J38 [2015] UKSC 42 – Article 8

In J38 [2015] UKSC 42 the Appellant was, in 2010, 14 years old. Two of the newspapers in Northern Ireland carried photographs of him, taken from CCTV images, in respect of a Police Operation called “Operation Exposure”, in order to publish photographs of those involved in riotous behaviour in Londonderry as part of a campaign organised by the Police to combat sectarian riots in areas within the City.

The Appellant had contended that by publicising photographs of him his Article 8 rights, “a breach of his right to respect for a private life under article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR)” had been violated.

The Divisional Court considered the position by looking at the issue as follows:

  • “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.”

A majority in the Divisional Court held that the boy’s Article 8 rights were engaged.
The interference was justified as it was necessary for the administration of justice and not excessive in the circumstances.

In the Supreme Court the Lords all agreed to dismiss the appeal. Lord Kerr held that Article 8 was engaged but in these circumstances the interference with the rights was correct and Lord Wilson agreed with this. Lord Toulson and Lord Hodge however held that Article 8 was not engaged but if it had been, the publication of the images of the Appellant would be appropriate in the circumstances. Lord Clarke agreed with Lord Toulson.

Lord Kerr in his judgment looked at the facts in this case together with an expectation of privacy and Article 8 rights. He noted the Appellant was a child, the interference of his Article 8 rights by the publication of the photographs and his parents’ consent had not been given.

He continued

  • “The test for whether article 8 is engaged is, essentially, a contextual one, involving not merely an examination of what it was reasonable for the person who asserts the right to expect, but also a myriad of other possible factors such as the age of the person involved; whether he or she has consented to publication; whether the publication is likely to criminalise or stigmatise the individual concerned; the context in which the activity portrayed in the publication took place; the use to which the published material is to be put; and any other circumstance peculiar to the particular conditions in which publication is proposed.”

Lord Kerr considered further

  • “When one focuses, as one must, on the publication of the photographs of the appellant, rather than the activity on which he was engaged, and when one recognises the potential effect that their publication might have on the life of the child that he then was, it is not difficult to understand that article 8 must be engaged. It would be facile to say that, because he was rioting, he cannot have expected that a right to respect for private life would be engaged and, on that account alone, it was not engaged. A child’s need for protection can go beyond what, if he was an adult, he would be reasonably entitled to expect”.

He also noted that the Police could, under the Data Protection Act 1998, publicise the image of the Appellant in pursuance of prevention of crime, arrest and prosecution of those committing criminal acts. In this matter, which involved sectarian violence in areas of Derry, this was a priority for the Police in order to prevent any further escalation of trouble.

As Lord Kerr observed, publicising the images was not a competition but a balance between the rights of a person against those of the area and community. It was correct for the Appellant to be diverted from that course of action and become a valuable member of that community. He continued that the interests of inter-community friendship were paramount and the Police Operation had achieved this.

For these reasons and those given by the Lord Chief Justice he continued

  • “the balance fell firmly on the side of pursuing the option of publication of the appellant’s photographs and those of others involved. The way in which he and others who were thus identified have been dealt with is testament to the benefit that was available to them by following that course.The benefit to the community is as unquestionable as it is considerable”.

Lord Toulson did not believe that the Appellant’s actions were protected by Article 8 and that he could keep this as a private matter. He concluded that Article 8 was not engaged.

He also found that if Article 8 had been engaged then interference with that right would be justified for the reasons put forward by Lord Kerr.

Lord Clarke held that Article 8 was not engaged or justified as the Appellant could not have reasonably believed the photographs would not be published.

All agreed that if Article 8 were engaged the publication was justified in the public interest.

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