John Catt’s Judicial Review of ACPO and the Met on 9th February 2012

No police cameras or evidence gatherers were anywhere on the radar.

It took about 15 minutes to penetrate one’s way through the maze of corridors to find the courtroom
where journalists sat eagerly awaiting the opening of the case which was ‘hot’ news that day.

Campaign groups monitoring the hearing included the Campaign Against the Arms Trade and FIT Watch.

Mr. Justice Irwin and Lord Justice Gross heard the case. It opened with the latter declaring that he had in the past presided over the High Court civil injunction brought by EDO MBM against peace activists in Brighton, and checked that John Catt had not been one of the named defendants.

John Catt’s QC, was Tim Owen and Jeremy Johnson QC represented ACPO and the Met.

The following are some of the issues raised, but are on no account exhaustive.

The case opened with Tim Owen asking whether Article 8 (right to private life) of the European Convention on Human Rights was engaged and whether the data stored about John was necessary and proportionate to the achievement of any legitimate aim. He expressed surprise that the police were saying that Article 8 was not engaged and relied on the recent landmark case of Woods to support his position. In Wood, the Court of Appeal held that the photographing by the police of an individual going about his lawful business in the streets of London was a sufficient intrusion by the state into the individual’s personal space to engage Article 8(1), even though this occurred in a public place and the photograph was never in fact placed on a database.

Tim Owen submitted that if Article 8 was not found to be engaged, he would preserve his right to argue that John Catt’s data could still qualify as sensitive personal data under the Data Protection Act 1998.

Jeremy Johnson on the other hand, argued that Article 8 does not protect privacy but the right of respect for privacy; it does not protect trivial matters; and that if there is any Article 8 infringement, it is only on the margins of it. “Where you engage in a public activity (demonstration) you do not have a reasonable expectation of privacy”, he said. Some of the cases he relied on were Friedl v Austria (1995) and X v UK (Application no. 5877/72).

Jeremy Johnson said that John Catt associates closely with violent members of Smash EDO and knowledge of this association is of intelligence value.

Tim Owen challenged why the same criteria the police had used to remove a photograph of John Catt from the database could not equally apply to the written data stored about him and said that this was inconsistent and irrational. The police criteria for having done so was that he had not organised or been involved in any actions which resulted in arrests since the photograph was taken; has no recorded convictions and; no longer appears to be involved in the co-ordination of Smash EDO events or actions.

Tim Owen maintained that at the heart of the police’s justification for keeping data on John was that they need it to identify people associated with criminal activity whether as offenders or witnesses. He pointed out how the data held about him fell into neither category.

Concerns as to the lack of evidence to explain how the database operates, how raw data is dealt with, how material is obtained and, whether it is searchable and capable of being deleted, were raised by Tim Owen. In answer to the police’s assertion that it would be impractical to remove John’s data from the database, he said that having “hoovered up” all this information, to claim its removal was impractical was no defence.

The lack of democratic accountability and governance of the National Public Intelligence Order Unit (NPOIU) and its database were dealt a double blow in the hearing. Firstly, the recent report on the NPOIU’s police spies, by the official policing inspectorate’s Sir Denis O’Connor, which made the aforesaid observations, was relied on. Secondly, reliance was also placed on comments made by former Metropolitan Police Assistant Commissioner for Specialist Operations, John Yates, who had accepted that there had been a “lack of tripartite statutory governance of the NPOIU”, at a Metropolitan Police Authority meeting on 27th January 2011, when he was chair of ACPO Terrorism and Allied Matters (TAM). In January 2011, the Metropolitan Police took over control of the NPOIU. Until then, it had been operated by ACPO, a private limited and, largely unaccountable company.

Tim Owen pointed out how between March 2005 to October 2009, of the 104 files disclosed to John about his political activities during this period, 66 related to him and of those about 15% were of demonstrations other than those against EDO. “Having got onto the radar, he’s now someone who is logged and recorded wherever he goes”, he said.

He emphasised that none of the database entries linked John to any criminal activity and expressed dismay that they went as far back as March 2005. Of the 262 activists the police claim are associated with Smash EDO, he said that they had failed to produce any evidence that he is one of them.

He said that the database “intimidates lawful protesters and exerts a chilling effect on their legitimate activities”.

By the end of the hearing, the enormity of the legal challenge was clearly felt.

The judges reserved judgment. Their ruling should be out in the next few weeks.

Don’t forget, for £10, if you think you’ve been labelled a ‘domestic extremist’, you can also make a subject access request under the Data Protection Act to the Met, and find out what information the State is holding about you on its secret database.