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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Martin v. McGuiness [2003] ScotCS 96 (2 April 2003) URL: https://www.bailii.org/scot/cases/ScotCS/2003/96.html Cite as: 2003 SCLR 548, [2003] ScotCS 96, 2003 SLT 1424 |
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD BONOMY in the cause ROBERT MARTIN Pursuer; against JOHN McGUINESS Defender:
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Pursuer: Summers; Henderson Boyd Jackson, W.S.
Defender: McNeil, Q.C., J.G. Thomson; HBM Sayers
2 April 2003
THE ISSUES
ADMISSIBILITY OF EVIDENCE OBTAINED BY PRIVATE INVESTIGATOR AT PURSUER'S HOME
"The report of Mr Watt, the accompanying video and any other evidence he or Messrs Milligan or Loan may give to the extent that it arises from surveillance of or entry into the pursuer's property and conversation with the pursuer's wife should not be admitted into evidence because in so doing the Court would be in breach of Section 6(1) of the Human Rights Act 1988"
Although there are no other averments about Messrs Milligan and Loan, I understand that they, along with Watt who is referred to in Article 4 and Answer 4, carried out inquiries and surveillance at the pursuer's home. The pursuer's contention that the evidence should be excluded is founded squarely on Section 6(1) of the Act which provides:
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right."
"Public authority" is defined in Section 6(3) and (4) as follows:
"(3) In this section 'public authority' includes -
(a) A court or tribunal, and
(b) Any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
(4) In sub-section (3) 'Parliament' does not include the House of Lords in its judicial capacity."
It is plain from the inclusion of the House of Lords in its judicial capacity within the definition of a "public authority" that all courts or tribunals fall within that expression, not only when exercising administrative functions but also when adjudicating in litigation.
"1. Everyone has the right to respect for private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
While the defender's principal position is that the pursuer has not averred circumstances which amount to an infringement of Article 8.1, he presents that case on two bases. In the first place he submits that what is averred about the conduct of the investigators is not capable of being interpreted as a failure to respect the pursuer's private and family life. As an alternative he submits that, even if at first blush the conduct could be said to be capable of being viewed as an infringement of Article 8.1, that could not be said to be the case here since, firstly, the pursuer could have no "reasonable expectation" not to have inquiry and surveillance carried out at or near his home, having made a claim for damages against the defender, and secondly, under reference to Rees v United Kingdom (1986) 9 E.H.R.R. 56 at paras. 35 and 37 and Lopez Ostra v Spain (1994) 20 E.H.R.R. 277 at para. 51, it is necessary to strike a fair balance between the interest of the pursuer in the protection of his privacy and the competing interest of not only the defender to protect his own assets from an inflated claim but the interests of society in general in ensuring the orderly resolution of claims against insurers and the avoidance of exaggerated claims.
"Whether the question is analysed in terms of a positive duty on the State - to take reasonable and appropriate measures to secure the applicant's rights under paragraph 1 of Article 8 , as the applicant wishes in her case, or in terms of an 'interference by a public authority' to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in any case the State enjoys a certain margin of appreciation. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance."
In my opinion the appropriate course is to consider whether the evidence is admissible by reference to the criteria by which interference with the right may be justified in accordance with paragraph 2, always having regard to the fair balance that must be struck between the respective competing interests.
CONCLUSIONS FOR DECLARATOR AND DAMAGES
"Was the setting and maintaining of the watch within the competence of the defender? This appears ultimately to be the real question in the case. I do not doubt that to set and maintain a police watch upon the house of a citizen, in circumstances that attract public attention and give rise to suspicion in the public mind, may, if done without just cause, amount to an invasion of the liberty of the citizen as truly and effectively as if the citizen were subjected to physical restraint. But whether in any case it is an unlawful invasion of liberty must depend upon the circumstances of the particular case."
Mr Summers relied also on the opinion of the Lord President (Normand) at page 41 as follows:
"It is not doubtful that any unwarranted and unlawful proceeding by a public officer resulting in injury to anyone will subject him to liability, and that in such a case proof of malice and want of probable cause is not required of the pursuer. The first question, therefore, is whether the action of the defender in ordering the watch to be set falls into this category. It was admitted, and it is, I think, the law, that, if the watch had been set in the course of investigating a crime, and if it had led to some injury to the pursuer, she would have had no case unless she could prove malice and want of probable cause. The protection which is thus given to the police and other public officials acting in the exercise of their duty is a privilege founded on the public interest - Beaton v Ivory (1887) 14 R. 1057 - for it is of the highest importance that public officials should not be hindered in their duty by fears of incurring liability for damages if their conduct is subsequently impugned as indiscreet or imprudent or going beyond what the immediate necessities required."
Under reference to a brief discussion of this case by Lord Kilbrandon, then Law Commissioner, in the 1971 Cambrian Law Review at pages 42-43, Mr Summers submitted that the true ratio of Robertson v Keith was, not that special rules apply to public officials, but that an infringement of the liberty of the individual or of his peaceful enjoyment of his property or the peaceful enjoyment of his own private life by deliberate conduct causing him distress and annoyance was excused only if it was lawful. In the case of the chief constable the conduct was lawful since it fell within the scope of his duties and responsibilities. That being so, he could be held liable only if he had acted maliciously and without probable cause,.
"A duty of confidence will arise whenever the party subject to the duty is in a situation where he either knows or ought to know that the other person can reasonably expect his privacy to be protected."
In delivering the opinion of the Court in A v B plc [2002] 3 WLR 542 Wolff C.J. adopted that definition and said this at page 550:
"It is most unlikely that any purpose will be served by a judge seeking to decide whether there exists a new cause of action in tort which protects privacy. In the great majority of situations, if not all situations, where the protection of privacy is justified, relating to events after the Human Rights Act 1998 came into force, an action for breach of confidence now will, where this is appropriate, provide the necessary protection."
Examples of this development can be seen in Naomi Campbell v MGN Ltd [2002] EWCA Civ 1373; Theakston v MGN [2002] EWHC 137; Douglas v Hello! Ltd [2001] QB 967, [2001] 2 All ER 289 and Venables v News Group Newspapers Ltd [2001] Fam 430. These are all cases involving Article 10 of the Convention and its relationship with Article 8.
INTERLOCUTOR