In Mengesha v Commissioner of Police of the Metropolis [2013] EWHC 1695 (Admin) the High Court made explicit some of the limitations on how people who have been lawfully contained may be treated, in particular the imposition of conditions for their release.

In summary:

  • The Police cannot lawfully make the provision of personal details a general condition for the release of people from containment;
  • Nor can the Police lawfully require individuals to submit to being closely filmed on a camcorder for identification purposes as a condition for release;
  • The retention of photographs or film footage taken in such circumstances will be unlawful.

The Facts

On 30 November 2011, the Claimant was one of a crowd of approximately 100 people subjected to a containment by the Metropolitan Police in Panton Street, Central London. It was not disputed that the containment was justified because serious damage to property and a breach of the peace had already occurred, and officers reasonably apprehended that a further breach of the peace was imminent.

At the same time, an authorisation under s.60 of the Criminal Justice and Public Order Act 1994 [“CJPOA”] was in place. This permitted constables in uniform to stop any pedestrian and search him for offensive weapons or dangerous instruments, whether or not there were grounds for suspecting that that person was carrying such weapons or articles.

The officer in charge of the containment ordered that those who were being released would be filmed and asked for their details, with the aim of assisting the identification of those involved in criminal acts in the subsequent post-incident investigation. His aim was to prevent the containment being maintained for a longer period of time than was necessary,while offenders were identified within the crowd.

The Claimant brought a claim for judicial review, arguing that the conditions for her release from the containment – that she provide her personal details and that she be filmed – were imposed unlawfully, and in breach of her rights under Article 8 of the ECHR.

The Arguments

Initially the response of the Commissioner to the claim was to assert that this process of identification was “part and parcel” of the containment, describing it as a “necessary but very brief adjunct to the containment”. The Commissioner modified his position by the time of the hearing, and his arguments were, in summary:

  • Searching those contained: this was lawful as a s.60 CJPOA authorisation was in place (the Claimants did not seek to argue that it was unlawful);
  • Obtaining personal details: the Commissioner accepted there was no legal power to require the protestors to give their personal details, but argued that it was lawful to ask someone to give their details voluntarily;
  • Filming: similarly, the Commissioner accepted there was no power to require someone to consent to being filmed, but argued that filming was lawful, provided the individual consented.

The Commissioner argued that the Claimant had in fact consented to give her details and be filmed. He was, in effect, forced to do so in light of the concessions made above. The Court was absolutely clear that this concession was correctly made, stating at [12] that:

  • Section 64A of the Police and Criminal Evidence Act 1984 confers power to take photographs where a person is in a public place but under arrest for crime investigation purposes. It is unacceptable that a civilian photographer on instruction from the police should be entitled to obtain photographs for investigation and crime investigation purposes outwith the power conferred by s.64A of the 1984 Act as the price for leaving a containment.
  • Containment is not permissible for some purpose other than to prevent a breach of the peace which is taking place or reasonably thought to be imminent. In particular, it is not permitted as a means of ensuring that the identification of those contained has been obtained by questioning and by filming.
  • It followed that it was not lawful to require identification to be given and submission to filming as the price for release.

It was also emphasised at [13] that the police could not rely upon their undoubted statutory power to search pursuant to s.60 of PACE 1984, as this section confers no authority to obtain the name and address or other identification of those being searched.

The Decision

The Court had no doubt that the evidence established that the Claimant had not consented to either being done, stating at [8] that the evidence was “overwhelming that those leaving the containment were required to give their details and to be filmed before they were allowed to be released.”

The Court considered a video that was said by the Commissioner to demonstrate that the Claimant submitted to the process voluntarily, but which was found to demonstrate the opposite.

On the issue of filming and Article 8, the Court stated at [19]:

“In this case individuals not under arrest were required to be filmed individually in close-up, from front and back, and to give their names and addresses and dates of birth, to be linked with the future police use. There can be no doubt that in those circumstances Article 8 was engaged and it was incumbent upon the Commissioner to justify the collection and retention of the film and personal details.”

Having made it clear that the collection and retention of this information has to be justified, the Court observed two important matters at [17] and [20]:

“No policy, let alone any rules, has been devised or published setting out the circumstances in which such images and details may have been retained. For that reason alone the Commissioner rightly conceded this part of the claim.”

“Once Article 8 was engaged, it becomes apparent that the taking and retention of the images and personal details was not in accordance with the law”

It was inevitable that the Court would then decide (in a similar way to how the Court of Appeal reached its decision in Catt v Commissioner of Police [2013] EWCA Civ 192) that [20]: 

“Since there was no statutory power to take and retain the photographs and no arrangements, let alone any published policy applicable to such a case, the Commissioner cannot justify the retention of the images and personal details.”

Conclusion

There is, of course, a difference between the Claimant being compliant, even cooperative, and consenting voluntarily to what the police wanted her to do. This distinction became crucial to the case, once the Commissioner had conceded that a public order power to contain a person short of arrest does not carry with it a power to require that person’s details or to film them without their consent (at least, not intrusively – the general police powers to film protests having been considered recently by the Court of Appeal in Catt).

Here the Claimant was being detained, albeit lawfully. A decision had been taken that the crowd could gradually be released. However, if the Claimant were to actually leave the containment, she had no choice but to submit herself to being searched and/or giving her details. The Court confirmed that it is not realistic in these circumstances to regard a member of the public as acting voluntarily where the only alternative is continued confinement.

Nevertheless, the case has left open an issue that it seems likely will be back before the Courts before too long: whether a police officer would be acting unlawfully if he were to ask a member of the public for their personal details in circumstances which might suggest an obligation to comply. The Court stated that on this point it expressed “no view one way or the other”.