Wood v Commissioner of Police for the Metropolis

Factual and Procedural Background

This is an application for judicial review, brought with permission of Lord Justice Sedley in the Court of Appeal, challenging a decision by the Defendant's officers to photograph the Plaintiff and seek to obtain details of his identity at the Annual General Meeting (AGM) of Company A on 27 April 2005. The Plaintiff seeks declarations that the Defendant breached his rights under the European Convention on Human Rights (ECHR) by taking photographs and attempting to identify him, an order for destruction of any such photographs or records, and a declaration that the current police practice of overt photographic surveillance of political protesters is unlawful under Articles 8, 10, 11, and 14 of the ECHR. The Plaintiff also claims damages.

The Plaintiff was a media coordinator for an unincorporated association campaigning against the arms trade. He had no criminal convictions and had never been arrested. Company A was the parent company of an organiser of arms industry exhibitions. Prior demonstrations at Company A's premises had involved some criminal damage.

Prior to the AGM, police were informed that shares had been bought by members of the Plaintiff's association entitling them to attend the meeting. One individual with a proxy for a shareholder, "EA", had a history of unlawful activity against defence-related organisations. Police anticipated possible demonstrations or unlawful activity and deployed officers, including uniformed personnel and civilian photographers, around the meeting venue.

The Plaintiff attended the AGM with other association members, intending to learn about Company A's involvement with the arms industry and to ask questions. Two individuals, including EA, were ejected after chanting slogans, but the Plaintiff was not involved in any disturbance. After the meeting, the Plaintiff was photographed by a civilian police photographer at close proximity without being informed of the reason. He was also asked for his identity but declined to provide it, being told he was not obliged to do so. He and an associate were followed by officers for some time.

The police retained photographs under strict controls, typically for use by public order officers and only for limited purposes such as identifying participants in future events. The Plaintiff's identity was later ascertained by the police through company records and elimination. The police stated that the photographs would have been destroyed shortly after a subsequent event but for the ongoing proceedings.

The Plaintiff stated that he felt scared, intimidated, and upset by these events and was uncomfortable with the indefinite retention and possible use of information about him without consent or knowledge. The Defendant acknowledged the Plaintiff may have felt unsettled but disputed the extent of his distress.

Legal Issues Presented

1. Whether the taking of photographs of the Plaintiff constituted an interference with his rights under Article 8(1) of the ECHR;
2. Whether the retention and potential use of the photographs constituted such an interference;
3. If there was such interference, whether it was justified, specifically whether it was (a) in accordance with the law and (b) proportionate;
4. Whether there was interference with the Plaintiff's rights under Articles 10 and/or 11 of the ECHR and, if so, whether it was justified;
5. Whether there was a breach of Article 14 of the ECHR and, if so, whether that was justified.

Arguments of the Parties

Defendant's Arguments

• No relevant interference with the Plaintiff's Article 8 rights occurred; any interference was minimal and pursued the legitimate aim of preventing crime.
• The Plaintiff had no reasonable expectation of privacy attending the AGM as a media coordinator for a public campaign group.
• The Plaintiff was photographed based on association with a known individual with a criminal history, not arbitrarily.
• The photography was overt, not covert, and not part of compiling a national database.
• The retention and use of photographs were subject to rigorous internal controls and limited disclosure.
• The Plaintiff never asked why photographs were taken, and there was no publication or general disclosure of images.
• The taking and retention of photographs were lawful under common law police powers and controlled by public law principles.
• The Data Protection Act 1998 provided additional statutory controls over the processing and retention of such data.
• Any interference with rights was proportionate and justified given the legitimate policing aims and concerns about potential criminal activity.
• No interference occurred with the Plaintiff's rights under Articles 10 and 11, as the police actions did not restrict attendance or participation at the AGM.
• No breach of Article 14 occurred because the police actions were based on lawful concerns, not discrimination.

Plaintiff's Arguments

• The reasonable expectation of privacy was engaged; police taking targeted photographs at close range and retaining them is not an accepted practice.
• The taking of photographs and subsequent retention was part of systematic gathering of information about the association and its members.
• The Plaintiff felt scared, intimidated, and upset by the events and the indefinite retention and use of his images without consent.
• The Data Protection Act 1998 did not provide sufficient clarity or safeguards to justify the police conduct.
• The common law basis for police powers was not sufficiently precise, clear, or accessible to meet Article 8(2) requirements.
• The police conduct interfered with his rights under Articles 8, 10, 11, and 14 of the ECHR.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Campbell v MGN Ltd. [2004] AC 457	Reasonable expectation of privacy test; distinction between mere taking of photographs and publication causing interference with Article 8 rights.	Confirmed that mere taking of photographs in public does not usually engage Article 8; publication context is crucial.
Von Hannover v Germany (2005) 40 EHRR 1	Extension of Article 8 protection to photographs of private life even in public places; legitimate expectation of privacy and protection against arbitrary state interference.	Emphasised the need to balance private life against freedom of expression; found infringement where photos revealed private life without contributing to public debate.
Murray v Big Pictures (UK) Limited [2008] EWCA Civ 446	Reasonable expectation of privacy is broad and fact-sensitive; factors include claimant's attributes, nature and purpose of intrusion, consent, and impact.	Reinforced the importance of context and purpose in assessing privacy interference; applied to covert photography cases.
Gillan v Commr of Police for the Metropolis [2006] 2 AC 307	Determined threshold of significance for interference with Article 8 rights; upheld police powers as proportionate in context of preventing crime.	Supported view that lawful police intrusions may not engage Article 8 if proportionate and justified.
X v UK (1973) Decision 5877/72	Taking and retention of photographs at public protest for identification purposes did not interfere with Article 8 rights.	Used to support that police photography and retention for limited purposes is not an Article 8 interference.
Friedl v Austria (1995) 21 EHRR 83	Photographs at public demonstration taken and retained without identifying individuals did not breach Article 8.	Confirmed limited retention of images at public events is not an interference absent identification or data processing.
PG & JH v UK (2001) Appl. 44787/98	Systematic recording by police may engage Article 8; reasonable expectation of privacy affected by creation of permanent records.	Distinguished between mere observation and creation of files; relevant to retention of photographic records.
Perry v UK (2004) 39 EHRR 3	Covert video recording in police custody and subsequent use constituted interference with Article 8 rights.	Highlighted that covert surveillance and use beyond normal security purposes can engage Article 8.
Lupker v The Netherlands, Commission Application 18395/91	Use of lawfully obtained photographs by police for criminal investigation purposes does not infringe Article 8 absent wider publication.	Supported lawful police use and retention of photographs for investigation without Article 8 breach.
Rotaru v Romania, Application No. 28341/95	Systematic collection and retention of personal data by state can infringe Article 8 rights.	Distinguished lawful limited data retention from secret police files constituting interference.
R (S & Marper) v South Yorkshire Police [2004] 1 WLR 2196	Retention of DNA and fingerprint samples considered under Article 8; any interference minimal or justified.	Used analogously to assess retention of photographic data as minimal interference.
Rice v Connolly [1966] 2 QB 414	Police powers and obligations include taking steps to keep peace and prevent crime; no exhaustive definition but includes detection and bringing offenders to justice.	Supported common law basis for police taking and retaining photographs.
Murray v UK (1994) 19 EHRR 193	Lawfulness of conduct under common law can satisfy "in accordance with the law" requirement of Article 8(2).	Confirmed that lawful police conduct, even without statutory basis, can justify interference under Article 8(2).
Kay v Lambeth BC [2006] 2 AC 465	Domestic courts bound to follow higher court decisions even if in conflict with European Court decisions.	Reinforced obligation to follow domestic precedent in privacy and Article 8 cases.
Silver v UK (1983) 5 EHRR 347	Principles of precision, certainty, and accessibility in law for interference with rights.	Referenced in assessing adequacy of legal basis for police conduct.
Sunday Times v UK (1980) 2 EHRR 245	Standards for legal clarity and foreseeability in interference with rights.	Used to assess sufficiency of legal basis for police actions.
R (Prolife Alliance) v BBC [2004] 1 AC 185	Importance of freedom of political speech and scrutiny of restrictions.	Referenced in context of Articles 10 and 11 rights.

Court's Reasoning and Analysis

The Court began by assessing whether the taking of photographs constituted an interference with the Plaintiff’s Article 8(1) rights. It noted established jurisprudence that mere photography in public does not usually engage Article 8, particularly where there is no publication or dissemination of images. The Plaintiff’s attendance at the AGM as a media coordinator for a public campaign group reduced any reasonable expectation of privacy. The photography was overt, targeted based on association with an individual with a criminal history, and not part of a general dossier or national database.

The Court examined European cases including Von Hannover, which expanded privacy protections but focused on publication and intrusion into private life even in public contexts. It distinguished cases involving covert surveillance or publication from the present overt, limited use of photographs.

Regarding retention and use of photographs, the Court found no direct English precedent but relied on European cases where retention for limited investigatory purposes without public dissemination did not engage Article 8. It drew analogy with retention of DNA and fingerprint samples, which courts have treated as minimal interference. The Defendant’s evidence of strict controls and limited use reinforced this view.

On the question of justification under Article 8(2), the Court accepted the common law basis for police powers as sufficiently precise and accessible, reinforced by statutory controls under the Data Protection Act 1998. The police actions were proportionate, given the legitimate aim of preventing crime and disorder, the context of prior disturbances, and the Plaintiff’s association with a known offender.

The Court further held there was no interference with the Plaintiff’s rights under Articles 10 and 11, as the police did not restrict attendance or participation at the AGM and acted lawfully and with recognition of limits on their powers. The alleged intimidation did not amount to a breach.

Finally, Article 14 was not engaged because the police actions were based on lawful grounds unrelated to discrimination or political beliefs.

Holding and Implications

The Court DISMISSED the claim for judicial review.

The direct effect is that the Defendant’s actions in photographing, retaining, and seeking to identify the Plaintiff at the AGM did not breach the Plaintiff’s rights under Articles 8, 10, 11, or 14 of the European Convention on Human Rights. The decision affirms the legal principle that overt police photography and limited retention for investigatory purposes in public settings, when proportionate and lawful, do not constitute an unlawful interference with privacy or related Convention rights. No new precedent was established beyond the application of existing authority to these facts.