The UK Supreme Court was divided 3-2 in the recent appeal of Re an application by JR 38 for Judicial Review ( UKSC 42) on whether Article 8 ECHR was engaged for a child aged 14 who was suspected of involvement in criminal rioting.
CCTV images of the appellant in the course of rioting were published in two newspapers as part of a police campaign to identify those involved in rioting and to deter future sectarian disturbances.
The majority held that Article 8 was not engaged, since there was no reasonable expectation of privacy (“REP”) which was the sole, objective criterion. They went on to hold that even if Article 8 had been engaged, the interference was justified for the reasons given by the minority.
The minority held that Article 8 was engaged since REP was only one factor in the assessment – other matters such as the age of the person concerned, the use to which the material was being put and its effect on the person (including possible stigmatisation) were all relevant considerations which all contributed to render Article 8 engaged in this case. Nevertheless the interference was justified since publication was solely for the prevention and detection of crime, struck a balance between the appellant’s and the community’s interests and because the police had only sought publication as a measure of last resort.
In mid-2010 following extensive sectarian rioting in Londonderry (46 incidents involving 75 young people committing over 100 offences in four months), the police obtained stills from CCTV footage of two riots which were published in the Derry Journal and Derry News newspapers at the request of the police as part of Operation Exposure. The stills included the appellant’s image but he was not formally identified as such until 2011 by which time the limitation period had expired and so no prosecution was commenced against him. He was aged 14 at the time.
Operation Exposure was designed to counteract sectarian violence at boundary parts of the city where each of the two main communities predominate. The police decision to request publication took into account a number of factors such as: the person’s apparent age, whether all other reasonable lines of inquiry had been pursued, the frequency of the offence concerned, whether it was better to leave the child unidentified or to seek to identify and then use criminal diversion methods (e.g. parental involvement), the risk of vigilante repercussions upon publication.
The Court was unanimous in concluding that if Article 8 was engaged then the interference was justified and proportionate (applying the Bank Mellat fourfold criteria). Clearly the objective behind publication was to both to prevent and detect crime. The “painstaking” steps and wide range of factors taken into account by the police before deciding to request publication demonstrated both a fair balance between the limited interference and the interests of the community and that publication was genuinely a measure of last resort.
The engagement of Article 8, however, sharply divided the Court. Lord Kerr (for the minority) noted that REP was the “touchstone” of private life (applying Campbell v MGN  2 AC 457). He observed that, even in Kinloch v HM Advocate  2 AC 93 – another case involving suspected criminal conduct in public – Lord Hope had nevertheless reiterated the zone of interaction with others in public that fell within the scope of private life. He accepted that Article 8 had the broadest potential scope of application and for the need to place proper boundaries on its application.
He also emphasised the limits of the REP test, which sits uncomfortably with the well-established need to give a child’s best interests prominence. He considered (applying PG v United Kingdom (2008) 46 EHRR 51) that REP was a significant but not necessarily conclusive factor in deciding whether Article 8 was engaged. In his view, other factors such as the potential or actual use being made of the image of a child were relevant to whether Article 8 was engaged (applying Reklos v Greece 27 BHRC 420). He reasoned that if disclosure of criminal convictions (obtained in a public court of law) can engage Article 8 (applying R(L) v Commissioner of Police  1 AC 410) it was hard to see how publication of photographs taken in public, when crime was only suspected, could not. And he noted that in Sciacca v Italy ((2006) 43 EHRR 20) the publication of the applicant’s photographs in newspapers when she was suspected of financial crime had been held to engage Article 8. He reiterated the now familiar international materials on the rights of the child which mandate the primacy but not paramountcy of the child’s best interests and the need to avoid stigmatisation in particular.
Critically, he interpreted the leading case of Von Hannover (No 1) ((2005) 40 EHRR 1) only as meaning that if REP was present that was a factor in favour of finding Article 8 was engaged, not that its absence precluded Article 8 from being in play. He thought that the use by Laws LJ of REP as a safeguard against the overuse of Article 8 in R (Wood) v Commissioner of Police ( 1 WLR 123) was based on a misreading of Von Hannover (No 1). He was bolstered in that conclusion by the fact that neither Lord Nicholls or Lord Hope in Campbell considered REP to be a sine qua non of private life engagement and that Campbell was a breach of confidence case anyway (in which expectation is more relevant).
In short, if REP was a touchstone that was to be distinguished from an “indispensable criterion for engagement [of Article 8]”. He also analysed Murray (which grapples with the effect of publication of children’s facial features) and held that it did not mandate a context-free assessment of whether there was a REP. He preferred the approach of Richards LJ in R (C) who had also thought Wood was over-rigid and had been overtaken by Strasbourg database cases (such as Marper v UK) in which REP was not used as a litmus. Having accepted that REP was only one (important) factor in determining privacy engagement, he went on to endorse Lord Sumption’s reservations about the REP test in the recent database case of Catt ( 2 WLR 664), a test which “begs the question what is the ‘privacy’ which may be the subject of a reasonable expectation?”
He concluded by reasoning that although the appellant (like that in Kinloch) did not have any REP because he was engaged in suspected criminal conduct in public, Article 8 was nevertheless engaged because of the particular use of the images taken from public observations, having particular regard to the potential effect that their publication might have on the child. He considered that “it would be facile to say that because he was rioting he cannot have expected that a right to respect for private life would be engaged and, on that account alone, it was not engaged. A child’s need for protection can go beyond what, if he was an adult, he would be reasonably entitled to expect.”
Somewhat tantalisingly Weller v Associated Newspapers ( EWHC 1163 (QB))– involving the publication of photographs of children (not suspected of any misconduct) taken in a public place which held that the parents’ conduct was a relevant factor (currently on appeal to the Court of Appeal) – was not referred to in the judgment.
Lord Toulson for the majority analysed Von Hannover and Wood and concluded that they did indeed mandate REP as a necessary condition for the engagement of Article 8. He endorsed Lord Nicholls observations in Campbell that the courts needed to guard against using as a touchstone a test which imported considerations which were properly part of the proportionality assessment rather than the engagement or ambit of Article 8. That, he held, meant that REP was an objective test – focussing on the sensibilities of a reasonable person who is the subject of the conduct complained of. He did not spell out what characteristics of the claimant (e.g. age etc.) are legitimately to be attributed to the reasonable person – a problem which has beset the use of the hypothetical person in many disparate areas. He recognised that shortcoming by holding that “there must obviously be some modification” in the case of a child who is too young to have a sufficient appreciation of the idea of privacy and cited Murray in support. He considered that Catt and Kinloch also supported the conclusion that REP was congruent with the engagement of Article 8 and that the dicta in PG about REP being a relevant not determinative factor could not be taken so far as to mean that, without a REP, Article 8 could nonetheless be engaged.
Having emphasised the objective nature of the test, he was keen to explain that it could nevertheless properly take account of all the circumstances of the case so that “the publication of a photograph of a young person acting in a criminal manner for the purpose of enabling the police to discover his identity may not fall within the scope of the protection of personal autonomy which is the purpose of article 8, but the publication of the same photograph for another purpose might”. Or, put another way, “When the authorities speak of a protected zone of interaction between a person and others, they are not referring to interaction in the form of public riot. That is not the kind of activity which article 8 exists to protect” and in that sense, in his view, the case was on all fours with Kinloch. He qualified that – explaining that whilst publication of photographs for the purpose of identification in the recent aftermath of suspect crime would not prima facie have any associated REP, re-publication of historic photographs of the same might do so.
Lord Clarke gave a concurring judgment with the majority – explaining that whilst the ECtHR had not used REP in database cases such as Marper “its analysis seems to me to be consistent with it”. He acknowledged that “in the light of the present state of the Strasbourg jurisprudence, I for my part would not go so far as to say that such a case [where personal autonomy was engaged without any REP] is impossible, the test of reasonable expectation is in my opinion relevant in this class of case”. He endorsed the flexible approach which had been taken in Murray (which he had decided when in the CA) which militated against the rigid objectivity of the REP test.
The judgment is highly significant both its extensive analysis of the proper approach to be taken in relation to Article 8 in public but also for its implications for misuse of private information cases, which will continue to develop in parallel. There remains real tension about the limits of the REP test – the minority echoing Lord Sumption’s reservation about the circularity of REP, exacerbated by the fact that the REP appears to exclude factors which may be high relevant in cases involving children. The minority use this shortcoming to reason that REP cannot be the sole determinative criterion; the majority maintain that the REP needs some modification to address that problem. At present, misuse of private information cases seek to reconcile that tension by accepting that special considerations attach to the accessing and dissemination of information relating to children – an approach which may offer weaker protection than the more structured approach under Article 8 when the public authority is required to accord the best interests of the child a very high status.
The fact that Lord Toulson, a highly respected privacy and confidentiality jurist, was in the majority only serves to heighten the extent of the divide, particularly when his reasoning relied on database cases such as Catt in which it was accepted that REP is not the sole criterion for engagement.
It is interesting to consider whether Lord Kerr’s focus on the use of the images taken in public, which thereby imports factors well beyond the REP associated with the activity in question, can be squared with Lord Sumption’s dicta in Catt that “mere observations cannot save perhaps in extreme circumstances engage Article 8”. There are rarely observations alone without any actual or potential use of those observations, images etc. so perhaps they do not clash directly. Lord Toulson’s acceptance that publication of images of children taken in public for purposes other than crime prevention / detection may engage Article 8 even where the test is REP is counter-intuitive – that seems to import the proportionality factors which are clearly in play at the use stage into the engagement phase: precisely the approach he advised against.
Given the extent of the division in JR 38, Weller in the Court of Appeal (listed in October) will be very closely watched. Given the now very uncertain status of privacy in public (especially when children are involved) it may be destined for the Supreme Court too.
Alex Bailin QC is a member of Matrix.