Police retention of surveillance photos "breached privacy right"

Posted May 29, 2009
A man, who is a shareholder of a company, attends the company’s AGM and asks a question from the floor, about the company’s recent acquisition of another firm – one which organises trade fairs for the arms business. On the way out of the shareholder meeting, the man is followed by police, photographed repeatedly and asked for his personal details.
He is not detained, arrested or charged, and there is no suggestion that an offence has been committed.
The police create a new dossier on their ‘Crimint’ system and use it to retain the man’s photographs.
This is what allegedly happened to Andrew Wood in London in 2005. At the time, Mr Wood was in charge of media relations for CAAT – the Campaign Against the Arms Trade; according to their account here, that organisation had taken the precautionary step of liaising with the Metropolitan Police before the AGM, and it had been agreed that two of their members would leaflet attendees in front of the meeting. Several other accounts are available online, including this one by the Guardian, and this one written by Wood himself.
The reason the story is back in the headlines is that Mr Wood has just won an Appeals Court case against the police retention of his photographs. The court ruled that while the surveillance itself could be justified, the retention of the photographs represented an infringement of the Human Rights Act. Interestingly, when Mr Wood appealed for judicial review of the case, the police barrister denied that such a record had been made.
The Appeal Court judges ruled that the Privacy right “was important to the individual”, and the the “object pursued by the interference” was not sufficient to justify keeping the photographs. Specifically, Lord Collins rejected the idea that they could be kept in order to make it possible to identify the perpetrators of any crime which might have been committed at the AGM… This would not, he said, justify retention beyond a few days. In a conclusion which is likely to have far-reaching effects, he also rejected the idea that the photographs could be retained in case Mr Wood subsequently committed an offence at an arms fair some months later. This justification, he said, had nothing to do with the decision to take the photographs and was “plainly an afterthought”.
For a much more detailed legal analysis of this distinction between “taking” and “retaining” the photographs, I recommend this document, which is the judgement in Mr Wood’s application for judicial review of the case (given in 2008). While it is paragraphs 51 onwards which set out that judge’s opinion on “taking” versus “retention”, paragraph 37 of the judgement (which, slightly confusingly, cites paragraph 51 of an earlier European Court of Human Rights finding) sets out the principles in a particularly interesting way. Here’s what the ECHR says:
50. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person’s name, or a person’s picture.
Furthermore, private life, in the Court’s view, includes a person’s physical and psychological integrity; the guarantee afforded by Art.8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”.
This, as clearly as anything, draws a distinct line between “privacy” and “secrecy”. It is clear, here, that privacy rights can apply to an individual’s exercise of relations with others. Privacy, in other words, is about disclosure – but disclosure with appropriate control and consent on the part of the individual.
Back to the current UK Appeals Court ruling, though, which specifically cited Article 8.2:
“There shall be no interference by a public authority with the exercise of this right [to a private and family life] except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or … for the prevention of disorder or crime … or for the protection of the rights and freedoms of others …”.
As I say, it was the retention of the photographs beyond any reasonable period associated with the AGM itself which was considered to be a disproportionate interference with Mr Wood’s Article 8.2 rights.
Interestingly, the judge in the judicial review held that Article 14 was not applicable in this case, and the Appeal Court did not overturn that conclusion Article 14 establishes “the right to exercise the other rights without being subject to discrimination” … “on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
To be frank, I don’t yet grasp the logic behind that decision, but will keep at it. It seems to me that, as Mr Wood was not suspected of having done anything illegal before or at the meeting, he was indeed being discriminated against (relative to other attendees who were not photographed) on the basis of actions which arose directly from his ethical opinions about the arms trade – but then, I’m not a judge.
The case is particularly relevant from a privacy/policy/technology perspective because of what Lord Justice Dyson had to say in his summing-up:
“In deciding whether the interference is necessary, the court must have regard to the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference.”
” … the protection of personal data is of fundamental importance to a person’s enjoyment of his or her article 8 rights and the domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of article 8. The need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes.”

––posted by Robin Wilton, Director of Privacy and Public Policy, Liberty Alliance