but the actual retention of two and a half years was at the far end of the spectrum yet not too long. Lord Toulson and Lady Hale held that the policy was lawful because it was flexible in practice, and that retaining records of harassment complaints serves important policing purposes, particularly in domestic abuse and neighbour disputes where escalation patterns must be monitored.

Implications

The judgment confirms that the systematic retention of personal data, even relating to activities in public, engages article 8(1) ECHR. However, the existing UK framework comprising the Data Protection Act 1998, the section 39A Code of Practice, and MOPI Guidance satisfies the ‘in accordance with the law’ requirement.

On proportionality, the decision recognises substantial deference to police operational judgment about intelligence value, particularly where personal data is not intimate, not publicly disclosed, restricted to policing purposes, and subject to periodic review. The retention of incidental references to individuals in records concerning organised protest groups associated with violence may be justified even where the individual is peaceful and has no convictions.

The judgment also signals that standard, inflexible retention periods may be problematic where they bear no relationship to the gravity of the underlying incident, but a policy will not be unlawful where flexibility exists in practice. The case underlines the appropriate route for challenge: complaint to the Information Commissioner rather than judicial review for routine disputes about data retention. Lord Sumption observed that Ms T’s case was disproportionate to the issues at stake, having gone through three levels of judicial decision.

The decision is significant for police data management, civil liberties, and the law of privacy, balancing intelligence-led policing against the protection of personal autonomy in a society where the state’s information-gathering capacity has expanded dramatically.

Verdict: Both appeals by the Commissioner of Police of the Metropolis were allowed and the respondents’ claims dismissed. In Mr Catt’s case, Lord Toulson dissented; in Ms T’s case the decision was unanimous.

Source: R (on the applications of CATT and T) v Commissioner of Police of the Metropolis [2015] UKSC 9