Reference:  UKSC 42
Court: UK Supreme Court
Judge: Lords Kerr, Clarke, Wilson, Toulson and Hodge
Date of judgment: 1 Jul 2015
Summary: Article 8 – reasonable expectation of privacy – children – crime – police – Northern Ireland – publication of private information – data protection
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Instructing Solicitors: MSM Law for the Appellant, Crown Solicitors Office for the Respondent
The Appellant was involved in rioting in Derry in 2010, when still only 14 years of age. In order to identify those responsible, and for the sake of deterrence, the police published CCTV footage depicting the Appellant in two newspapers.
The Appellant sought to bring a claim for breach of his Article 8 rights against the police for publication of his photograph. The application for judicial review was dismissed by the Divisional Court (Morgan LCJ, Higgins & Coghlin LJJ) on 21 March 2013, with the majority finding the interference justified, but Higgins LJ holding that Article 8 was not even engaged.
“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?” [at 28]
Dismissing the appeal:
The majority (Lords Clarke and Toulson giving judgments, with both of which Lord Hodge agreed) held that Article 8 was not engaged. The touchstone of engagement was whether there was an objective reasonable expectation of privacy. There was no such reasonable expectation on the facts of the case, notwithstanding that the Appellant had been a child at the time. Alternatively, all would have found the interference justified as set out by Lord Kerr.
Lord Kerr (with whom Lord Wilson agreed) held that Article 8 was engaged, by reason of the Appellant’s then-age and the effect of publication on him. The test was contextual and encompassed all factors (such as age, purpose, consent etc), not just the reasonable expectation of privacy, which would carry weight but was not itself determinative.
However, the interference with the Appellant’s Article 8 rights was justified. The police were entitled to publish within the scope of the Data Protection Act 1998, because their purpose was to deter and prevent crime. Both the Appellant and his community would benefit from him being ‘diverted’ from criminal activity, and in balancing the rights, the interference was justified.
This is a public law judgment on justified interference with Article 8, but will likely become a leading authority in private law claims in misuse of private information, for its detail clarification on the circumstances where Article 8 is engaged by the publication of photographs.
The majority affirmed the Murray v Express Newspapers test for engagement in respect of photographs of children, finding that ‘reasonable expectation of privacy’ incorporates all the contextual information, and so remains the ‘touchstone’ of Article 8 engagement.
Lord Kerr’s minority view on the matter will no doubt be of interest to those with a more expansive view of Article 8, especially in respect of elevated protection for children in privacy law.