UK Supreme Court waves through indiscriminate police surveillance

Committed no crime? Tough, you're on the list

How the police evaded judicial scrutiny by destroying records

Returning to Ms T's case, she received a PoH letter which was issued before her side of the story had even been heard. Incensed, she took the police to court in 2010 demanding the letter was withdrawn and references to it in police databases were deleted. Her solicitors pointed out that retention of the letter for seven years on police systems – which is police policy, as is keeping the initial allegation on file for 12 years – was clearly disproportionate.

What happened next is best taken directly from Lord Sumption's judgment:

That point has, however, lost much of its practical substance, since January 2013, when the Metropolitan Police wrote to her solicitors notifying them that, having re-examined the materials in the course of preparing for the appeal, they had decided to delete the material in any event. The reason was that “there have been no ongoing concerns regarding risk and there are no reports of any further incidents”.

Let me spell that out in plain English: a woman sued the police for unlawfully retaining data about her. Rather than acknowledge their wrongdoing, the police dragged the case on for three years and then deleted the data when it came to trial, thereby evading full scrutiny by the courts.

While you can consider the police view, which is evidently "you wanted this done and now it's done, happy now," that would be to ignore the point of Ms T's appeal: to obtain a legally binding judgment which ensures the police cannot do this again, either to her or to anyone else.

By deleting the data, the Metropolitan Police has dodged the possibility of that happening - and Lord Sumption, to his shame, played straight into their hands. He did, however, correctly identify the heart of the matter.

“The real problem is that the period of retention seems to be a standard period which applies regardless of the nature of the incident and regardless of any continuing value that the material may have for policing purposes,” said Lord Sumption. “It was only because of these proceedings that the retention of the material was reviewed and the decision made in January 2013 to delete it. This is in my view difficult to reconcile with the Data Protection Principles in the [Data Protection] Act.”

The judge went on to say that Ms T's rights had not been breached because the data she complained about had been deleted. He appears to have overlooked the troubling fact that the police deleted the data despite their policy of retaining it for seven years regardless of any value it might have held. Not only that, but he even explicitly ruled out setting a time limit on data retention by the police, despite acknowledging that “seven or 12 years could not be justified.”

No wonder Britain has become a hostile environment for people who value their liberty, when the country's top judges think indiscriminate collection and retention of personal data with the intent of bringing spurious prosecutions based on laughably insignificant allegations is an acceptable way for a modern state to behave.

Not all is lost, thankfully

Of the other Supreme Court judges who heard these two cases, both Lady Hale – the court's deputy president – and Lord Mance agreed with Lord Sumption. The only dissenter, Lord Toulson, said:

One might question why it really matters, if there is no risk of the police making inappropriate disclosure of the information to others. It matters because in modern society the state has very extensive powers of keeping records on its citizens. If a citizen’s activities are lawful, they should be free from the state keeping a record of them unless, and then only for as long as, such a record really needs to be kept in the public interest.

As the sole dissenter, Lord Toulson's opinion effectively becomes worthless, though it is a small nugget of comfort for those few remaining sane people in the UK.

The actions of the Metropolitan Police in both these cases seem to have sprung from the attitude of its chief, Bernard Hogan-Howe. Dogged digging by the Press Gazette has carefully and competently revealed how the force, under Hogan-Howe, has repeatedly lied to the public about how often it abuses surveillance and data retention powers to hunt down and punish whistleblowers and other such sources for journalists.

It seems that the force's “grab it and keep it at any costs” attitude is only tempered by a strong fear of judicial scrutiny. That fear translates into the real world as destroying records central to a court case in order to cut proceedings short while telling untruths to journalists – and then abusing a legal exemption designed to weed out green-ink nutters to slam the door in the face of any attempt at public scrutiny.

The strangest thing about both the Catt and Ms T cases is that the Supreme Court allowed both their appeals against the retention of their personal data by the police. Yet, in its reasoning for doing so, the court gave the green light to indiscriminate police surveillance of exactly the type that led to these two cases coming before the court to begin with.

Catt has indicated he will appeal to the European Court of Human Rights against the Supreme Court's decision to declare the police data retention scheme lawful. ®