Photographs – Police powers and duties – Interface with right to private life

Wood v Commissioner of Police of the Metropolis: CA (Civ Div) (Lords Justice Laws, Dyson, Lord Collins): 21 May 2009

The appellant (W) appealed against a decision ([2008] EWHC 1105 (Admin), [2008] HRLR 34) that the taking and retention of photographs of him by the police was not a breach of his rights under article 8 of the European Convention on Human Rights 1950.

W was a media co-ordinator for an organisation known as Campaign against Arms Trade (CAAT). He had no criminal convictions and had never been arrested. W attended as a shareholder the annual general meeting of a company whose subsidiary organised a trade fair for the arms industry. W asked a question at the meeting and then left. He was photographed by the police on the street outside. He and other members of CAAT were spoken to by the police. W declined to identify himself or answer questions about the meeting. The police took the photographs in order to be able to identify offenders if offences were committed or had been committed at the meeting and/or if offences were committed later at the trade fair. The police kept a database of images for intelligence purposes but W’s image was not added to it. The judge held that there was no interference with W’s rights under article 8(1) by the taking and retention of the photographs, and that if there was an interference with W’s rights under article 8(1) it was in accordance with the law and proportionate for the purposes of article 8(2). The police submitted that article 8(1) was not engaged by the mere taking and retention of the photographs because the circumstances did not elevate the case to the necessary level of seriousness, and because the photographs had been taken in a public street where people could take photographs at any time and there was no expectation that W would not be photographed. W submitted that article 8 was engaged and that the police action was not in accordance with the law for the purposes of article 8(2) because any legal justification for it was not sufficiently clear and precise and that the police action was disproportionate to the aim in view.

Held: (Laws LJ dissenting on the issue of proportionality) (1) Article 8 was engaged in the circumstances of the case. The bare act of taking a photograph in a public place was not of itself capable of engaging article 8 but the taking in the instant case had to be considered in context. On the particular facts, the police action, unexplained at the time it happened and carrying as it did the implication that the images would be kept and used, was a sufficient intrusion by the state into the individual’s own space and integrity as to amount to a prima facie violation of article 8(1). It attained a sufficient level of seriousness and in the circumstances W enjoyed a reasonable expectation that his privacy would not be thus invaded, S v United Kingdom (30562/04) (2009) 48 EHRR 50 ECHR (Grand Chamber) considered.

(2) The taking and retention of photographs of W were in pursuit of a legitimate aim, namely the prevention of disorder or crime and in the interests of public safety or the protection of the rights and freedoms of others.

(3) The interference with W’s article 8 right to a private life constituted by the taking and retention of the photographs was not justified pursuant to article 8(2). The police’s justification for retaining the photographs for more than a few days after the meeting did not bear scrutiny. Once it had become clear that W had not committed any offence at the meeting there was no reasonable basis for fearing that, if he went to the trade fair, he might commit an offence there. It was for the police to justify as proportionate the interference with W’s article 8 rights and they had failed to do so.

(4) It was not necessary to decide whether the interference was ‘in accordance with the law’.

Appeal allowed.

Martin Westgate (instructed by Liberty) for the appellant; Sam Grodzinski (instructed by in-house solicitor) for the respondent.