R (on the application of M) v Chief Constable of Sussex  EWCA Civ 42 is an important decision from the Court of Appeal regarding an information sharing agreement (“ISA”) between a police force and a local business crime reduction partnership (“BCRP”). The ISA was held not to breach the Data Protection Act 2018 (“DPA”) and the sharing of information that revealed a vulnerability to child sexual exploitation (“CSE”) was held not to be in breach of data protection rights. The case indicates the approach that the courts may take when asked to scrutinise information sharing agreements and policy documents where the police seek to share data with other organisations for the purpose of reducing crime and disorder.
A group of police officers exchange off-duty, sexist, degrading, racist, antisemitic, homophobic and disability-mocking WhatsApp group chat messages, as well posting crime scene photographs of current investigations. No crime was committed. That’s a private matter, isn’t it? No. It isn’t. So held the Second Division of the Inner House of the Court of Session in BC v Chief Constable of the Police Service of Scotland Livingstone  CSIH 61;  SLT 1021 (Lord Justice Clerk (Lady Dorrian), & Lords Menzies and Malcolm).
If concerns are raised that a person might be vulnerable to radicalisation, how long can a police force hold data about that person? This was the question facing the High Court in the case of R (II) v Commissioner of Police for the Metropolis  EWHC 2528 (Admin), which held that the police’s continued retention of data a sixteen year old was contrary to the Data Protection Act 2018 and Article 8. In finding this, the court held that a force’s retention of data must be proportionate, what is proportionate in any given situation is fact-specific and that when the police cease to be able to identify a policing purpose for continued retention of personal data, it should be deleted.
The case of R (Bridges) v Chief Constable of South Wales Police & Information Commissioner  EWCA Civ 1058 (handed down on 11 August 2020) was an appeal from what is said to have been the first claim brought before a court anywhere on planet earth concerning the use by police of automated facial recognition (“AFR”) technology. There could be nothing wrong with posting scores of police officers with eidetic memories to look out for up to a 800 wanted persons at public gatherings. So why not use a powerful computer, capable of matching 50 faces a second with a database of (under) 800 suspects, to do this job much more cheaply and instantaneously, flagging any matches to a human operator for final assessment? According to the Court of Appeal in Bridges, this system constitutes an interference with Article 8 rights which is not such as is in accordance with the law, but which (critically) would be proportionate if a sufficiently narrow local policy were framed.
The system in use in South Wales will require a more rigorous local policy to be put in place which reduces the breadth of discretion available to individual officers as to who and (connectedly) where may be targeted for the use of AFR, as well as sufficient impact assessments, pursuant to the Equality Act 2010 and DPA 2018, and a sufficient DPA 2018 policy statement.
In Catt v United Kingdom  ECHR 76, the European Court departed from and disagreed with the Supreme Court, holding that the police’s collection and retention of data of a peaceful protestor was an unlawful interference with Article 8 of the Convention.
Mr Catt was a 94-year-old man from Brighton; a peaceful protestor who regularly attended public demonstrations since 1947. In 2005, he began attending demonstrations held by ‘Smash EDO’. Although there was often serious disorder and criminality at Smash EDO’s protests, Mr Catt only ever attended in a peaceful capacity and was never charged with anything.
In 2010, he made a ‘subject access request’ to the police, to identify what records, if any, they held on him. The police disclosed sixty-six entries identifying his attending protests between 2005 and 2009. Some were EDO Smash protests, many were other protests. All of these records were held on the police’s “Extremism Database”.
The Association of Chief Police Officers, ‘ACPO’, refused to delete the entries on Mr Catt. They failed to give any reasons for this refusal, and so Mr Catt judicially reviewed ACPO’s decision. In so doing, he claimed a breach of his article 8 right to privacy.