Case Law: Photography

On Thursday 21st May 2009, there was an interesting court case relating to photography, resulting in the police being required to delete photographs.

The emphasis should  be on “required” rather than “forced”.

The case revolves around pictures being taken of Andrew Wood, a member of a group which protests against the arms trade – Campaign Against Arms Trade (CAAT) – peacefully, without the violence associated with direct action groups.

Mr Wood was photographed as he left a meeting, by police photographers; they came very close to him to take his picture, the impression given is they were almost “paparazzi style” photographs. Mr Woods who has never been charged, arrested, or apparently linked to any violence, felt that the police should not retain this data. A case with clear echoes of the S and Marper v UK case.

Mr Wood the took a series of legal actions to get the photographs deleted, which the police initially refused to. Unlike the Marper case, where the UK courts supported the police and the case had to go to the ECHR before the DNA was deleted, the case was decided in favor of Mr Woods by the appeal courts in the UK.

Two out of three judges agreed there had been a disproportionate interference in the human right to privacy by the police,  and so were ordered to destroy the photographs. The right to privacy in the UK is guaranteed by Article 8 of the Human Rights Act.

The police don’t have to delete the data for a month, while they have the chance to consider an appeal to the House of Lords.

Mr Wood as photographed as he left the AGM of Reed Elsevier PLC, the parent company of Spearhead Exhibitions Ltd which runs the arms fairs for the industry. As Andrew Wood had a share in the company he was allowed to attend the meeting, and so was not committing any crime by being there.

Lord Justice Dyson stated that  “The retention by the police of photographs taken of persons who have not committed an offence, and who are not even suspected of having committed an offence, is always a serious matter…..The only justification advanced by the police for retaining the photographs for more than a few days after the meeting was the possibility that the appellant might attend and commit an offence at the Defence Systems and Equipment International fair several months later…..But in my judgment, even if due allowance is made for the margin of operational discretion, that justification does not bear scrutiny …”

Lord Collins of Mapesbury, the other agreeing judge, stated that “There was a very substantial police presence. When I first read the papers on this appeal, I was struck by the chilling effect on the exercise of lawful rights such a deployment would have …It is plain that the last word has yet to be said on the implications for civil liberties of the taking and retention of images in the modern surveillance society….This is not the case for the exploration of the wider, and very serious, human rights issues which arise when the State obtains and retains the images of persons who have committed no offence and are not suspected of having committed any offence.”

The Met response to the photography was “Overt photography helps us build a picture of who is involved in planning and organising any potential disorder or crime. It may also provide us with evidence that would be beneficial to any legal proceedings.

“There is nothing secretive or covert about the way we do this, and this practice is very well known and understood in protester circles. The Metropolitan Police will continue to do everything necessary to maintain order on London’s streets.

“The findings of this judgment provide a valuable set of guidelines for us to continue to work within and we are pleased that the Court of Appeal has found our use of overt photography to be lawful.”

If the police will delete the data, even if they are ordered to by the court, is a different matter.

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