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Police retention of photos of innocent man breached his right to privacy, says Court of Appeal

Out-Law News | 27 May 2009 | 2:01 pm | 4 min. read

Police should not have kept photos taken of an arms trade protester, the Court of Appeal has ruled. The retention of the photos long after the peaceful protest was a breach of the man's right to privacy, the Court ruled.

The Court said that London's Metropolitan Police were justified in taking photographs of Andrew Wood as he left the annual general meeting (AGM) of Reed ¬Elsevier plc, owner of Spearhead Exhibitions, which puts on arms trade fairs.

But two of the three Court of Appeal judges said that though the taking of the photos was legitimate, they should have been deleted as soon as it became apparent that no crime had taken place at the meeting.

"Within a few days of the AGM, the retention of the photographs could not rationally be justified as furthering the aim of detecting the perpetrators of any crime that may have been committed during the meeting," said Lord Justice Dyson in his ruling. "There was no realistic possibility that evidence that a crime had been committed at the meeting would only be obtained weeks or months after the event."

Wood was the media officer for the Campaign Against Arms Trade (CAAT) and had bought a single share in Reed so that he could attend shareholder meetings. Reed's subsidiary hosted an arms trade fair called Defence Systems and Equipment International ('DSEi'), to which CAAT objected.

Wood attended the 2005 AGM of Reed and asked one question. There were no allegations that he behaved improperly at, before or after the meeting.

A photographer hired by police took photographs of him outside the meeting, and he and a colleague were followed by police. They were stopped before they reached their Underground station and asked to identify themselves.

Wood claimed that the keeping of the photographs resulting from that encounter infringed his human rights, as protected by the Human Rights Act, which implements the European Convention on Human Rights.

Article 8 of the Convention protects the right to privacy, Article 10 the right to free expression, Article 11 the right to free assembly and association and Article 14 the right to exercise the other rights without being subject to discrimination.

All three Court of Appeal judges agreed that in the circumstances, Wood's privacy rights were a factor. Two of the judges, though, ruled that the second part of Article 8 was breached.

"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," says article 8(2) of the Convention.

"In my judgment the interference with the appellant's article 8 rights was disproportionate," said Lord Justice Dyson in his ruling. "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."

"[In a case involving the retention of Michael Marper's DNA] the court went on to say that 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," he said. "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."

"The retention by the police of photographs taken of persons who have not committed an offence, and who are not even suspected of having committed an offence, is always a serious matter," said Lord Justice Dyson. "The retention by the police of photographs of a person must be justified and the justification must be the more compelling where the interference with a person's rights is, as in the present case, in pursuit of the protection of the community from the risk of public disorder or low level crime, as opposed, for example, to protection against the danger of terrorism or really serious criminal activity."

Lord Collins of Mapesbury agreed that there was justification for the taking of the photos, but not for keeping them.

"The retention of the photographs for more than a few days could not be justified as furthering the aim of detecting the perpetrators of any crime that may have been committed during the meeting," he said. "The suggestion that retention of the photographs was justified by the possibility that Mr Wood might attend and commit an offence at the DSEi fair several months later is plainly an afterthought and had nothing to do with the decision to take the photographs."

In a case that went all the way to the European Court of Human Rights (ECHR), Michael Marper recently won the right to have his DNA deleted by the UK Government. It was collected by police when he was arrested, but he was never charged with a crime.

Lord Collins said that there was a delicate legal balance to be struck between the operation of state surveillance and the privacy rights of citizens, and that this case would not settle the question of how to strike that balance.

"It is plain that the last word has yet to be said on the implications for civil liberties of the taking and retention of images in the modern surveillance society. This is not the case for the exploration of the wider, and very serious, human rights issues which arise when the State obtains and retains the images of persons who have committed no offence and are not suspected of having committed any offence," he said.