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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> J38, Re Application for Judicial Review (Northern Ireland) [2015] UKSC 42 (1 July 2015) URL: https://www.bailii.org/uk/cases/UKSC/2015/42.html Cite as: [2016] AC 1131, [2015] UKSC 42, [2015] HRLR 13, [2015] 4 All ER 90, [2015] WLR(D) 280, [2015] 3 WLR 155, [2015] EMLR 25 |
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Trinity Term
[2015] UKSC 42
On appeal from: [2013] NIQB 44
In the matter of an application by JR38 for Judicial Review (Northern Ireland)
before
Lord Kerr
Lord Clarke
Lord Wilson
Lord Toulson
Lord Hodge
JUDGMENT GIVEN ON
Heard on 6 November 2014
Appellant Mary Higgins QC Ronan Lavery QC (Instructed by MSM Law) |
Respondent Tony McGleenan QC Paul McLaughlin (Instructed by Crown Solicitors Office) |
LORD KERR: (with whom Lord Wilson agrees)
Introduction
Factual background
Operation Exposure
The issues
"Whether the publication of photographs by the police to identify a young person suspected of being involved in riotous behaviour and attempted criminal damage can ever be a necessary and proportionate interference with that person's article 8 rights."
"This application is not concerned with the taking of photographs of the riotous and disorderly activity or the retention and distribution of those photographs internally to police officers for the purpose of identifying offenders. The complaint is focused on the provision of those photographs to the media and solely concerns the decision to do so in circumstances where it was apparent that some of the photographs were images of children."
Is article 8 engaged?
"In this case the photograph is not just an image of the child. It is part of a context which discloses to the public that the child in the image is at least wanted for interview in connection with possible involvement in serious public disturbances. At the time of publication it had not been established that the child had participated in any offence. The domestic and international provisions set out at paras 23 to 26 above [section 53 of the Justice (Northern Ireland) Act 2002, article 22 of the Criminal Justice (Children) (Northern Ireland) Order 1998, the Beijing Rules, the United Nations Convention on the Rights of the Child (UNCRC)] indicate the importance of respecting the privacy of children in the criminal justice system because of the risk that they will become stigmatised with a consequent effect on their reputation and standing within the community. If participation in criminal activity is established their rehabilitation may thereafter be impaired. Given the breadth of the concept of private life the publication of photographs suggesting that police wished to identify this child in connection with these serious offences was an intrusion into his private life."
"The answer to the question whether a private life right exists in a public setting will be found by considering whether the person had a reasonable expectation of privacy in the public circumstances in which he placed or found himself. In this case the applicant placed himself in public view among a crowd of other persons engaged, allegedly, in public disorder. He was open to public view by anyone who happened to be watching, be they police or civilians. He took the risk of his presence and any activities being observed and noted down or otherwise recorded. What was the aspect of his private life which was in issue at that stage? None has been ventured. There must be an onus on the applicant to establish the aspect of his private life which he states is engaged at that stage or to characterise the interest which he seeks to protect. As in Kinloch there can have been no expectation of privacy in the circumstances of the instant case. The criminal nature of his activities or his presence, (if that is what they are), are not aspects of his life which he is entitled to keep private. Such activities should never be an aspect of private life for the purposes of article 8. In my view a criminal act is far removed from the values which article 8 was designed to protect, rather the contrary. In this case the applicant was photographed by the police, rather than his presence or activities simply noted down. I do not consider that is a material distinction. The photograph is probably a more accurate record of what is on-going. In my view the taking of the photographs of the claimant, in the particular circumstances of this case, did not amount to a failure to respect any aspect of the claimant's private life within article 8(1)."
"Accordingly, in deciding what was the ambit of an individual's 'private life' in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy." (emphasis supplied)
"'Private life' is a broad term not susceptible to exhaustive definition. Article 8 also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. It may include activities of a professional or business nature. There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of 'private life'." (para 56)
"There are a number of elements relevant to a consideration of whether a person's private life is concerned by measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor. A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example, a security guard viewing through closed-circuit television) is of a similar character. Private-life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain. It is for this reason that files gathered by security services on a particular individual fall within the scope of article 8, even where the information has not been gathered by any intrusive or covert method. The court has referred in this context to the Council of Europe's Convention of January 28, 1981 for the protection of individuals with regard to automatic processing of personal data, which came into force on October 1, 1985 and whose purpose is: '[T]o secure in the territory of each Party for every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him.' Such data being defined as 'any information relating to an identified or identifiable individual'."(emphasis supplied)
"... the court finds that it is not insignificant that the photographer was able to keep the negatives of the offending photographs, in spite of the express request of the applicants, who exercised parental authority, that the negatives be delivered up to them. Admittedly, the photographs simply showed a face-on portrait of the baby and did not show the applicants' son in a state that could be regarded as degrading, or in general as capable of infringing his personality rights. However, the key issue in the present case is not the nature, harmless or otherwise, of the applicants' son's representation on the offending photographs, but the fact that the photographer kept them without the applicants' consent. The baby's image was thus retained in the hands of the photographer in an identifiable form with the possibility of subsequent use against the wishes of the person concerned and/or his parents (see, mutatis mutandis, PG and JH v The United Kingdom 46 EHRR 1272, para 57)."
"A person's image constitutes one of the chief attributes of his or her personality as it reveals the person's unique characteristics and distinguishes the person from his or her peers. The right to the protection of one's image is thus one of the essential components of personal development and presupposes the right to control the use of that image. Whilst in most cases the right to control such use involves the possibility for an individual to refuse publication of his or her image, it also covers the individual's right to object to the recording, conservation and reproduction of the image by another person. As a person's image is one of the characteristics attached to his or her personality, its effective protection presupposes, in principle and in circumstances such as those of the present case , obtaining the consent of the person concerned at the time the picture is taken and not simply if and when it is published. Otherwise an essential attribute of personality would be retained in the hands of a third party and the person concerned would have no control over any subsequent use of the image."
"Regarding whether there has been an interference, the court reiterates that the concept of private life includes elements relating to a person's right to their picture and that the publication of a photograph falls within the scope of private life. It has also given guidance regarding the scope of private life and it has found that there is:
'a zone of interaction of a person with others, even in a public context, which may fall within the scope of a private life' (Von Hannover v Germany (2005) 40 EHRR 1, paras 50-53)
In the instant case the applicant's status as an 'ordinary person' enlarges the zone of interaction which may fall within the scope of private life, and the fact that the applicant was the subject of criminal proceedings cannot curtail the scope of such protection.
Accordingly, the court concludes that there has been interference."
"(1) Where a child is concerned in any criminal proceedings (other than proceedings to which paragraph 2 applies) the court may direct that -
(a) no report shall be published which reveals the name, address or school of the child or includes any particulars likely to lead to the identification of the child; and
(b) no picture shall be published as being or including a picture of the child, except in so far (if at all) as may be permitted by the direction of the court.
(2) Where a child is concerned in any proceedings in a youth court or on appeal from a youth court (including proceedings by way of case stated) -
(a) no report shall be published which reveals the name, address or school of the child or includes any particulars likely to lead to the identification of the child; and
(b) no picture shall be published as being or including a picture of any child so concerned, except where the court or the [Department of Justice], if satisfied that it is in the interests of justice to do so, makes an order dispensing with these prohibitions to such extent as may be specified in the order.
(3) If a court is satisfied that it is in the public interest to do so, it may, in relation to a child who has been found guilty of an offence, make an order dispensing with the prohibitions in paragraph 2 to such extent as may be specified in the order "
"Article 3, paragraph 1 of the Convention on the Rights of the Child gives the child the right to have his or her best interests assessed and taken into account as a primary consideration in all actions or decisions that concern him or her, both in the public and private sphere. Moreover, it expresses one of the fundamental values of the Convention. The Committee on the Rights of the Child (the Committee) has identified article 3, paragraph 1, as one of the four general principles of the Convention for interpreting and implementing all the rights of the child, and applies it is a dynamic concept that requires an assessment appropriate to the specific context."
And this at para 4:
"1. The concept of the child's best interests is aimed at ensuring both the full and effective enjoyment of all the rights recognized in the Convention and the holistic development of the child. The Committee has already pointed out that 'an adult's judgment of a child's best interests cannot override the obligation to respect all the child's rights under the Convention'. It recalls that there is no hierarchy of rights in the Convention; all the rights provided for therein are in the 'child's best interests' and no right could be compromised by a negative interpretation of the child's best interests."
And, finally, this at para 5:
"The full application of the concept of the child's best interests requires the development of a rights-based approach, engaging all actors, to secure the holistic physical, psychological, moral and spiritual integrity of the child and promote his or her human dignity."
"8.1 The juvenile's right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling.
8.2 In principle, no information that may lead to the identification of a juvenile offender shall be published."
"Rule 8 stresses the importance of the protection of the juvenile's right to privacy. Young persons are particularly susceptible to stigmatization. Criminological research into labelling processes has provided evidence of the detrimental effects (of different kinds) resulting from the permanent identification of young persons as 'delinquent' or 'criminal'. Rule 8 stresses the importance of protecting the juvenile from the adverse effects that may result from the publication in the mass media of information about the case (for example the names of young offenders, alleged or convicted). The interest of the individual should be protected and upheld, at least in principle."
"As we see it, the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher."
"What Laws LJ said about the taking of photographs on arrest was obviously obiter. More importantly, it relied on Strasbourg decisions prior to S v United Kingdom which, as already explained, have to be re-assessed in the light of the judgment in that case; and it was based on a test of 'reasonable expectation of privacy' which, as the recent Strasbourg cases show, is not the only or determinative factor. In Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457, at para 21, Lord Nicholls of Birkenhead said, in relation to article 8.1, that '[e]ssentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy'. But that was plainly not the specific test applied by the Strasbourg court in S v United Kingdom; and the judgment in PG v United Kingdom makes clear, at para 27, that it is not the only test and that other considerations come into play, in particular, in relation to the retention of personal data ."
"In one sense [the reasonable expectation of privacy] test might be thought to be circular. It begs the question what is the "privacy" which may be the subject of a reasonable expectation. Given the expanded concept of private life in the jurisprudence of the Convention, the test cannot be limited to cases where a person can be said to have a reasonable expectation about the privacy of his home or personal communications. It must extend to every occasion on which a person has a reasonable expectation that there will be no interference with the broader right of personal autonomy recognised in the case law of the Strasbourg court. This is consistent with the recognition that there may be some matters about which there is a reasonable expectation of privacy, notwithstanding that they occur in public and are patent to all the world. In this context mere observation cannot, save perhaps in extreme circumstances, engage article 8, but the systematic retention of information may do."
Justification
Necessary in a democratic society
i) is the legislative objective sufficiently important to justify limiting a fundamental right?;
ii) are the measures which have been designed to meet it rationally connected to it?;
iii) are they no more than are necessary to accomplish it?; and
iv) do they strike a fair balance between the rights of the individual and the interests of the community?
Are the measures no more than is necessary to achieve the objective?
A fair balance?
Disposal
LORD TOULSON: (with whom Lord Hodge agrees)
"50. The court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person's name (see Burghartz v Switzerland [1994] ECHR 16293/90 at para 24) or a person's picture (see Schussel v Austria (Application No 42409/98) (admissability decision, 21 February 2002)).
Furthermore, private life, in the court's view, includes a person's physical and psychological integrity; the guarantee afforded by article 8 of the convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings (see, mutatis mutandis, Niemietz v Germany [1992] ECHR 13710/88 at para 29, and Botta v Italy (1998) 4 BHRC 81 at para 32.) There is therefore a zone of interaction with others, even in a public context, which may fall within the scope of "private life" (see, mutatis mutandis, PG v UK [2001] ECHR 44787/98 at para 56, and Peck v UK (2003) 13 BHRC 669 at para 57.)
51. The court has also indicated that, in certain circumstances, a person has a "legitimate expectation" of protection and respect for his private life. Accordingly, it has held in a case concerning the interception of telephone calls on business premises that the applicant "would have had a reasonable expectation of privacy for such calls" (see Halford v UK (1997) 3 BHRC 31 at para 45).
52. As regards photos, with a view to defining the scope of protection afforded by article 8 against arbitrary interference by public authorities, the Commission had regard to whether the photographs related to private or public matters and whether the material thus obtained was envisaged for a limited use or was likely to be made available to the general public (see, mutatis mutandis, Friedl v Austria [1995] ECHR 15225/89, (1995) 21 EHRR 83, Friendly Settlement, Commission opinion, at paras 49-52; PG v UK [2001] ECHR 44787/98 at para 58; and Peck v UK (2003) 13 BHRC 669 at para 61)."
"20. The phrase "physical and psychological integrity" of a person (Von Hannover v Germany 16 BHRC 545 (para 50), S v UK 25 BHRC 557 (para 66) is with respect helpful. So is the person's "physical and social identity" (see S v UK at para 66 and other references there given). These expressions reflect what seems to me to be the central value protected by the right. I would describe it as the personal autonomy of every individual
21. The notion of the personal autonomy of every individual marches with the presumption of liberty enjoyed in a free polity: a presumption which consists in the principle that every interference with the freedom of the individual stands in need of objective justification. Applied to the myriad instances recognised in the article 8 jurisprudence, this presumption means that, subject to the qualifications I shall shortly describe, an individual's personal autonomy makes him should make him master of all those facts about his own identity, such as is name, health, sexuality, ethnicity, his own image, of which the cases speak; and also of the "zone of interaction" (Von Hannover v Germany 16 BHRC 545 (para 50) between himself and others
22. This cluster of values, summarised as the personal autonomy of every individual and taking concrete form as a presumption against interference with the individual's liberty, is a defining characteristic of a free society. We therefore need to preserve it even in little cases. At the same time it is important that this core right protected by article 8, however protean, should not be read so widely that its claims become unreal and unreasonable. For this purpose I think that there are three safeguards, or qualifications. First, the alleged threat or assault to the individual's autonomy must (if article 8 is to be engaged) attain "a certain level of seriousness". Secondly, the touchstone for article 8(1)'s engagement is whether the claimant enjoys on the facts a "reasonable expectation of privacy" (in any of the senses of privacy accepted in the cases). Absent such an expectation, there is no relevant interference with personal autonomy. Thirdly, the breadth of article 8(1) may in many instances be greatly curtailed by the scope of the justifications available to the state pursuant to article 8(2). I shall say a little in turn about these three antidotes to the over blown use of article 8."
"19. There is a zone of interaction with others, even in a public context, which may fall within the scope of private life: PG v United Kingdom, 46 EHRR 1272, para 56. But measures effected in a public place outside the person's home or private premises will not, without more, be regarded as interfering with his right to respect for his private life. Occasions when a person knowingly or intentionally involves himself in activities which may be recorded or reported in public, in circumstances where he does not have a reasonable expectation of privacy, will fall into that category: PG v United Kingdom, para 57.
20. The Strasbourg court has not had occasion to consider situations such as that illustrated by the present case, where a person's movements in a public place are noted down by the police as part of their investigations when they suspect the person of criminal activity
21. I think that the answer to it is to be found by considering whether the appellant had a reasonable expectation of privacy while he was in public view as he moved between his car and the block of flats where he lived and engaged in his other activities that day in places that were open to the public. The criminal nature of what he was doing, if that is what it was found to be, was not an aspect of his private life that he was entitled to keep private."
"In common with other jurisdictions, including the European Court of Human Rights and the courts of the United States, Canada and New Zealand, the courts of the United Kingdom have adopted as the test for what constitutes 'private life' whether there was a reasonable expectation in the relevant respect."
"There are a number of elements relevant to a consideration of whether a person's private life may be concerned by measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor. A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene is of a similar character. Private-life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain." (Emphasis added.)
The court did not expand on its thinking in the second sentence of this passage. The linkage between the two halves of the sentence is intriguing but obscure. It may be that the court had in mind that a person may have a reasonable but mistaken expectation of privacy. Be that as it may, I have difficulty in reading the court as meaning to suggest that a situation may come within the scope of article 8 even where the person concerned had no reasonable expectation of privacy, and it is difficult to see why that should be so. It is perhaps unfortunate that the point was not developed, but the case pre-dated Von Hannover, where the court referred to a "legitimate expectation" of protection, and the succeeding line of domestic authorities (including three decisions of the House of Lords or Supreme Court), which have adopted and applied the reasonable expectation test.
"A proper consideration of the degree of protection to which a child is entitled under article 8 has to be considered in a wider context by taking into account not only the circumstances in which the photograph was taken and its actual impact on the child, but also the position of the child's parents and the way in which the child's life as part of that family has been conducted. The question whether a child in any particular circumstances has a reasonable expectation for privacy must be determined by the court taking an objective view of the matter including the reasonable expectations of his parents in those same circumstances as to whether their children's lives in a public place should remain private. Ultimately it will be a matter of judgment for the court with every case depending upon its own facts. The point that needs to be emphasised is that the assessment of the impact of the taking and the subsequent publication of the photograph on the child cannot be limited by whether the child was physically aware of the photograph being taken or published or personally affected by it. The court can attribute to the child reasonable expectations about his private life based on matters such as how it has in fact been conducted by those responsible for his welfare and upbringing."
"(i) the violence at this [the Fountain Street/Bishop Street] interface was persistent, extending over a period of months, and was exposing vulnerable people to fear and the risk of injury.
(ii) There was, therefore, a pressing need to take steps to bring it to an end by identifying and dealing with those responsible.
(iii) Detection by arresting those at the scene was not feasible so use of photographic images was necessary.
(iv) All reasonably practicable methods of identifying those involved short of publication of the photographs had been tried."
LORD CLARKE: (with whom Lord Hodge agrees)
"In common with other jurisdictions, including the European Court of Human Rights and the courts of the United States, Canada and New Zealand, the courts of the United Kingdom have adopted as the test for what constitutes 'private life' whether there was a reasonable expectation in the relevant respect: see Campbell para 21 (Lord Nicholls of Birkenhead) and Kinloch paras 19-21 (Lord Hope of Craighead DPSC). In one sense this test might be thought to be circular. It begs the question what is the 'privacy' which may be the subject of a reasonable expectation. Given the expanded concept of private life in the jurisprudence of the Convention, the test cannot be limited to cases where a person can be said to have a reasonable expectation about the privacy of his home or personal communications. It must extend to every occasion on which a person has a reasonable expectation that there will be no interference with the broader right of personal autonomy recognised in the case law of the Strasbourg court. This is consistent with the recognition that there may be some matters about which there is a reasonable expectation of privacy, notwithstanding that they occur in public and are patent to all the world. In this context mere observation cannot, save perhaps in extreme circumstances, engage article 8, but the systematic retention of information may do."
Lord Sumption was not suggesting that any test other than the legitimate expectation of privacy might be appropriate.
"What Laws LJ said [in Wood] about the taking of photographs on arrest was obviously obiter. More importantly, it relied on Strasbourg decisions prior to S v United Kingdom [(2009) 48 EHRR 50] which, as already explained, have to be re-assessed in the light of the judgment in that case; and it was based on a test of 'reasonable expectation of privacy' which, as the recent Strasbourg cases show, is not the only or determinative factor. In Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457, at para 21, Lord Nicholls of Birkenhead said, in relation to article 8.1, that '[e]ssentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy'. But that was plainly not the specific test applied by the Strasbourg court in S v United Kingdom; and the judgment in PG v United Kingdom [(2008) 46 EHRR 51] makes clear at para 57, that it is not the only test and that other considerations come into play, in particular, in relation to the retention of personal data ."
"19. There is a zone of interaction with others, even in a public context, which may fall within the scope of private life: PG v United Kingdom, , para 56. But measures effected in a public place outside the person's home or private premises will not, without more, be regarded as interfering with his right to respect for his private life. Occasions when a person knowingly or intentionally involves himself in activities which may be recorded or reported in public, in circumstances where he does not have a reasonable expectation of privacy, will fall into that category: PG v United Kingdom, para 57
20. The Strasbourg court has not had occasion to consider situations such as that illustrated by the present case, where a person's movements in a public place are noted down by the police as part of their investigations when they suspect the person of criminal activity
21. I think that the answer to it is to be found by considering whether the appellant had a reasonable expectation of privacy while he was in public view as he moved between his car and the block of flats where he lived and engaged in his other activities that day in places that were open to the public. The criminal nature of what he was doing, if that is what it was found to be, was not an aspect of his private life that he was entitled to keep private."