Reference:  EWCA Civ 1567
Court: Court of Appeal (Civil Division)
Judge: Elias and Sharp LLJ
Date of judgment: 11 Nov 2014
Summary: Privacy - Interim Injunction - Articles 2, 3, 8 and 10 of the European Convention - Permission to Appeal - Whether Permission to Appeal should be given to appeal judgment below - Whether there was a risk to the applicant's life from showing his appearance on a television programme
Justin Rushbrooke QC - Leading Counsel (Appellant)
Adam Speker QC (Appellant)
Instructing Solicitors: Kingsley Napley LLP for the applicant; in-house solicitor for the respondent
The BBC was proposing to broadcast a Panorama programme about the applicant, an undercover journalist who for many years worked at the News of the World and was known as the fake sheikh. He specialised in sting operations. The applicant sought injunctive relief to stop the BBC from showing his appearance on the programme on the grounds that there was a real risk to his life or of violence if he was identfied or it was a disproportionate interference with his private life. He was not seeking to stop the broadcast in its entirety.
On Friday 8 N0vember 2014, Eady J refused the applicant’s application for an interim injunction on the basis that there was insufficient evidence of an increased risk of violence or a threat to his wellbeing and safety arising out of the proposed broadcast to engage articles 2 and/or 3 and in consequence his right to an injunction was precluded by s12(3) of the Human Rights Act 1998.
The applicant appealed to the Court of Appeal who heard an expedited application for permission to appeal on Monday 11 November 2014.
Whether permission to appeal should be granted and, if so, whether the appeal should be allowed.
(Refusing permission to appeal)
The case stood or fell on the article 2/3 allegation and not under article 8. Any interference with the applicant’s article 8 rights could not outweight the legitimate public interest in publishing his photograph as part of the overall purpose of the programme, which was to expose his allegedly improper methods.
On articles 2 and/or 3 the judge reached a conclusion he was plainly entitled reach. The Court cited 6 reasons: the argument was raised late in the day; there was already a great deal of information identifying the applicant; the submission that he looked very different today was a mere assertion; he said he changed his appearance frequently and there was no reason he could not do so again; he made a similar application in 2006 and failed; any real risk would only arise if he travelled.
The Court of Appeal gave short shrift to the application for permission. There remains however a serious question in English law whether and to what extent image and or appearance engages article 8 as Eady J recognised.