UK: Police data-gathering on protesters dealt a blow by the courts

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19.06.2013 - The high court has ruled that the Metropolitan police acted unlawfully by filming a legal observer and forcing her to hand over personal details so that she could leave a "kettle" (surrounded and detained by a police cordon), in what is the second legal victory this year for campaigners attempting to limit the powers police have to gather information on protesters.

In November 2011 the legal observer who brought the case, Susannah Mengesha, was "kettled" along with around 100 others outside Panton Street in the West End during an attempted occupation of Panton House. Protesters sought to occupy the building to protest against the chief executive of mining company Xstrata, Mick Davis, who at the time was the highest paid boss of a FTSE 100 company, receiving over £18 million in 2011.

Riot police were quick to follow protesters into the building and "kettle" those in the street outside. Then, according to the judgment:

"On moving from Panton Street where she had been contained, the claimant was held in a separate area, surrounded by police officers, and filmed. She was asked to give her name and address and date of birth. She attempted to ask what police power was relied upon authorising the police to film her and ask her details. Those questioned were not answered until she had been filmed and given her details. The claimant describes the process as being oppressive, aggressive and intimidating." [1]

However, the main point of the case was not the manner in which personal details were gathered, but that:

"the identification of those who had been contained in Panton Street was required of each individual as the price of being permitted to leave."

The evidence that this was the case was, according to Lord Justice Moses, "overwhelming", and entirely unlawful.

The police attempted to present, in their defence, a video of Mengesha which they believed "would show that she was submitting to the process voluntarily." Instead, Lord Justice Moses ruled that:

"[T]he video showed the contrary. It confirmed to me that all those taking part, whether the police or those who had been contained, were behaving under the impression that there was no choice as to whether they should give their details and be filmed for the purposes of identification."

The police claimed in a preliminary argument to the court that the obligation to provide personal details was "part and parcel of the containment", but later abandoned this argument.

They also claimed that the data-gathering was grounded in Section 50 of the Police Reform Act 2002, which allows officers to require individuals to give their name and address if there is reasonable suspicion they have been or are acting in an anti-social manner. This argument was also dropped.

The actions of the police were, the court ruled, "based on a significant misapprehension as to the lawful scope of [their] powers." The judgment makes clear that, although it is a practice that has been deployed on numerous demonstrations, the police have no power to force all those leaving kettles to provide personal information:

"[T]he absence of any statutory power to obtain identification in the circumstances of this case establishes conclusively the unlawfulness of the police action in requiring the claimant to be filmed and give her name and address and date of birth before she was released from containment."

Last year the police also lost a case in which they attempted to bring charges under Section 5 of the Public Order Act against protesters who had been involved in the brief occupation of Panton House, with sixteen people acquitted of all the charges that had been laid against them after five days in court. [2]

The Mengesha judgment is the second this year to undermine to the police's data-gathering tactics. In March, the Court of Appeal ruled that the retention of information and photographs on John Catt, a peaceful protester who has never been involved in any crime, breached his human rights.

Details - including those of Catt's car's numberplate, photographs of him on various demonstrations, and notes regarding his appearance, behaviour and movements - were stored on the National Domestic Extremism Database, which is still in existence and currently managed by the Metropolitan Police. It has previously been under the control of the Association of Chief Police Officers.

Information on Catt was obtained over a number of years, with the first entry into the database made on 21 March 2005, and at the time of the court case the last known entry was made in July 2011. It was largely gathered during his attendance at trade union, anti-militarist, and peace protests.

It was initially ruled that the police were entitled to obtain and retain such information, the Court of Appeal said that "the interference with Mr Catt's right to respect for his private life has not been justified and that the appeal must therefore be allowed." [3]

While it will be easy for protesters to judge whether the police are complying with the ruling given in Susannah Mengesha's case, the police still routinely film and photograph demonstrations and marches. Establishing whether they continue to retain imagery and information on peaceful protesters obtained in this way may be more difficult.

The Network for Police Monitoring is offering to assist individuals who wish to have their information removed from police databases, if it was obtained in circumstances similar to those of Susannah Mengesha. [4]

Further reading
  • Tests near completion on new police weapon, Statewatch News Online, May 2013
  • Thousands more Tasers issued to police in London, Statewatch News Online, April 2013
  • Nick Moss, Collective punishment and pre-emptive policing in times of riot and resistance, Statewatch Journal, March 2013
  • Rob Evans, Paul Lewis and Owen Boycott, Protester wins surveillance database fight, The Guardian, 14 March 2013
  • UN Special Rapporteur calls for a "judge-led public inquiry" into undercover police operations and condemns a number of other police practices, Statewatch News Online, January 2013

    [1] Susannah Mengesha vs. Commissioner of Police of the Metropolis, [2013] EWHC 1695 (Admin)
    [2] Tim Dalinian Jones, Panton House 16 Anti-Protest Trial: Total Victory!, London Indymedia, 8 August 2012
    [3] John Catt cases: Original judgement: John Oldroyd Catt vs. the Commissioner of Police of the Metropolis, [2012] EWHC 1471 (Admin); Appeal judgement: John Oldroyd Catt vs. the Association of Chief Police Officers and the Commissioner of the Police of the Metropolis, [2013] EWCA Civ 192
    [4] Police powers finally kettled by High Court, Network for Police Monitoring, 18 June 2013

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