A recent Supreme Court decision has thrown the spotlight on human rights aspects of an organisation's decision to retain personal data about individuals. R (Catt & T) v Commissioner of Police of the Metropolis concerned an appeal by the Metropolitan Police against a Court of Appeal decision which held that the police had breached two individuals' rights to respect for private and family life under Article 8 of the European Convention on Human Rights (ECHR).
Article 8 provides that every individual has the right to respect for his or her private and family life and that no interference with this right will be justified unless such interference is legitimate and proportionate.
The Metropolitan Police had gathered and retained information about two individuals: Mr Catt, a 91-year-old peaceful protestor who participated in a protest with a group associated with violent crime; and Ms T, who allegedly made a homophobic insult to a neighbour's friend and was issued with a harassment warning letter.
The Supreme Court had no doubt that retention of data in this way constituted an interference with Mr Catt's and Ms T's rights under Article 8. Therefore the case turned on the question of whether the retention of the data could be justified. In both cases, the Supreme Court considered that the retention was justified and Article 8 had not been breached. The Metropolitan Police's appeal was allowed. What is particularly interesting about the case is the wide divergence in views between the different courts and even within the Supreme Court itself.
In Mr Catt's case, it was held that the interference with his private life was minor and the information held, though personal, was not considered to be sensitive. The majority considered that there were several proper policing purposes that justified retaining data of this kind and that restricting the police's ability to gather and retain this information could have potentially very serious consequences. As such, the majority's opinion was that the retention of Mr Catt's information was proportionate and there was held to be no infringement of Article 8. One judge did dissent, considering that it was disproportionate to keep the information about Mr Catt for many years given that he was not known to have acted violently.
In relation to Ms T, all judges agreed that retaining information about harassment allegations served a vital purpose and that the police's general policy of retaining such information for seven years was proportionate. Whilst one judge was of the view that in Ms T's case, given the trivial nature of the incident, seven years would have been too long, the two and a half years for which it was actually held in the end was universally considered to be proportionate. Therefore there was also no infringement of Article 8 in Ms T's case.
Public bodies retaining personal data for any length of time would therefore be well-advised to build a thorough consideration of Article 8 into their data retention policies and ensure on a case-by-case basis that appropriate evidence exists to show not only that retention complies with data protection law, but that it does not fall foul of the ECHR.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at April 2015. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.
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