As much privacy as a goldfish bowl?

The filming by police of protestors at public protests has become increasingly controversial in recent years. The presence of an officer with a camcorder may itself be a trigger for crowd hostility.

Such filming, and the use to which the footage is subsequently put, is being challenged both on the streets and in the courts. Three recent cases have applied Article 8 of the European Convention on Human Rights (ECHR) to this policing activity. Officers involved in the planning of these operations, filming of those who attend, and the analysing or retention of the footage must understand the impact of these cases on the legality of their actions.

Case 1: Wood

Wood v Commissioner of Police for the Metropolis [2009] EWCA Civ 414 concerned the filming and footage of the claimant on a single occasion. The claimant was involved in the organization called Campaign against Arms Trade (‘CAAT’). He had no convictions and had never been arrested as a result of any campaigning activities, or otherwise. He attended the annual general meeting (AGM) of a company involved in the arms industry, some weeks before the biennial exhibition in London, Defence Systems and Equipment International (‘DSEi’).

The commissioner believed there was a real possibility of unlawful activity at the AGM by some committed protestors. Officers were assigned to police the event and to film and photograph people attending who might be involved in unlawful activity.

Mr Wood was photographed outside the venue and was later identified from his photograph, which was retained pending the DSEi event. The defendant’s case was that the pictures were taken and retained so that (1) if disorder erupted and offences were committed, offenders could be identified, albeit at a later time; and (2) persons who might possibly commit public order offences at DSEi could be identified in advance. The images were to be reviewed after about a year and only retained if they had any “ongoing significant intelligence value”, something the Court felt was difficult to define precisely. The defendant asserted that, were it not for the legal challenge, the images of the claimant would have been destroyed after DSEi.

Mr Wood challenged the taking and retention of photographs of him, arguing that it was in breach of his private life rights as enshrined in Article 8. On appeal, it was necessary for the Court to determine (1) whether Mr Wood’s Article 8(1) right to privacy was infringed, and if so (2) if the infringement was in accordance with the law, necessary for the pursuit of one of the legitimate aims in Article 8(2) and proportionate.

The Court of Appeal confirmed that when considering an alleged breach of Article 8, the touchstone of the concept of a ‘private life’ is whether, on the basis of the specific facts, the person in question had a reasonable expectation of privacy. A major element of the defence to the claim was that as the incident took place in a public street, there was no reasonable expectation that Mr Wood would not be photographed.

The Court of Appeal agreed emphatically with the defendant’s assertion that the bare act of taking pictures, even by an agent of the state, is not of itself capable of engaging Article 8(1) unless there are aggravating circumstances. Such circumstances did not exist in that case.

However, the Court went on to emphasise that it was “not helpful” to distinguish the taking of photographs from their subsequent use. The Court agreed with the claimant that the police operation, from the taking of the pictures to their intended and actual use and retention, should be judged as a whole. Having done so, it decided, on the particular facts of the case, that the police action, unexplained at the time it happened, and carrying the implication that the images would be kept and subsequently used, was a sufficient intrusion by the state into the individual’s own space (or ‘integrity’) to amount to a prima facie violation of Article 8(1).

The Court of Appeal also found, in a majority decision, that the interference