West Law Report


Last Updated: 3:27PM BST 04/06/2008
Queen’s Bench Division (Admin) McCombe J May 22, 2008
Photographs – Retention – Right to respect for private and family life – Surveillance – Police photographing individuals in streets – Breaches of art. 8 European Convention on Human Rights 1950 – Art. 8 European Convention on Human Rights 1950


The claimant (W) applied for judicial review of the decision of the defendant police commissioner’s officers to photograph him whilst he attended the Annual General Meeting of a third party company (R). At the relevant time W was a media co-ordinator employed by an unincorporated association (C) that campaigned against the arms industry. R, through a subsidiary company, organised trade fairs for various industries, including the arms industry. Over the years R’s offices in the United Kingdom had been subjected to demonstrations, some involving criminal damage. It became known to R that a number of individuals opposed to the arms industry intended to attend R’s AGM, and it informed the police. The commissioner took the view that there was a real possibility of a demonstration at the AGM and that unlawful activity might occur. He decided to authorise the deployment of police officers with a civilian photographer around the hotel where the AGM was taking place. Those officers, having observed W in the company of a known arms industry protestor, decided to photograph him. The police subsequently discovered W’s identity from the photographs and retained them. W submitted that the taking and the retention of photographs by the police officers amounted to an unjustified interference with his right to respect for privacy under the European Convention on Human Rights 1950 art. 8. The commissioner submitted that art. 8 was not engaged as W had been photographed, not in his private capacity, but as a media officer of C, which had been conducting a legitimate but public campaign against R, so that W could have had no reasonable expectation of privacy and, further, that W had not been photographed randomly or arbitrarily, but in the light of past offences that had been committed against R, and in the light of W’s association, on the instant occasion, with the known protestor. Additionally, the commissioner argued that the photography had been overt and that the photographs were retained, not for the compilation of a national database or for general publication, but for the purposes of identifying at future events persons who had been involved in unlawful activity.


Whether the taking and the retention of photographs by police officers of W amounted to an unjustified interference with W’s right to respect for privacy under the European Convention on Human Rights 1950 art. 8.

HELD (application refused)

There was no interference with W’s rights under art. 8(1) of the Convention by the taking and retention of the photographs. The English courts at the highest level had adopted a very robust approach to questions of interference with rights under art. 8(1) in relation to photographs in public places and their subsequent retention, and in relation to the retention of intimate samples for proper police purposes in assisting in the detection of crime. Adopting the “reasonable expectation” of privacy test in regard to disclosure of photographic material in Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457 and the views of the House of Lords concerning, firstly, the stop and search powers in R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12, [2006] 2 AC 307 and, secondly, the retention of DNA samples in R (S) v Chief Constable of South Yorkshire [2002] EWHC 478 (Admin), [2002] Po LR 273, it was difficult to see how the taking and retention of the photographs in the instant case could be an interference with W’s rights under art. 8. On the facts, W could have little expectation of privacy generally in relation to his attendance at R’s AGM. He was attending as a media co-ordinator of a high-profile national pressure group. One of C’s members was actively and publicly canvassing those attending the meeting. R was a company that had been the victim of criminal activity in the conduct of its lawful business in the past. It would not have been surprising if press interest had led to photography of those attending, irrespective of police interest. W was photographed in a public street, in circumstances in which police presence could not have been unexpected by W or anyone else. The images were to be retained, without general disclosure, for very limited purposes. Their retention was not part of the compilation of a general dossier of information concerning W of the type that had been held in the past to constitute an interference with art. 8 rights.

Martin Westgate (instructed by Liberty) for the claimant. Sam Grodzinski (instructed by in-house solicitor) for the defendant.


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