On 24 January 2019, the European Court of Human Rights (the ECtHR) delivered its judgment in the case of Catt v. the UK and found that police powers to retain personal data in its Extremism Database is in breach of the European Convention on Human Rights.
The case concerns Mr John Catt, a 94-year-old activist from Brighton, who had been included in the Extremism Database. The Extremism Database is a police database which at all relevant times was under the National Public Order Intelligence Unit of the Police (the NPOIU). Mr Catt was twice arrested at Smash EDO demonstrations for obstructing the public highway but has never been convicted of any offence.
In March 2010, Mr Catt made a request to the police under Section 7 of the Data Protection Act 1998 asking for any personal information about him. As a result, he received sixty six entries concerning events between March 2005 and October 2009. In August 2010, Mr Catt asked the Association of Chief Police Officers (the ACPO) to delete the entries but ACPO declined to do so.
In its judgment, the ECtHR found a violation of Article 8. The ECtHR raised several concerns in relation to the database and how long the information is kept for but also in the scope of the information held. It expressed concerns about the ‘ambiguity of the legal basis for the collection of the applicant’s personal data. In particular […] the loosely defined notion of “domestic extremism” and the fact that applicant’s data could potentially be retained indefinitely.’
The definition of ‘domestic extremism’ relied upon by NPOIU was as identified by the National Coordinator of NPOIU – ‘not prescribed by law. It is a descriptor generally used by the police service and partners to describe the activity of individuals or groups who carry out criminal acts of direct action to further their protest campaigns, outside the democratic process.’ This definition of domestic extremism used by ACPO was scrutinised by Her Majesty’s Inspectorate of Constabulary in 2012. The Inspectorate found that the ‘definition could incorporate a very wide range of protest activity and its breadth means that it affords limited guidance to authorising officers applying RIPA (whatever its merits for other purposes).’ It proposed to narrow the definition of domestic extremism to limit it to threats of harm from serious crime and serious disruption to the life of the community arising from criminal activity.
The ECtHR also identified that this definition is not the only one used in the UK. For example, a different, but similarly broad definition is incorporated in the Counter-Extremism Strategy 2015 as ‘the vocal or active opposition to fundamental British values…’ As the Inspectorate noted ‘this definition may not be suitable for the police as it is not limited to criminality or police work.’
Further, the ECtHR noted that ‘the police do not appear to have respected their own definition (fluid as it may have been in retaining data on the applicant’s association with peaceful, political events: such events are a vital part of the democratic process’ even after the police concluded and the domestic courts had affirmed that Mr Catt was not a danger to anyone. It also referred to the heightened level of protection attached to the data collected as it revealed Mr Catt’s political opinion.
The Government claimed that it would have been too burdensome to review the database and delete the entries as the database is not fully automated. However, the Code of Practice on the management of police information requires the data to be reviewed after six years and deleted. The Court added that ‘it would be entirely contrary to […] Article 8 if the Government could create a database in such a manner that the data in it could not be easily reviewed or edited.’
It remains to be seen what the Government’s response to the raised concerns will be. It is clear that, at least in the case of Mr Catt, the information contained in the database does not refer to extremism under ACPO’s definition. Furthermore, despite the procedures in place, the reviews are not undertaken and the information is not deleted. How many more non-violent Mr Catts there are in the database remains a question. However, in light of the judgment, it is clear that the UK needs to reconsider its approach.