R (Mengesha) v Commissioner of Police of the Metropolis

The Administrative Court has upheld a judicial review challenge to police action at a demonstration in London in November 2011. The decision makes clear that police powers to prevent a breach of the peace cannot be used for other purposes such as intelligence gathering.

The Claimant, a legal observer at the demonstration, had been contained by police in Panton Street along with around a hundred other individuals following a breach of the peace. The police decided that the risk of a further breach of the peace had diminished and that everyone within the containment area should be searched using statutory powers before being released. It was also decided that those being released from the containment would be individually filmed and asked for their personal details (names, addresses and dates of birth).

The Court (Moses LJ and Wyn Williams J) held that the evidence was overwhelming that those leaving the containment were required to provide their details and submit to filming as the price for being released. The Court accepted that to impose such a requirement was unlawful and rejected the Defendant’s contention that the Claimant had acted voluntarily in giving her details and being filmed. Containment is not permissible for any 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 filming.

The Court further held that the retention of the Claimant’s images and personal details was unlawful, quite apart from the fact that they were unlawfully obtained. Individuals not under arrest were required to be filmed individually in close-up, from front and back, and to give their details, to be linked with future police use. Article 8 ECHR was engaged and it was incumbent on the Defendant to justify the collection and retention of the film and details. There were no arrangements, let alone any published policy, on this matter and the interference therefore could not be said to be “in accordance with the law”.

The judgment is available at:
http://www.bailii.org/ew/cases/EWHC/Admin/2013/1695.html

Michael Fordham QC and Iain Steele, instructed by Fiona McNelis and Charlie Burnett of Christian Khan, acted for the Claimant.