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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ford, R (on the application of) v Press Complaints Commission [2001] EWHC Admin 683 (31st July, 2001)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/683.html
Cite as: [2002] EMLR 5, [2001] EWHC 683 (Admin), [2001] EWHC Admin 683

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QUEEN ON APPLICATION OF ANNA FORD v. PRESS COMPLAINTS COMMISSION [2001] EWHC Admin 683 (31st July, 2001)

Case No:CO/1143/2001
Neutral Citation Number: [2001] EWHC Admin 683
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Tuesday 31st July 2001

B e f o r e :
THE HONOURABLE MR. JUSTICE SILBER
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THE QUEEN ON THE APPLICATION OF ANNA FORD

Claimant


- and -



THE PRESS COMPLAINTS COMMISSION

Defendant


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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr. Geoffrey Robertson QC and Mr. Anthony Hudson
(instructed by Bindman & Co. for the Claimant)
Mr. David Pannick QC and Mr. Michael Fordham
(instructed by
Sheridans for the Defendant)
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Judgment
As Approved by the Court
Crown Copyright ©


MR. JUSTICE SILBER:

1. Ms Anna Ford ("the Claimant") seeks permission to quash a decision of the Press Complaints Commission ("the Commission") dated 6 December 2000 ("the determination"), by which it refused to uphold complaints made by the claimant and Mr. David Scott that photographs of them that were published in the Daily Mail on 31 August 2000 and in the edition of O.K! Magazine ("O.K.") dated 15 September 2000, infringed their privacy in breach of clause 3 of the Code of Practice of the Commission ("the code").

2. Clause 3 of the code states that :-
(i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual's private life without consent.
(ii) The use of long-lens photography to take pictures of people in private places without their consent is unacceptable.
Note- Private places are public or private property where there is a reasonable expectation of privacy.

3. Clause 4 (iii) of the Code is relevant to clause 3 of the code as it provides that:-
Editors must ensure that those working for them comply with these requirements and must not publish material from other sources which does not meet these requirements.
The Background

4. In August 2000, Ms. Ford, the well-known BBC newsreader and television journalist, went on holiday to Majorca with Mr. David Scott a former United States Astronaut and her teenage children. They were anxious that they should be able to enjoy their holiday undisturbed and unrecognised. On 31 August 2000, the Daily Mail contained an article on page 10 entitled "Relaxing in Spain - newsreader and her astronaut beside a sea of tranquillity". The article was accompanied by photographs of the Ms. Ford and Mr. Scott in their swimwear and applying sun cream to one another. The article was flattering about Ms. Ford's appearance and her counsel point out that it explained that she was enjoying "a family holiday" on Majorca. It said that, "largely unrecognised by holidaymakers, Ms. Ford has been keeping a low profile, shunning her five star hotel's swimming pool in favour of secluded areas of the beach". The article said that Ms. Ford and Mr. Scott had "been walking further along the beach to get more privacy"

5. On page 13 of the 15 September 2000 Edition of O.K!, there were several photographs of Ms. Ford and Mr. Scott which showed them on the beach in their swimwear and applying sun cream to one another. The photographs were accompanied by an article, which contained flattering comments on Ms. Ford's appearance and her counsel noted that it said that she had "enjoyed swimming in the sea and sunbathing on quiet spots of the beach with her family".

6. The photographs accompanying the articles appearing in both the Daily Mail and O.K! Magazine had been taken with the use of long-lens cameras so that Ms. Ford and Mr. Scott were unaware that they had been photographed. Ms. Ford says that she would not have consented to the taking of the photographs had her consent been sought. I will return to describe the precise location of Ms. Ford and Mr. Scott when the photographs were taken.

7. Claimant says that after publication of the article accompanying the photographs in the Daily Mail, several people in the hotel at which she and Mr. Scott were staying mentioned the photographs and began to pay attention to them. Several people approached Mr. Scott and asked if they could shake the hand of the man who had walked on the moon. Ms. Ford also received a letter dated 31 August 2000 from a person who had seen the photograph of them in the Daily Mail and had commented on it in an inappropriate manner.

8. In her witness statement, the Claimant explained that they had chosen their hotel not only because, "it was quiet and old fashioned and full of rather middle aged people", but also because it was close to the end of the beach being situated next to some property owned by the Spanish Ministry of Defence. Ms. Ford explained that she spends her professional life working on screen in front of millions of people and that holidays with her children are precious and private. She attaches importance to the fact that she need not wear make-up nor bother with her hair or in any way be self conscious whilst she is on holiday. Ms. Ford said that after the publication of the article and the photographs, she and Mr. Scott were bothered by people mentioning them. She explained about her work as a newscaster that "I like what I do but I do not seek star status nor do I behave like one".

9. The articles had been published, the Claimant's solicitors sent a letter of complaint to the editors of the Daily Mail and O.K! requesting each of them to publish an apology and an undertaking that the privacy of Ms. Ford and Mr. Scott "will be respected in future". When the Daily Mail and O.K! failed to provide either the apology or the undertakings, Ms. Ford and Mr. Scott complained to the Commission, which requested and obtained information from the claimant and the publishers. Subsequently as I have explained, by their determination, the Commission refused to uphold the complaint.

10. The Claimant seeks permission to quash the determination and it is important at this stage to explain and stress four important points about the function of the court on this application. First, on an application for permission for judicial review, such as the one now being made by Ms. Ford, the court is not permitted to, and does not, conduct an appeal on the facts from the determination. So it is not my task to consider if I would have reached the same decision on the complaint as the Commission did. Second, as this application concerns the reasoning of the Commission, it is not my function to determine whether the Daily Mail, OK! or those who used long-lens photography to take the photographs of the claimant while she was on holiday infringed her right of privacy. Third, I am not engaged in deciding whether either of these papers has behaved wrongfully or unjustly by obtaining or publishing the photographs of which complaint is now being made. Fourth, my sole task is to ascertain if the claimant has an arguable case to pursue her complaint by invoking the Administrative Court's limited but defined supervisory jurisdiction over the Commission in relation to the determination. Ms. Ford's complaints are based on the wording of this specific determination and my decision has to be seen in that light.

11. The Commission correctly in my view accepts for the purposes of the present permission application, that it is arguable whether it is a Public Authority for the purposes of Section 6 of the Human Rights Act 1998 ("the HRA") and is amenable to judicial review. The Commission's main contentions are that permission to quash the determination ought to be refused because the Claimant has no realistic prospect of success and on account of her delay in making this application.
No realistic prospects of success

12. The claimant contends that the Commission made errors of law in its determination but before dealing with them, it is now appropriate to deal with the degree and intensity of scrutiny that the courts should give to the determination of the Commission, especially in the light of recent cases. They have thrown light on the approach that the courts should take to applications for judicial review after the incorporation of the HRA. In Smith and Grady v. United Kingdom , (1999) 29 EHLR 493, the European Court held that the orthodox domestic approach of the English courts had not given the applicants an effective remedy for breach of their rights under Article 8 of the Convention as the threshold of review had been set too high (see R. v. Secretary of State for the Home Department ex parte Daly [2001] 2 WLR 1622,1633-4 per Lord Bingham of Cornhill). The cases decided by the court under the HRA show that public bodies can in appropriate cases enjoy a discretionary area of judgment.

13. In R .v. Home Secretary ex parte Mahmood [2001] 1 WLR 840 at page 856, Lord Phillips of Worth Maltravers MR explained that:-
" The court does not substitute its own decision for that of the executive. It reviews the decision of the executive to see whether it was permitted by law - in this instance the Human Rights Act 1998. In performing this exercise the court has to bear in mind that just as individual states enjoy a margin of appreciation which permits them to respond, within the law, in a manner that is not uniform, so there will often be an area of discretion permitted to the executive of a country before a response can be demonstrated to infringe the Convention"(Paragraph 38).

14. In that case, the Master of the Rolls referred to guidance about the approach to be adopted, which was developed in the speech of Lord Hope of Craighead in R. v. Director of Public Prosecutions ex parte Kebilene [2000] 2 AC 326 at pages 380-381 in which he explained that
"The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality. In this area difficult choices may have to be made between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the court to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body the person whose actual decision is said to be incompatible with the Convention".

15. He considered that such class of case fell within the description "the discretionary area of judgment", which was a term originally suggested by Lord Lester of Herne Hill QC and Mr. Pannick in their book, Human Rights Law and Practice (1999). Lord Hope explained later that
" it will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less where the right is stated in terms which are unqualified. It will be easier for it to be recognised were the issues involved questions of social or economic policy, much less so where the rights were of high constitutional importance or of a kind where the courts are especially well placed to assess the need for protection".

16. Mr. Pannick QC points out that there are statements in that speech which show that there is a discretionary area of judgment in the determination of the Commission so that the courts should show deference towards it. First, Paragraph 3(i) of the Code which sets out the right to privacy is expressed in identical terms to the right embodied in Article 8 of the Convention, which itself is expressed to be in qualified terms because Article 8(2) of the Convention creates an exception where it, "is necessary in a democratic society.... for the protection of the rights and freedom of others". In addition, he points out that the task for the Commission is to balance the right of the claimant to her privacy against the newspaper's right to free expression. So he says correctly in my view that this is a determination where in Lord Hope's words, "a balance has to be struck".

17. Second, the freedom with which Ms. Ford's claim is concerned is that of privacy which is of substantial social significance but is not of "high constitutional importance"; this indicates that the courts will defer to the views of the body whose decision is under scrutiny, which in this case is the Commission. Third, as I shall explain later, the conflict between the individual's right to privacy and the newspaper's right to expression raises issues which as Lord Woolf M.R. explained in a judgment to which I will return is not of the kind which in Lord Hope's words "the courts are especially well placed to assess the need for protection". I accept that these factors individually and cumulatively suggest that the Commission does have a realistic margin of discretion in its judgment in the way in which it determines complaints, which allege infringement of the privacy of the complainant. In consequence, the courts will be deferential to and not be keen to interfere with decisions of the Commission on those issues unless, as I will explain in paragraph 28, it is clearly desirable to do so.

18. More recently in R. v. Secretary of State for the Home Department ex parte Daly [2001] 2 WLR1622 Lord Steyn (with whom the other Law Lords agreed on this point), advocated at page 1635, the use of a proportionality approach under which "the intensity of review" would be greater. This intensity of review "is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society in the sense of meeting a pressing social need and the question whether the interference was really proportionate in the legitimate aim being pursued". He concluded by agreeing that the intensity of the review would depend on the subject-matter in hand because, as he explained at page 1636, "in law, context is everything".

19. Before turning to consider the context, it is appropriate to comment on a submission made on behalf of the claimant relating to this court's approach to this application. Mr. Robertson QC contends that the recent decision of the Judicial Committee of the Privy Council in Priess v. The General Dental Council (unreported -17 July 2001) means that this court's supervisory jurisdiction permits it to deal with appeals on issues of fact from bodies, such as the Commission. This would mean that the traditional supervisory power of the courts would have been drastically enlarged by that decision. I cannot accept this submission as the appeal in Priess was dealing with the issue of what degree of scrutiny on factual matters is given to the Privy Council when it resolves appeals by dentists made pursuant to section 29 of the Dentists Act 1984 . That decision is at most only relevant to those appeals by those in that profession and there was nothing in the Committee's reasoning which effects the degree of scrutiny in other cases, such as the present application. It is noteworthy that the important recent decisions relating to the degree of deference owed by a court to decisions under review in cases such as Kebilene, Mahmood and Daly were not referred to by the Privy Council, which significantly did not, for example, cite or comment on Lord Steyn's important statements in Daly, such as that "the respective roles of judges and administrators are fundamentally different and will remain so" (at page 1636). It is noteworthy that two of the three members of the Judicial Committee, who heard Priess were parties to the decision two months earlier in Daly.

20. So in the light of Lord Steyn's comments about the importance of the context in which the particular decision under scrutiny was made, I must now turn to consider the context in which the determination was made starting with the tasks and aims of the Commission. In response to a recommendation of the Calcutt Committee made in 1990, the press set up in 1991 the Commission and it was charged with upholding and enforcing the code, which was framed by the newspaper and the periodical industry.

21. The Commission's objects according to its Memorandum of Association are, inter alia,:-
"to consider, adjudicate, conciliate and resolve or settle by reference to the Code ...complaints from the public of unjust or unfair treatment by newspapers, periodicals or magazines and of unwarranted infringements of privacy through material published in newspapers, periodicals or magazines....or in connection with the obtaining of such material and to publish or procure the publication of any findings of its adjudication for the purpose of ensuring that the press of the United Kingdom maintains the highest professional standards and having regard to generally established freedoms including freedom of expression and the public's right to know, and defence of the press from improper pressures".

22. The Code records that the Commission is charged with enforcing it and that it is "the cornerstone of the system of self-regulation to which the industry has made a binding commitment". The Annual Review of the Commission for 2000 indicates that 16 members serve on it and of these, nine are totally unconnected with the press with the remaining seven being serving editors drawn from across the national, regional and periodical press. It is of importance to the Commission that the lay members form the majority of its members. An independent appointments commission appoints all the commissioners and that fact serves to emphasise the independence of the lay members.

23. As its memorandum shows, the Commission has to consider and balance in many cases the important but countervailing freedoms of privacy and of expression. The Commission then has to exercise a judgment on the particular facts as to when the right to privacy of a complainant ends and where the freedom of expression of the publisher against whom the complaint is made begins. This present case highlights the problem as Ms. Ford for obvious and understandable reasons focuses her complaint exclusively on her right to privacy while the newspapers attach great importance to their right of expression. So, the sensitive task of the Commission is to consider not only the right to privacy but also the freedom of expression of the newspapers and then seek to balance them before reaching its conclusion.

24. In carrying out this task, the Commission needs the benefit of the experience and expertise of its members in resolving these difficult and controversial arguments caused by the conflict and tension between these two basic rights. The courts have recognised the sensitivity of the judgment required where this conflict exists. Thus, in R. v Broadcasting Standards Commission, ex parte British Broadcasting Corporation [2000] 3 WLR 1327, Lord Woolf M.R emphasised at page 1332 the sensitivities of the issues as well as the significance of the expertise of the regulatory body when he said of the defendants in that case that; -
" So long as the approach which [they] adopt is one to which, in their statutory context, the words infringement of privacy are capable of applying then the courts should not interfere. It is only if an approach to "infringement of privacy" by [them] goes beyond the area of tolerance that the courts can intervene. There will be situations which fall within the grey area where it will be very much a matter of judgment whether they fall within [their] ambit or not .In the latter situations, having regard to the role the legislation gives to to [them] the answer to the scope of their remit is that it is something for [them] to determine not the courts. The nature of their work and their membership are important when considering the role of the courts in relation to adjudications by [them]. What constitutes an infringement of privacy or bad taste or a failure to conform to proper standards of decency is very much a matter of personal judgment. This is not an area on which the courts are well equipped to adjudicate".

25. The Commission is not a statutory body, unlike the defendant in the BBC case but it is a self- regulating organisation set up to deal with standards in publications. Nevertheless it is significant that the defendant statutory body in the BBC case shares with the Commission two significant and relevant features; first, both of them have to resolve disputes between those who wish to exploit their right of free expression and those who complain that such activities interfere with their private rights. Second, they both have a specially selected membership, which equips them with a special expertise in resolving issues of the kind raised by Ms. Ford's complaint. So, the remarks of Lord Woolf M.R. in the BBC case appear both relevant and apposite to the work of the Commission in its resolution of the present dispute.

26. It is noteworthy that the BBC case was decided before the HRA came into force but nevertheless it shows the broad discretion given to the Commission and the extended deference given by the courts to their decisions. This approach was also illustrated by the comments of Lord Woolf M.R.(with whom Millett and Potter LJJ agreed) in R. v. Press Complaints Commission, ex parte Stewart Brady (1996) 9 Admin LR 274 at 279 B where he stated with emphasis added that
"in my judgment it is very important that where you have a body such as the Press Complaints Commission, if the court has any jurisdiction it is reserved for cases where it would be clearly desirable for this court to intervene".

27. These cases were all determined before the HRA came into force but the Commission contend that the same broad discretion appears to have been recognised by the European Commission when it dealt with the same Brady case where it rejected his complaint under Article 8 as "being manifestly ill-founded" (1998) 27 EHRR 284 at 286. The Commission concluded that the United Kingdom Authorities dealing with the case "did not act arbitrarily or otherwise in disrespect to the Applicant's rights under Article 8 of the Convention".

28. I do not consider that case as of decisive importance but I believe that the comments of Lord Woolf in the Brady and the BBC cases that I have quoted can still after the HRA came into force be regarded as good law because the approach to which I have referred in Kebilene, Mahmood and Daly demonstrates that the English courts will continue to defer to the views of bodies like the Commission even after the HRA came into force. In summary, the type of balancing operation conducted by a specialist body, such as the Commission is still regarded as a field of activity to which the courts should and will defer. The Commission is a body whose membership and expertise makes it much better equipped than the courts to resolve the difficult exercise of balancing the conflicting rights of Ms. Ford and Mr. Scott to privacy and of the newspapers to publish. Put in other way, the courts should only interfere with decisions of the Commission when in the words of Lord Woolf, "it would be clearly desirable to do so". So the threshold for interference by the courts is not low as it must be satisfied that it is not merely desirable but clearly desirable to do so

29. I must now comment on two general points made by Mr. Robertson. First, he drew my attention to some English authorities, a decision of the Supreme Court of Canada in Aubry v. Editions Vice Versa Inc [1998] 1 SCR 591and various European cases which illustrate the importance attached to the right to privacy. Nevertheless, as I have already indicated my task is not to determine if Ms. Ford's rights to privacy were infringed by the surreptitious taking of the photographs or their subsequent publication but to decide whether Ms. Ford has an arguable case for exercising the limited supervisory powers of the Administrative Court.

30. Second, I accept the claimant's submissions that in dealing with Ms. Ford's complaints about the determination, I should attach great importance to the fact that the photographs of her and Mr. Scott were taken in a clandestine manner. In R. v. Broadcasting Standards Commission ex parte BBC [2000] 2WLR 1327, Lord Woolf considered that the fact that the filming is clandestine "can add an additional ingredient" as clandestine filming "prevents those being filmed taking any action to prevent what they are doing being filmed" (Paragraph 37). Hale L.J. considered the fact that "infringement consists in depriving the person filmed of the possibility of refusing consent" and she attached particular weight "to the context which is not only the secret filming without consent but also the potential use in the mass media without consent" (Paragraph 43). In this case, the clandestine long-lens photography used meant that Ms. Ford and Mr. Scott were deprived of not only the opportunity of refusing to consent to be photographed but also of the opportunity of moving out of sight of the camera or of taking steps to ensure that no newsworthy photographs were taken of them. I can well understand why Ms. Ford and Mr. Scott were very upset about the way in which these photographs were taken and it is a legitimate point to bear in mind as I now turn to consider the substantive complaints made by Ms. Ford about the determination.

31. Ms. Ford contends that the Commission made errors of law in the way that they applied the code when considering her complaint. She first contends that the Commission erred in applying Clause 3 (ii) of the Code by determining that as the place where the Claimant was when the photograph was taken was a publicly accessible Majorcan beach, the Claimant could not have had a "reasonable expectation of privacy". The relevant comment of the Commission in the determination was that "it could not conclude that a publicly-accessible Majorcan beach was a place where the Complainants could have had a reasonable expectation of privacy". It is said that the determination means that a place ceases to be a place where there is a "reasonable expectation of privacy" once the public have access to it and that this interpretation "empties the code of its meaning".

32. Mr. Robertson attaches importance to the reference in the determination to " a publicly accessible Majorcan beach" as opposed to " this publicly accessible Majorcan beach" and he says that the Commission is laying down a general rule, which is erroneous. Statements like this have to be considered in the context in which they appear in the determination as this throws light on what they mean or would be understood to mean. The rest of the determination shows that the Commission was only dealing with the specific complaint of Ms. Ford concerning the specific photographs published in the two publications. This entailed considering the position of the claimant on this particular beach when the specific photographs were being taken in the light of all other factors s pecifically referred to in the determination.

33. Mr. Pannick QC on behalf of the Commission points out that before making the comment of which criticism is now made, the determination recognised that long-lens photography has been used without obtaining consent and in the light of the provisions of the code, this finding logically led on to consideration of the question of whether when the photographs were taken Ms. Ford had a reasonable expectation of privacy. He contends that this criticism has to be looked at in the light of the undisputed facts, which are set out in the determination. Of these, he points out that the most significant were first that "there did not appear to be any evidence that the beach [on which the photographs were taken] was private and was not generally accessible to the public" and second that "neither had the assertion that the beach [on which the claimant was photographed] was overlooked by a number of properties unconnected with the hotel been challenged". After these points were made, the determination recorded the fact that the Commission had to "apply strictly the terms of the code" and then relied on the facts relevant to the photographs set out in the last sentence to reach the conclusion to which the claimant now takes exception.

34. So the Commission submits that it did not make an error of law when it commented that "it could not conclude that a publicly-accessible Majorcan beach was a place where the complainants could have had a reasonable expectation of privacy". In any event, it is appropriate to remember that this determination was not made by lawyers and was meant to be informal. So it should not be construed like a statute but I consider that its meaning is clear when read in the context of the preceding sentences, as it should be. I conclude that the claimant does not have an arguable case on this point in the light of the context in which this comment was made. Another factor justifying that conclusion is that for the reasons that I have already set out, the courts give substantial deference to the Commission's reasons bearing in mind the Commission's work and, in particular, that the courts will only intervene with a decision of the Commission where, in Lord Woolf's words "it is clearly desirable for the courts to intervene". This is not such a case for intervention as the Commission had ample material which entitled them to reach their determination on the issue raised in Ms. Ford's complaint to the Commission, namely whether the particular beach on which Ms. Ford was when she was photographed was a place where she had "a reasonable expectation of privacy"

35. I should add that even if there was much less deference due by this court to the determination than appears appropriate in the authorities to which I have referred, there still would not be even an arguable case that there was any justification for this court to interfere on this ground as there was adequate material to justify the decision of the Commission that there had not been a breach of Clause 3(ii) of the code.

36. The Claimant next contends that the determination contained a further error of law in respect of Clause 3(2) as the "reasonable expectation of privacy" does not merely mean a reasonable expectation of not being observed but it also meant a reasonable expectation of not having one's photograph appearing all over the mass media. It is contended that the determination did not appreciate this point. I am unable to agree as Clause 3 (ii) of the code deals with the taking of photographs while Clause 3(i) of it is concerned with the publication of them. So the issue of publication is and was appropriately dealt with when clause 3(i) was being considered. In any event, the actual decision in the determination comes under a heading entitled "adjudication", the first sentence of which states with emphasis added that "the Commission considered the manner in which the photographs were taken and whether their publication showed a lack of the respect to which all are entitled under paragraph 3 of the code". The publication had been described earlier in the determination as being in the Daily Mail and in OK and the complaint of Ms. Ford was about the publication of the photographs as appears from the parts of her witness statement to which I have already referred. It is clear that the Commission appreciated this fact when deciding whether there was a breach of Clause 3(ii) of the code. So this point of the claimant has to be rejected as unarguable irrespective of the amount of deference shown to the Commission's determination.

37. The next series of complaints of the Claimant relate to the way in which the determination dealt with the breaches of Clause 3(i) of the Code. The first alleged error of law was that in dealing with the alleged breach of this provision, the Commission ignored the circumstances in which the photographs were taken. The stark fact is that by the time the Commission dealt with Clause 3(i), it had already referred to the use of long lens photography and decided that there was no reasonable expectation of privacy and they were entitled to proceed on that basis in considering whether there had been a breach of Clause 3(i). They could, I suppose, have reconsidered the point again but that would have been a pointless exercise because they would have inevitably reached the same conclusion. Instead, they proceeded logically and sensibly to consider whether the publication showed a lack of respect for Ms. Ford and Mr. Scott in their private lives. In doing this, the Commission was sticking closely to the wording of Clause 3(i), which did not entail looking at how the photographs were taken but considering the consequences. In any event the Defendants were well aware of those circumstances, as only a few sentences earlier they had referred to the long-lens photography being used. Irrespective of whatever test of scrutiny or deference is applied and in spite of my sympathy for Ms. Ford, there is no basis for saying that there is an arguable point that the determination was flawed on this ground.

38. The next complaint is that the Commission erred in regarding the fact that the photographs were flattering as being determinative, as showing that there has no been a breach of Clause 3(1). That is not what the adjudication says because it regarded the pictures as being "innocuous and of the sort taken regularly of well-known people in public places" and that they "neither intruded into any intimacy or left the complainants open to ridicule". On that basis, the Commission took the view that for these reasons there was no lack of respect for the private life of the Complainants and these reasons were factual matters which they were quite entitled to take into consideration. So, on any test of scrutiny or deference, there is no arguable reason for suggesting that this point of the claimant makes the determination assailable .The important point is that Mr. Robertson is wrong when he contends that the Commission thought that as the pictures were flattering that fact was determinative of the issue

39. It is also suggested that the Commission was in error by considering whether there was a breach of Clause3 (ii) before considering whether there was a breach of Clause 3(i), but I reject this point for three reasons. First, there does not seem to be any reason why the approach used by the Commission for dealing with Clause 3(i) can be criticised. Clause 3(ii) deals with the taking of photographs, which was the first event complained of and which in any event preceded their publication; so it is not illogical and certainly not a mistake in law to deal with that matter first.

40. Second, in any event even if the Defendants ought to have dealt with the claim under Clause 3(i) first, they would have still made their findings about the reasonable expectation of privacy, and so the Commission would have continued its reasoning process from there. Finally, Ms. Ford has not been prejudiced by this decision and so this complaint also fails. I conclude that whether considered individually or cumulatively none of the criticisms of the determination has any merit or reaches the threshold for obtaining permission even if, contrary to my conclusion on the degree of scrutiny permitted, there was a much more limited deference due from the court to the Commission's determination.
The Delay Issue.

41. A claim for Judicial Review must be made "promptly and, in any event, no later than 3 months after the grounds to make the claim first arose" (CPR 54.5(1)). In this case, the determination was made on 6th December 2000 and was notified to the Claimant's solicitors on 7th December 2000. The claim was not filed until 22nd March 2001 which the Commission says was neither prompt nor within the prescribed 3-month period.

42. The Claimant correctly accepts that the period of 3 months commenced when her solicitors received the determination and thus the claim was not brought within the prescribed period but Ms. Ford now seeks an extension of time. In her witness statement, Ms. Ford explains that she was grateful for an article supporting her position on her complaint to the Commission written after the determination by Roderick Dadack and published in the Independent on 20th February 2001. Ms. Ford explains that she was, however "enraged by the bluntly rude and dismissive reply to it by Lord Wakeham (the Chairman of the Commission) on 27th February 2001".

43. The claimant says that having read Lord Wakeham's article, she discussed the matter with Mr.Geoffrey Robertson QC who said he thought that she had a good chance of succeeding in an application for Judicial Review. She subsequently spoke to her present solicitors and the claim for judicial review was made. The difficulty for Ms. Ford is that if a claimant after hearing of a decision,"takes no steps but waits until something consequential or dependent upon it takes place and than challenges that, [the claimant] runs the risk of being put out of Court for being too late"(per Laws LJ in R. v. Secretary of State for Trade and Industry ex parte Greenpeace Limited [1998] Env LR 415 at 424). That is precisely what happened here as it was the article by Lord Wakeham and not the determination that apparently triggered Ms. Ford into consulting Mr. Robertson QC. In any event, Ms. Ford does not give any dates for the conversations with Mr. Robertson QC or her present solicitors but the article by Lord Wakeham was written on 27th February 2001 which was near the end of the three month period after she had been notified of the determination. The onus is on her to show that there is a reasonable explanation for the delay but her conversations with her lawyers cannot assist. If they took place outside the three-month period, they would be irrelevant as being too late but if they took place within that period, I cannot see why they have any probative value, especially in the absence of further evidence about them.

44. The Claimant also seeks to justify her delay in commencing the judicial review proceedings by seeking to rely on the conduct of the Commission. Thus it is said in her originating application that, "Miss Ford was not informed by the [Commission] of any appeal or avenue of review in the letter dated 7th December 2000". I cannot understand how that can justify the delay as the Commission did not owe her any duty to give such an explanation especially as firstly for the purpose of making the complaint to the Commission, she had retained the services of a prominent solicitors firm with great expertise in human rights law and secondly she had not asked the Commission about any appeal or review procedure. Another point relied on by the claimant is that the Commission's report of 24 January 2001 "also included the apparently inconsistent decision in respect of the complaint relating to HRH Prince William". I cannot understand how this can justify the delay in starting the present proceedings especially as Ms. Ford's solicitors raised that ruling with the Commission on 21 November 2000, which preceded the determination of Ms. Ford' s complaint. I am unable to accept that these points individually or cumulatively justify the delay in bringing these judicial review proceedings.

45. The Claimant also refers to " fundamental and important issues" raised by this claim for Ms. Ford and the right to respect for private and family life with the result that "it will be unjust to reject the application for permission [on grounds of delay] as this claim is otherwise meritorious". Even if I had found that this claim for judicial review had legal merit, I would have been unable to accept that bold submission as using that fact to justify an extension of time; as if correct, it would mean that the rules on the time limits for submitting an application were of no value and could be ignored if the arguability and significance of the claim could of itself constitute a good reason to extend the time. This would mean that the rules on the circumstances for extending the three-month time limit were subject to an overriding factor based on the strength of the claim.

46. There is no justification or legal basis for this contention or for the submission that the time for making the application by the claimant should be extended as the Commission and the Interested Parties have not been prejudiced by the delay. Mr. Robertson drew my attention to a passage in Civil Procedure (spring 2001) in which reference is made at page 47 to a decision in Commissioners of Customs and Excise v. Eastwood Care Homes (Ilkeston) Limited (The Times 7 March 2000). That case according to the note establishes, as I believe to be the position, that time limits are there to be observed and that justice might be seriously defeated if there was laxity in respect of compliance with them. The stark fact is that the legislature has decided that there should be a 3 month time-limit for bringing judicial review applications with limited powers to extend, which cannot be invoked merely because the defendant or the Interested Parties have not suffered prejudice as a result of the delayed application. So, I conclude that Ms. Ford cannot avail herself of those powers. For all those reasons, the claim of Ms. Ford is time-barred.

47. I repeat that my task has not been to consider an appeal on the facts from the determination of the Commission nor is it to give my views on whether the taking of the photographs or publishing them in the Daily Mail or OK infringes Ms. Ford or Mr. Scott's right to privacy. My function is simply to determine whether there are arguable grounds for invoking this court's limited supervisory jurisdiction over the Commission. Like the Commission, I sympathise with Ms. Ford as the publication of these photographs obviously caused her great unhappiness but for the reasons that I have expressed and in spite of Mr. Robertson's sustained submissions, I reject Ms. Ford`s application for permission to judicial review the decision of the Commission.


© 2001 Crown Copyright


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