Secret UK Police Database of Peaceful Protesters Violates Article 8 of ECHR (ECtHR)
On 24 January 2019, the European Court of Human Rights ruled unanimously, in the case of Catt v UK (App. no.: 43514/15), that the retention by police of information on the Domestic Extremism Database about a 91 year-old applicant’s involvement in political protests breached his right to private life under Article 8 of the European Convention on Human Rights.
The applicant had participated in political protests for decades and he had never been convicted of any criminal offence. However, the police had collected his personal data and retained it in a searchable database under ‘Domestic Extremism’, without his knowledge or consent. There was also nothing stopping the police from retaining the data indefinitely, even in the absence of any evidence of criminal behaviour on the part of the applicant. In 2015, the UK Supreme Court ruled 4-1, in the case of R (Catt) and R (T) v Commissioner of Police of the Metropolis  UKSC 9, that the applicant’s rights under the European Convention on Human Rights were not violated by the retention of his data by the police. The European Court of Human Rights disagreed.
The Court first held that there had been indeed “a pressing need to collect the personal data about the applicant” as “it is in the nature of intelligence gathering that the police will first need to collect the data, before evaluating its value” (para ). Secondly, the Court also recognised that the police had indeed had appropriate reasons to gather intelligence about members of Smash EDO (the protest group to which the applicant belonged) as the group had members that were known to be violent and potentially criminal (although not the applicant himself) and the applicant “had after all decided to repeatedly and publicly align himself with the activities of a violent protest group” (para ).
However, in the end, the majority of the Court, under the heading of ‘proportionality analysis’ of Article 8(2), decided that there was no “pressing need to retain the applicant’s data“. Although the Court recognised that personal data (such as applicant’s) might be retained over some time after having been legitimately collected, the whole scheme lacked appropriate safeguards preventing potential abuse (para ). The Court was most concerned with the fact that “whilst the applicant could and did request the disclosure and destruction of his data, this safeguard appears to have been of limited impact given the refusal to delete his data or to provide any explanation for its continued retention – including the later disclosure without explanation of the retention of additional data… So far as the Court is aware, at least some of the applicant’s personal data concerning his involvement in non-violent protest was collected over six years ago and remains in the domestic extremism database… despite the fact that the police concluded, and the domestic courts affirmed, that the applicant was not considered a danger to anyone” (para ).
Finally, the Court pointed to the possibility of undermining the democratic process by the government collecting, retaining and potentially abusing data about one’s legitimate political activities:
“123. Moreover, the absence of effective safeguards was of particular concern in the present case, as personal data revealing political opinions attracts a heightened level of protection (see paragraph 112 above). Engaging in peaceful protest has specific protection under Article 11 of the Convention, which also contains special protection for trade unions, whose events the applicant attended (see paragraph 10, above). In this connection it notes that in the National Coordinator’s statement, the definition of “domestic extremism” refers to collection of data on groups and individuals who act “outside the democratic process”. Therefore, the police do not appear to have respected their own definition (fluid as it may have been (see paragraph 105)) in retaining data on the applicant’s association with peaceful, political events: such events are a vital part of the democratic process (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 92, ECHR 2004-�I). The Court has already highlighted the danger of an ambiguous approach to the scope of data collection in the present case (see paragraph 97 above). Accordingly, it considers that the decisions to retain the applicant’s personal data did not take into account the heightened level of protection it attracted as data revealing a political opinion, and that in the circumstances its retention must have had a “chilling effect”.”
Interestingly, although the judgment was unanimous as to its outcome, it contained a Concurring Opinion of Judge Koskelo and Judge Felici. The opinion focused on the fact that the issue of the lack of safeguards and the possibility of abuse of data retained in the database should have been dealt with under the heading of ‘in accordance with the law’ of Article 8(2), as “…the phrase “in accordance with the law” […] requires not only that the impugned measure must have a basis in domestic law, but that it must also be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and is inherent in the object and purpose of Article 8. Thus, the requirement of lawfulness also refers to the quality of the law in question. This entails that the law should be adequately accessible and foreseeable as to its effects...” (para ).
The Judges held that, given the lack of sufficient safeguards concerning the database and the fact that it the applicant was unable to get his data deleted even in the absence of any evidence of criminality on his part, “…it would have been appropriate for the Chamber to focus its analysis more thoroughly and consistently on the assessment of the “quality of the law” aspect of the case, because that is where the crux of the case lies, instead of leaving that issue open and resolving the case on the basis of the assessment of “necessity”. …[T]he quality of the relevant legal framework was not adequate in a context such as the present one, and therefore the interference was not “in accordance with the law” within the meaning of Article 8 § 2. This finding is sufficient to conclude that there has been a violation of Article 8″ (para ).
It is worth remembering that the European Court of Human Rights has not said in this case that a database containing information about political activists violates the European Convention on Human Rights, even where there is no evidence of any criminal activities. The case in fact has confirmed that states are entitled to gather intelligence about political protesters if the group they associate themselves with could be reasonably believed to produce criminal activities. However, any database containing such intelligence must have adequate safeguards concerning the retention policy, access by 3rd parties as well as persons concerned and the possibility of deletion, either automatic or on a person’s request.