CEDH · CASELAW;COMMUNICATEDCASES;ENG — 19 mai 2016

.s800EAC49 { font-size:12pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s76CF415B { page-break-before:always; clear:both }   Communicated on 19 May 2016   FIRST SECTION Application no. 43514/15 John Oldroyd CATT against the United Kingdom lodged on 2 September 2015 STATEMENT OF FACTS The applicant, Mr John Oldroyd Catt, is a British national, who was born in 1925 and lives in Brighton. He is represented before the Court by Mr   S.   Dutta of Bhatt Murphy, a firm of solicitors based in London. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The background facts The applicant has been active in the peace movement since 1948 and has been a regular attender at public demonstrations since then. The police routinely collect information at public demonstrations. Each incident is recorded in an information report, which generally contains a brief description of what occurred and the names of those attending, if known. Some individuals are the subject of a “nominal record” which collects together information reports referring to them. Police forces create organisations to coordinate their response to threats which transcend the limits of individual, local police areas. A National Coordinator for Domestic Extremism is responsible for a number of units which coordinate the police response to domestic extremism. One of these is the National Domestic Extremism and Disorder Intelligence Unit, formerly known as National Public Order Intelligence Unit. It supports local police forces by gathering, evaluating and disseminating among police forces intelligence relating to threats to public order, including those arising from domestic extremism. Information reports and nominal records created in respect of demonstrations are stored on a database called the National Special Branch Intelligence System, but often referred to as the “Domestic Extremism Database”. At the relevant time, nominal records and information reports were periodically reviewed for retention or deletion. Photographs were reviewed automatically every three years. In 2005 the applicant began participating in demonstrations organised by Smash EDO. The object of Smash EDO was to close down the activities in the United Kingdom of EDO MBM Technology Ltd, a United States-owned company which manufactured weapons and weapon components and had a factory in Brighton. Disorder and criminality were features of a number of Smash EDO protests. Recorded crimes associated with the group’s operations included assaults on police officers, sometimes by organised groups (“black blocs”) who arrived with missiles and other weapons, padding and body armour. They also included extensive and repeated criminal damage to EDO premises by smashing windows, throwing fireworks and glass bottles of paint, forcibly entering premises and breaking equipment; damage to cars belonging to EDO employees; and harassment and intimidation of staff. Smash EDO protests therefore attracted a substantial policing presence. The applicant was twice arrested at Smash EDO demonstrations for obstructing the public highway but has never been convicted of any offence. From March 2005, the applicant began to appear in information reports relating to Smash EDO protests in Brighton. As a result of his being identified on these occasions, he also occasionally appeared in information reports relating to other protests in which he participated. At one stage, a nominal record in respect of the applicant was created but it was subsequently deleted on an unknown date. In March 2010 the applicant made a subject access request to the police under section 7 of the Data Protection Act 1998 (see “Relevant domestic law and practice”, below) for information relating to him. Sixty-six entries from nominal records for other individuals and information reports which incidentally mentioned him, concerning incidents between March 2005 and October 2009, were disclosed to him. Most related to demonstrations at the office of EDO MBM Technology Ltd but thirteen entries related to other demonstrations. They included, for example, the recording of his attendance at the Trades Union Congress (“TUC”) Conference in Brighton in September 2006, at a demonstration at the Labour Party Conference in Bournemouth in September 2007, at a pro-Gaza demonstration in Brighton in January 2009 and at a demonstration against “New Labour” organised by a number of trade unions in September 2009. In the great majority of cases, all that was recorded about Mr Catt was his presence, date of birth and address. In some cases his appearance was also described. A photograph of the applicant taken at a demonstration in September 2007 was also disclosed to him in response to his subject access request. Retention of the applicant’s photograph came up for automatic review in July 2010. The photograph was deleted on the basis that it was not necessary to retain it since the applicant had not organised or been involved in any actions which had resulted in arrest since the photograph was taken, he had no recorded convictions and he no longer appeared to be involved in the coordination of Smash EDO events. 2.     The domestic proceedings In August 2010 the applicant asked the Association of Chief Police Officers (“ACPO”) to delete entries from nominal records and information reports which mentioned him. In September 2010 ACPO declined to do so. On 17 November 2010 the applicant issued proceedings against ACPO for judicial review of the refusal to delete the data. He contended that the retention of his data was not “necessary” within the meaning of Article 8 § 2 of the Convention. Permission to seek judicial review was granted in March 2011. (a)     Proceedings before the High Court In a witness statement dated 6 June 2011 (“the Tudway statement”) prepared in the context of the proceedings before the High Court, the then National Coordinator explained the functions of the National Public Order Intelligence Unit and the position as regards retention of data relating to the applicant. In his witness statement, the National Coordinator clarified that the material which had been disclosed to the applicant following his subject access request was not all the material held in respect of the applicant: a considerable amount of further information had not been disclosed on the grounds that disclosure would prejudice the investigation or detection of crime and that the material was thus exempt from disclosure under section   29 of the Data Protection Act (see “Relevant domestic law and practice”, below). After explaining the nature of his activities and the various units supervised by him, the National Coordinator continued: “16. The term ‘domestic extremism’ is not prescribed by law. It is a descriptor generally used by the police service and partners to describe the activity of individuals or groups who carry out criminal acts of direct action to further their protest campaigns, outside the democratic process.” He explained that as National Coordinator he sought to strike an appropriate balance among the rights of citizens to peaceful protest, the rights of a lawful business and its employees to continue working without unlawful disruption or intimidation and the rights of other members of a community to continue their daily lives without excessive disruption. He noted that under the Human Rights Act 1998 (see “Relevant domestic law and practice”, below), the police service had a duty to act in a manner compatible with Convention rights, and that Articles 10 and 11 were particularly relevant to his work as they were closely related to protest. He further noted that the units under his command were involved in the processing of sensitive personal data and were required to do so in a manner compatible with the requirements of the Data Protection Act, including ensuring that personal data were only held where this was necessary for policing purposes. He went on to describe how police forces processed such data, and emphasised that the use of intelligence as information for action in policing was perhaps the most fundamental tool available in policing, without which the aim of policing to protect society from crime and disorder would, he said, surely fail. He explained: “34. Intelligence allows managers and individual officers to make measured decisions about risk, from the largest scale national operations right down to the individual decisions officers sometimes have to make to intervene immediately or to call for further assistance to do so effectively. In order to properly understand and mitigate risk, the police service need intelligent product in some form or other, to allow such decisions to be made. ... 37. When being called upon to make difficult decisions regarding resourcing larger policing operations, the ability of investigators to identify relationships within protest groups, individuals associated with the use of certain tactics, propensity to violence, disorderly behaviour or organised coordinated actions allows those charged with ensuring that the balance between facilitating lawful protest and protecting public safety can make well-informed decisions.” The National Coordinator provided an example of how intelligence reports had assisted in policing a Smash EDO protest in 2010. He further explained that at larger demonstrations there were clearly individuals intent on confrontational protest and that the occurrence of violence at Smash EDO events was therefore predictable. Numerous arrests had been made at such events and the National Public Order Intelligence Unit was of the view that the recording of information and intelligence at such events was necessary and proportionate so that the police could make effective threat and risk assessments and secure public safety, prevent crime and disorder and protect the rights and freedoms of others. He explained that, very often, the police did not retain the information if no offences had occurred and the demonstration was a one-off event. However, where a demonstration was part of a regular and long-running campaign which gave rise to repeated acts of crime and disorder, the need to retain information increased. Even though the applicant had not been convicted of any offence, he associated closely with violent members of Smash EDO and knowledge of this association was of intelligence value. The National Coordinator confirmed that, in his view, the applicant’s data were being processed lawfully and fairly. Information from 21 March 2005 to 28 October 2009 concerned his connection to demonstrations and protests generally relating to Smash EDO. It was necessary to retain that data in light of the organisation’s continuing campaign and criminality. Restrictions were in place in respect of access to intelligence reports. An audit trail provided information as to who had accessed the intelligence, when it was accessed and to whom it had been disseminated. The National Coordinator confirmed that the applicant’s data had not been disclosed outside the police service. In January 2012, HM Inspectorate of Constabulary published a report on undercover police operations designed to obtain intelligence about protest movements. The report concluded that information was being unnecessarily retained in police records. Although the report was concerned with covertly obtained intelligence, it led to an extensive review of the database covering overtly obtained intelligence as well, so as to ensure that its continued retention was justified. This resulted in the deletion of a large number of nominal records and information reports. The number of nominal reports and information reports which mentioned the applicant was reduced to two. Also in January 2012, information was disclosed to the applicant about three further information reports mentioning him, which had been received in July 2011. A hearing in the judicial review proceedings took place on 9 February 2012. With the agreement of the parties, the Commissioner of Police of the Metropolis was joined as a defendant. The High Court handed down its judgment on 30 May 2012. The court considered that Article 8 was not engaged in the case and that, even if it was, the interference was justified under Article 8 § 2. The applicant was granted permission to appeal by the Court of Appeal on 31 October 2012. (b)     Proceedings before the Court of Appeal On 14 March 2013 the Court of Appeal unanimously allowed the appeal. It found that the inclusion of the applicant’s personal data in the database constituted an interference with his Article 8 rights which was not justified. The court said that it did not doubt the importance to modern policing of detailed intelligence gathering and that it accepted the need for caution before overriding the judgment of the police about what information was likely to assist them in their task. It noted that, for present purposes, that task was to obtain a better understanding of how Smash EDO was organised in order to be able to forecast the place and nature of its next protest and to anticipate the number of people likely to attend and the tactics they were likely to adopt. The court said that it was “not easy to understand how the information currently held on Mr Catt can provide any assistance in relation to any of those matters”. It referred to the comment in the Tudway statement that it was valuable to have information about the applicant’s attendance at protests because he associated with those who had a propensity to violence and crime. However, it considered that the statement did not explain why that was so, given that the applicant had been attending similar protests for many years without its being suggested that he had indulged in criminal activity or actively encouraged those that did. The court continued: “44. ... The systematic collection, processing and retention on a searchable database of personal information, even of a relatively routine kind, involves a significant interference with the right to respect for private life. It can be justified by showing that it serves the public interest in a sufficiently important way, but in this case the respondent has not in our view shown that the value of the information is sufficient to justify its continued retention. It is striking that Mr Tudway does not say that the information held on Mr Catt over many years has in fact been of any assistance to the police at all. The Divisional Court considered that it was not practically possible to weed out from time to time information held on particular individuals. There is, however, no evidence to support this conclusion and we are not satisfied that it is correct. It should not be overlooked that the burden of proving that the interference with Mr Catt’s article 8 rights is justified rests on the respondent. 45. That leaves the question whether the interference with Mr Catt’s rights is in accordance with the law. This is very much a live issue given the relatively vague nature of some aspects of the regime contained in the MoPI Code and Guidance and the criticisms voiced by the Divisional Court in C (paragraph [54]) [see “Relevant domestic law and practice”, below] and by the Strasbourg court in MM v United Kingdom (2012) (Application No. 24029/07). However, in the light of the conclusion to which we have come on the question of proportionality it is unnecessary for us to reach a final decision on the point.” (c)     Proceedings before the Supreme Court The Supreme Court granted the Commissioner and ACPO leave to appeal. On 4 March 2015 it upheld the appeal by a majority of four justices to one. All five justices agreed that Article 8 was applicable and that retention of the data amounted to an interference with the applicant’s rights under that Article. Lord Sumption delivered the leading opinion for the majority. He set out the applicable legal framework for collection and retention of data. After reviewing the requirements for “lawfulness” under Article 8 of the Convention, by reference to S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 99, ECHR 2008, he concluded that the interference was in accordance with the law. He noted that the Data Protection Act laid down principles that were germane and directly applicable to police information and contained a framework for their enforcement. These principles were supplemented by a statutory Code of Practice and administrative Guidance (see “Relevant domestic law and practice”, below), compliance with which was mandatory. While, inevitably, there were discretionary elements in the scheme, their ambit was limited. Lord Sumption considered the applicant’s argument that the Code of Practice and the Guidance did not enable him to know precisely what data would be obtained and stored or for how long to be unrealistic. He explained that the infinite variety of situations in which issues of compliance might arise and the inevitable element of judgment involved in assessing them made complete codification impossible. However, he noted, any person who thought that the police held personal information about him could seek access to it under section 7 of the Data Protection Act and, if he objected to its retention or use, could bring the matter before the Information Commissioner. Lord Sumption then turned to consider the proportionality of the interference. He observed that political protest was a basic right recognised by the common law and protected by Articles 10 and 11 of the Convention. He summarised the facts of the applicant’s case, including the nature of Smash EDO’s activities and the applicant’s attendance at public demonstrations, and the framework for police collection and retention of data in this context. He concluded that the retention of information, including some which related to persons such as the applicant against whom no criminality was alleged, was justified. The starting point, in his view, was the nature and extent of the invasion of privacy involved in the retention of information of this kind, which he described as minor. While the information stored was personal information because it related to individuals, it was in no sense intimate or sensitive information. Rather, it was information about the overt activities in public places of individuals whose main object in attending the events in question was to draw public attention to their support for a cause. Although the collation of the information in the form in which it appeared in police records was not publicly available, the primary facts recorded were and always had been in the public domain; no intrusive procedures had been used to discover and record them. Lord Sumption further considered that the retention in a nominal record or information report of information about third persons such as the applicant did not carry any stigma of suspicion or guilt. It did not imply that all those mentioned as participating in events such as Smash EDO protests were being characterised as extremists. It was further noteworthy that the material was not usable or disclosable for any purpose other than police purposes, except as a result of an access request by the subject under the Data Protection Act. It was not used for political purposes or for any kind of victimisation of dissidents and was not available to potential employers. The material was also periodically reviewed for retention or deletion according to rational and proportionate criteria based on an assessment of danger to the public and value for policing purposes. Lord Sumption next considered why it was necessary to retain such material at all, especially in the case of a person like the applicant who had a clean record and for whom violent criminality was a very remote prospect. He referred to the Tudway statement, and made the following observations concerning the purposes of retention: “(1) It is retained in order to enable the police to make a more informed assessment of the risks and the threats to public order associated with demonstrations forming part of an identifiable campaign, and the scale and nature of the police response which may be necessary in future. (2) It is retained in order to investigate criminal offences where there have been any, and to identify potential witnesses and victims. (3) It is retained in order to study the leadership, organisation, tactics and methods of protest groups which have been persistently associated with violence, and other protest groups associated with them. Links between protest groups are potentially important ... There is considerable cross-fertilisation of ideas between different extremist causes on tactics and methods.” These, he said, were all proper policing purposes. He noted that the evidence of the police was that a significant contribution was made to all of these purposes by the retention of information of this kind. That evidence was supported by illustrative examples, and the court had no basis on which to challenge that assessment. The proper performance of these functions was important not only in order to assist the prevention and detection of crime associated with public demonstrations, but to enable the great majority of public demonstrations which were peaceful and lawful to take place without incident and without an overbearing police presence. He continued: “31. These points need to be considered in the light of some basic, and perhaps obvious, facts about the nature of intelligence-gathering. Most intelligence is necessarily acquired in the first instance indiscriminately. Its value can only be judged in hindsight, as subsequent analysis for particular purposes discloses a relevant pattern. The picture which is thus formed is in the nature of things a developing one, and there is not always a particular point of time at which one can say that any one piece in the jigsaw is irrelevant. The most that can be done is to assess whether the value of the material is proportionate to the gravity of the threat to the public. This is the principle on which the review procedures are required to be conducted by the Code of Practice and the successive editions of the Guidance. The fact that some of the information recorded in the database relates to people like Mr Catt who have not committed and are not likely to commit offences does not make it irrelevant for legitimate policing purposes. The composition, organisation and leadership of protest groups who are persistently associated with violence and criminality at public demonstrations is a matter of proper interest to the police even if some of the individuals in question are not themselves involved in any criminality. The longer-term consequences of restricting the availability of this resource to the police would potentially be very serious. It would adversely affect police operations directed against far less benign spirits than Mr Catt. Organised crime, terrorism, drug distribution and football hooliganism are all obvious examples. One cannot look at an issue of this kind simply in relation to Mr Catt.” Lord Sumption added that even if it were consistent with the purpose and proper use of the database to exclude people like the applicant from it, the labour involved would be disproportionate to the value of the exercise to them. To go through all the nominal records not simply in order to review the retention of information relating to the subject of the record but to examine the individual position of every other person mentioned in it would, Lord Sumption said, be a major administrative exercise. The alternative of not retaining information in a nominal record about any other individual would significantly undermine the value of the record. In conclusion, Lord Sumption was of the view that sufficient safeguards existed to ensure that personal information was not retained for longer than required for the purpose of maintaining public order and preventing or detecting crime, and that disclosure to third parties was properly restricted. Lord Toulson, dissenting, agreed that the collection and retention of the data by the police was in accordance with the law. However, he considered that retention of the data was disproportionate. He explained that he had no difficulty in accepting in general terms the explanation given in the Tudway statement, but that there had to be limits, particularly in the case of a person who had never been accused of violence and had been assessed not to be a threat. The Tudway statement did not explain why it was thought necessary to maintain for many years after the event information on someone whom the police had concluded, as they had in July 2010, was not known to have acted violently and did not appear to be involved in the coordination of the relevant events. Nor did it explain why it was thought necessary and proportionate to keep details of the applicant’s attendance at other political protest events such as the Labour Party conference and the TUC conference. Lord Toulson agreed with the Court of Appeal that the Commissioner had not shown that the value of the information relating to the applicant was sufficient to justify its continued retention. As to the suggestion that it would place too great a burden on the police to undertake frequent reviews, Lord Toulson pointed out that there was no evidence from the police that this would be over-burdensome. On the contrary, he said, the thrust of the evidence was that they did carry out regular reviews so there was nothing to indicate that deleting their historic records of the applicant’s attendances at protest events would create any real burden. Lord Toulson accepted that, when investigating serious organised crime, it was necessary for the police to be able to collate and keep records of the details of their investigations. However, he did not agree that there was any risk of that being hampered by upholding the decision of the Court of Appeal in the applicant’s case. While the court should be slow to disagree with the evaluation of the potential usefulness of evidence by the police if a clear reason for it had been advanced, on the facts of this case Lord Toulson could not see what value they had identified by keeping indefinitely a record of the applicant’s attendances at events where he had done no more than exercise his democratic right of peaceful protest. Lord Toulson concluded: “69. One might question why it really matters, if there is no risk of the police making inappropriate disclosure of the information to others. It matters because in modern society the state has very extensive powers of keeping records on its citizens. If a citizen’s activities are lawful, they should be free from the state keeping a record of them unless, and then only for as long as, such a record really needs to be kept in the public interest.” B.     Relevant domestic law and practice 1.     Power to collect and retain data At common law the police have the power to obtain and store information for policing purposes. These powers do not authorise intrusive methods of obtaining information. 2.     The processing of personal data The Data Protection Act 1998 regulates the processing of personal data. It requires that the processing of data comply with the “data protection principles” in Schedule 1 to the Act. Principle 1 provides that personal data may not be “processed” unless it is necessary for a relevant purpose. In the case of the police, the relevant purposes are the administration of justice and the exercise of any other function of a public nature exercised in the public interest. Principle 2 provides that personal data may be obtained only for lawful purposes and may not be further “processed” in a manner incompatible with those purposes. Principle 3 provides that the data must be “adequate, relevant and not excessive” for the relevant purpose. Principle 5 provides that the data may not be kept for longer than is necessary for those purposes. Principle 7 provides that proper and proportionate measures must be taken against the unauthorised or unlawful “processing” of the data. Section 7 of the Act gives the data subject the right to access to any personal data concerning him. This is subject to an exception under section   29 for personal data processed for the purpose of, inter alia , preventing or detecting crime or apprehending or prosecuting offenders. The effect of the exception is to protect information relating to current police investigations or operations. Sections 13 and 14 enable individuals to bring complaints about the processing of personal data either in the courts or by way of complaint to the Information Commissioner. The relief available includes damages. Under section 39A of the Police Act 1996, the Secretary of State is empowered to issue codes of practice for the purpose of promoting the efficiency and effectiveness of police forces. A Code of Practice on the management of police information (“MoPI Code of Practice”), based on the provisions of the Data Protection Act, was issued by the Secretary of State in July 2005. Under the Code, handling of police information is limited to “police purposes”. These are defined at paragraph 2.2 as protecting life and property, preserving order, preventing crime, bringing offenders to justice and performing any legal duty or responsibility of the police. Subsequent provisions of the Code deal with the use, review and deletion of information originally recorded for police purposes. Paragraph 4.7 provides for the sharing of information within the police service if it is required for police purposes. Paragraph 4.8 allows the sharing of information outside the service on the authority of a chief officer of police if he is satisfied that it is reasonable and lawful to do so for police purposes. Paragraph 4.10 imposes a duty directly on those receiving information in these ways to use it only for the purpose for which it was supplied. Under paragraphs 4.5 and 4.6, information originally recorded for police purposes must be periodically reviewed. At each review the likelihood that it will be used for police purposes should be assessed and it should be considered for retention or deletion. The MoPI Code of Practice provides for more detailed provision to be made by way of guidance. Guidance on the Management of Police Information (“MoPI Guidance”) was originally issued by ACPO in 2006 and updated by a new edition in 2010. It was later superseded by the Authorised Professional Practice: Information Management – Retention, review and disposal, published by the College of Policing in 2013. Section 7 of the 2010 MoPI Guidance deals with the review of information for retention or disposal. It requires police information to be managed in compliance with the Convention, the Human Rights Act and the Data Protection Act. Paragraph 7.1 begins: “Reviewing information held by forces to determine its adequacy and continuing necessity for a policing purpose is a reliable means of meeting the requirements of the Data Protection Act. Review procedures should be practical, risk focused and able to identify information which is valuable to the policing purpose and needs to be retained. Review procedures should not be overly complex but should be as straightforward as is operationally possible.” Paragraph 7.4 provides: “All records which are accurate, adequate, up to date and necessary for policing purposes will be held for a minimum of six years from the date of creation. This six-year minimum helps to ensure that forces have sufficient information to identify offending patterns over time, and helps guard against individuals’ efforts to avoid detection for lengthy periods. Beyond the six-year period, there is a requirement to review whether it is still necessary to keep the record for a policing purpose. The review process specifies that forces may retain records only for as long as they are necessary.” Paragraph 7.3.1 provides that the object of the review is to ensure that there is a continuing policing purpose for holding the record, that the record is adequate, up-to-date and not excessive, that the Data Protection Act is complied with, and that the assessment of the level of risk that the person presents is correct. A number of detailed criteria for carrying out this exercise are set out. Records are required to be subjected to an initial evaluation and then kept for a minimum of six years. Thereafter, they are subject to “triggered reviews”, when information is added about the person in question, a statutory demand for access or disclosure is received or a request for information is made by another law enforcement agency; and “scheduled reviews”, which occur automatically at intervals varying with the nature of the information and the gravity of the risk. The criteria for retention or deletion are directed to the risk of harm to the public or to vulnerable sections of the public. Records are retained indefinitely only in the case of persons convicted or suspected of involvement in offences involving the highest level of danger to the public. Information which is no longer required must be deleted. Substantially similar provisions appear in the current Guidance of 2013. Paragraph 7.7 of the MoPI Guidance explains the need to collect and retain intelligence: “The retention of information relating to criminal activity and known and suspected offenders allows the Police Service to develop a more proactive approach to policing. By contributing to the identification of criminal patterns and threats and helping to prioritise the subsequent deployment of policing resources, information retention assists forces to prevent and detect crime and protect the public.” In R (C) v Commissioner of Police of the Metropolis [2012] EWHC 1681 (Admin), the Divisional Court was called upon to examine the regime for retention and destruction of fingerprints and DNA samples following this Court’s judgment in S. and Marper , cited above. It accepted that the MoPI Code of Practice and the MoPI Guidance provided a much more structured system than was under consideration by this Court in S. and Marper , cited above, and that both documents drew some distinction between different categories of offences. Nevertheless, the court considered that the Code and Guidance suffered from deficiencies of much the same kind as those that had led to the adverse finding in S. and Marper itself. It noted in particular (at paragraph 54) that: “(1) No adequate distinction is drawn between the convicted and those who are either not charged ... or are charged but acquitted. There is nothing to meet the concern expressed by the Strasbourg court about the risk of stigmatisation of those entitled to the presumption of innocence, or the perception that they are not being treated as innocent ... (2) Retention of the photographs is on any view for a long period (a minimum of 6   years), is likely in practice to be much longer ... and is potentially indefinite. (3) The particular concern of the Strasbourg court that retention of unconvicted persons’ data may be especially harmful in the case of minors applies here too ...” COMPLAINT The applicant complains under Article 8 of the Convention about the systematic collection and retention by the police of electronic data concerning a person who has exercised his rights to freedom of expression and protest and who has not committed any crime. He argues that the Domestic Extremism Database does not provide sufficient safeguards so as to be in accordance with the law and that retention of his data is not proportionate. QUESTIONS TO THE PARTIES 1.     Since January 2012, have any personal data pertaining to the applicant’s participation in events other than those organised by Smash EDO been retained in the Domestic Extremism Database?   2.     Would deletion of personal data pertaining to those not involved in any criminal activities from nominal records concerning third persons and from information reports be unduly burdensome for the police?   3.     Is the retention of the applicant’s personal data in the Domestic Extremism Database “in accordance with the law” and “necessary in a democratic society” (Article 8 § 2 of the Convention)?