Three issues have come to light over the last few days which raise yet more concerns around police operations, privacy and freedom of expression. All three have a common theme in that they all show the police’s willingness to flout the law and desire to actively obstruct those who challenge their unlawful actions.
1. Innocence is irrelevant
On Tuesday it emerged that police forces across the country have been assembling a vast database of custody photographs (‘mugshots’) to be linked with facial recognition software. The database – which was set up by police without the knowledge of the Independent Biometrics Commissioner or Home Office – reportedly holds some 18 million photographs and even includes individuals who were acquitted or never even charged with an offence.
The existence of such a database which does not discriminate between convicted and innocent individuals appears to flout the ruling of the High Court in RMC & FJ v Commissioner of Police for the Metropolis . In that case two individuals who had been arrested but had all charges dropped took legal action against the police on Article 8 (right to respect for private life) grounds in order to have their custody photographs removed from police records. The Commissioner argued that they were being retained in accordance with the law under s.64A PACE and the Management of Police Information (‘MoPI’) code of practice and guidance – which states that records should be kept for a blanket minimum of six years before deletion is considered.
Lord Justice Richards found that in relation to custody photographs the MoPI code of practice was deficient in a number of respects:
- There was “no adequate distinction” between individuals who were convicted, not charged, and acquitted – this raised concerns around “the risk of stigmatisation of those entitled to the presumption of innocence, or the perception that they are not being treated as innocent…”
- The retention period was “on any view a long period (a minimum of six years) and likely to be much longer…”
- Retention of unconvicted persons’ data could be particularly harmful in cases of minors 
He concluded that the policy did not “strike a fair balance between the competing public and private interests and meet the requirements of proportionality” and that the retention of the photos therefore amounted to an unjustified interference with the claimants’ Article 8 rights. However instead of ordering the immediate destruction of the photographs, he granted the police a “reasonable time” in which to come up with a new, more proportionate policy- warning that this should happen within the space of “months, not years” 
The existence of this vast new database demonstrates that the police have ignored the ruling and taken no such action; this is confirmed by the Biometrics Commissioner Alastair MacGregor QC in his 2014 annual report in which he states (p.105) that:
“although more than two years have passed since judgment was given in that case – it would appear that no ‘revised policy’ has in fact been brought into existence as regards the retention of custody photographs and that many (and perhaps most) police forces in England and Wales continue to follow a policy of retaining almost all custody photographs for an indefinite period regardless of whether the individuals concerned have or have not been convicted of an offence.”
Chief Constable Mike Barton defiantly declared on BBC Newsnight that he was “unashamed” about keeping the photographs of unconvicted people on the database. Sir Bernard Hogan-Howe told the BBC that the Met have stopped adding images to the database “until the law has been clarified” – bizarrely commenting:
“are we keeping images of people who aren’t convicted, and are we using them? …I don’t think this is against the law but of course we always want to catch criminals.”
As it stands, it seems clear that the practice is very much against the law. Perhaps by further legal clarification he is referring to the Supreme Court’s impending judgment in the Catt v ACPO case? This however would be inconsistent with the position taken by police lawyers who argued that in the circumstances in Catt the RMC & FJ decision should be distinguished.
The stance taken by the police demonstrates an ongoing obsession with intelligence which runs roughshod over the rights of those who are caught up in the dragnet. This particular story caught on amongst the mainstream media leading to a slightly more-lively-than-usual political response. Lib Dem MP David Laws commented that he was “alarmed [the database] has been brought into operation without any public consultation or parliamentary debate.” Presumably he, along with most other politicians and journalists, would be surprised to learn that this is in fact just the latest in a series of revelations about secret police databases. The domestic extremism database and trade union blacklisting sagas unfortunately remain in relative obscurity despite having been revealed years ago, and by all rights should have prompted widespread outrage among politicians and the media.
2. Journalists are domestic extremists too
A public lecture held last week by the Haldane Society of Socialist Lawyers highlighted how journalists were being systematically targeted for surveillance and being designated as ‘domestic extremists’ along with the protestors whom they document in a professional capacity. (A video of the lecture is available here).
Journalists Jess Hurd and Jason Parkinson discussed how after months of denials and obstruction by police, subject access requests revealed that vast amounts of detailed intelligence on them and fellow journalists had been gathered by forward intelligence police, in some cases spanning decades and effectively entire journalistic careers. They appear to have been targeted for no reason other than their coverage of political protests and exposure of police wrongdoing; much like John Catt, none are suspected of having committed any criminal offence. Jason Parkinson recounted that his intelligence records specifically (and mistakenly) identified him as XLW (‘extreme left wing’). It is widely accepted that a free press is the lifeblood of a healthy democracy. Journalists must be able to perform their work without fear of intimidation or censure by the state. How then can it possibly be justifiable for police to target them in this way?
Shamik Dutta, the solicitor who represents John Catt as well as a group of six journalists bringing a claim against the police on the same basis, pointed out that a huge amount rides on the impending Supreme Court judgment in Catt. Police have argued not simply that the storing of intelligence on those who are suspected of no crime is lawful, necessary and proportionate in the circumstances; they have gone as far as to say that the storing of that intelligence does not even engage Article 8 privacy rights at all. If successful on this point the issue of who is and isn’t a ‘domestic extremist’ would then become redundant – the police would essentially be granted a ‘carte blanche’ by which the surveillance of absolutely everyone – no matter how innocent – will be fair game.
3. Information flows one way only
A final point which underscores the police’s contempt for those who seek to hold them to account is the news that the Met yesterday refused to comply with a Freedom of Information request from the Press Gazette on the grounds that it was “vexatious” under s.14(1) Freedom of Information Act 2000, suggesting that the request was “annoying or disruptive or which [may] have a disproportionate impact…”. It was the sixth request the Press Gazette had made since September, as it was investigating how police had abused their self-authorised powers under RIPA 2000 in order to obtain communications data which could reveal journalists’ sources – a practice which again shows a serious disregard for traditional notions of press freedom.
Jon Baines’ post on his excellent Information Rights and Wrongs blog discusses how “vexatious” is to be interpreted; the matter is being considered by the Court of Appeal, though it seems fairly safe to assume that in the vast majority of circumstances a request from investigative journalists into a matter of considerable public importance cannot rightly be dismissed in this manner. The decision will be something of a PR disaster for the police whose operations are currently steeped in controversy. The decision has betrayed a sense of entitlement to everybody else’s data whilst refusing to give away anything about their own legally dubious operations to the public.
On the issue of RIPA and journalists’s sources, the Interception of Communications Commissioner (‘IOCCO’) today issued its timely recommendations on the matter. The IOCCO has concluded that, due to the complexities inherent in weighing up Article 10 rights, the power to grant authorisations in these circumstances should be entrusted to a judge, rather than allowing police to self-authorise as they currently do. The change will require legislation by Parliament – perhaps in this case the police will be more willing to comply. In either case they would do well to bear in mind David Laws MP’s comments which summed up the database debacle and wider issues around it fairly well:
“There is a mind-set here, which is flawed…It’s quite understandable, police always want more powers, but I’m afraid the courts and parliament say there are limits.”
Thanks to Shamik Dutta for clarifying a couple of points.