In its recent judgement of 1 July 2015 In the matter of an application by JR38 for Judicial Review (Norther Ireland) [2015] UKSC 42, the UK Supreme Court held that the publication of photographs of a minor (just about 14 years old at the time of publication) suspected of involvement in criminal activities did not constitute a breach of his right to respect for his private life protected by Article 8 of the European Convention on Human Rights (ECHR).

Notwithstanding this unanimous decision, the Lords did not all agree on the reasons to justify this finding. Some might think that, given that we had unanimity in Kinloch (AP) (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2012] UKSC 62, the diversity of opinions in the JR38 judgement is a bit surprising. However, for the readers of the most recent cases decided by the European Court of Human Rights (ECtHR) such an outcome could maybe have been anticipated.

Let’s start with the facts.

“On 14 July 2010 the Derry Journal had published images of closed circuit television (CCTV) pictures which had been taken during serious rioting in Derry in July 2010. In the first of his affidavits, the appellant’s father claimed that these included images of his son. He also claimed that leaflets published and distributed by police on 16 August 2010 which again contained CCTV images of young people involved in rioting identified the appellant”.

But – and this might explain why some could have felt that the gravity of the allegations had been overstated by the appellant – the factual narrative then became clouded in two respects:

1. While the appellant’s counsel had stated that two particular images from the 14 July issue of the Derry Journal were those of the appellant, it was later established that they were not of the appellant and that they had not appear in the Derry Journal. “[I]n neither of the particular images which counsel had told the court were of the appellant, was he in fact portrayed”.
2. On 1 July 2010, so before the publication in the Derry Journal, the appellant had been questioned by the police about his involvement in rioting. On that day, while he had claimed to be able to identify himself from the CCTV footage of the rioting incidents, the appellant did not identify himself in any of the images included in the leaflets published and distributed by police on 16 August 2010.

So what did really happen? Well, some “appellant’s images appeared in issues of the Derry Journal and the Derry News published on 23 and 26 July 2010 respectively”.

Why were these pictures published in these local newspapers? They were published to help police identify the rioters in pursuance of the “Operation Exposure” procedure (extensively described in the judgement).

The view of the chief inspector was that “the young people engaged in the recent public disorder had to be identified in order to ensure an effective response to the interface violence”. At the meeting of 1 July 2010 he had thus “produced a booklet of photographs and asked all [the participants] who were present to inspect these and to help him identify those captured in the images. He said that if the persons involved were not identified at the meeting or at later private meetings which he offered to hold with any of the representatives present, he would consider having them published in the local press”. The chief inspector waited for 2 weeks before initiating the publication process.

On 1 July, the appellant and his father had been shown the images published on 23 and 26 July 2010 but had not let the police know that the appellant was actually depicted on these pictures.

It is also explained in the judgement, as per the description given by the Temporary Superintendent, that the publication in the press could only be authorised if “all reasonable steps ha[d] been taken to identify a suspect by a less intrusive means”, e.g. approaching social services first.

Finally, the appellant was arrested and charged with offences other than those relating to the publication of his photographs.

Now, where does the Lords’ disagreement lie? While they agreed that, had there been an interference with the appellant’s Article 8 right it was necessary for the administration of justice, they disagreed on whether publication of the image had interfered with his right to respect for his private life in the first place.

Lord Kerr and Lord Wilson find that Article 8.1 ECHR is engaged (although the interference can be justified on the ground of Article 8.2, on the basis that the act of publication of the image was a necessary interference by a public authority in accordance with the law), while Lord Clarke, Lord Toulson and Lord Hodge disagree and opine that Article 8.1 is not engaged on the facts of this case. This difference of opinion centres on the critical issue of whether a reasonable expectation of privacy is the sole test for deciding whether Article 8 is engaged, or whether it is just one of a number of factors that a court could take into account.

For those raised with the (evolving) case law of the ECtHR, Lord Kerr’s judgement might appear the most convincing, although it is does not seem to reflect the majority view of the Supreme Court. To shrink Lord Kerr’s opinion to its core:

1. “There is, at the least, a possible tension between the application of a reasonable expectation of privacy test and the well-established principle that any decision affecting a child should give prominence to his or her best interests”. (at [37]).
2. “The fact that the activity in which the person is engaged is suspected to be criminal will not, by reason of that fact alone, be sufficient to remove it from the possible application of article 8”. (at [41]).
3. “[T]o make [reasonable expectation of privacy] an inflexible, wholly determinative test is, in my opinion, to fundamentally misunderstand the proper approach to the application of article 8 and to unwarrantably proscribe the breadth of its possible scope”. (at [56]) (See my overview of the ECtHR’s case law here for more details)
4. “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 publications; 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”. (at [56]).

Because, for Lord Kerr, there is a prima facie interference with the right to respect for private life, he goes on by examining whether such an interference can be justified in accordance with the law. Very interestingly, he therefore assesses whether the Data Protection Act offers sufficient safeguards in the light of the ‘triple test’ usually used by the ECtHR. He concludes in this respect that, although the photograph of the appellant was sensitive personal data, there was no breach of the Act. [See also Lord Sumption’s opinion in Catt & T of 4 March 2015 for an assessment of the same act].

Lord Toulson [who had been relatively liberal in Catt & T] and Lord Hodge do not really agree on the issue of the engagement of Article 8.1.

Applying a more traditional construction of Article 8.1, Lord Toulson makes two important statements:

1. “Be that as it may, I have difficulty in reading the [ECtHR in PG] 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”. (at [93]) [So, what could the ECtHR’s sentence repeated in several decisions – “a person’s reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor” – really mean?]
2. “When the authorities speak of a protected zone of interaction between a person and others, they are not referring to interaction in the form of public riot. That is not the kind of activity which article 8 exists to protect”. (at [100]). [Such a statement is really really problematic as it would seem therefore that interferences to Article 8.1 would cease to be interferences each time they can uncover criminal activities…].

Lord Clarke’s view is somewhat in the middle of these two “extremes”, so to speak. This is how he interprets the case law of the ECtHR at [109]: “It is true that in S v United Kingdom the court does not expressly refer to the reasonable expectation of privacy but its analysis seems to me to be consistent with it. It is also true that in PG the court said at par 57 that a person’s expectations may be a significant, although not necessarily a conclusive, factor. I cannot at present think of a situation where article 8.1 would be engaged in the absence of a reasonable expectation of privacy or a reasonable expectation of protection and respect for the private life of the applicant”. But a few paragraphs later he opines in the same way as Lord Toulson and states that “I agree with Lord Toulson that on the facts here the criminal nature of what the appellant was doing was not an aspect of his private life that he was entitled to keep private”. [This would thus mean that, if a law enforcement agency systematically tap your communications without any suspicion or doubt as to whether you are engaged in criminal activity, and discover that you are engaged into criminal activity, you cannot criticize the lawfulness of the law enforcement agency’s practice – irrespective of the issue of the admissibility of evidence which should be a separate issue… Whereas if you are a good citizen, most likely unaware of the law enforcement agency’s practice… you could attack the practice…. but arguably you would not necessarily know whether this is happening….]

I am wondering… are we really sure that the issue of whether there is a prima facie breach of Article 8.1 and the issue of justification on the ground of Article 8.2 are not getting mixed up here?

What about the decision of the ECtHR in Köpke v Germany of 2010, for example, involving an applicant who had been employed as a shop assistant and cashier in a supermarket and who had been suspected by her employer of having manipulated the accounts. With the help of a detective agency, the employer carried out covert video surveillance to obtain evidence. While it is true that it is an admissibility decision, the ECtHR did find a prima facie breach of Article 8.1: “the covert video surveillance of an employee at his or her workplace must be considered, as such, as a considerable intrusion into the employee’s private life”! The fact that the employee had been suspected of involvement in criminal activities was not taken into account to characterise a prima facie breach of Article 8.1. It is true that prior notice was missing in Köpke but this does not mean that the applicant had therefore a reasonable expectation of privacy! Besides, the ECtHR expressly states that “[a] person’s reasonable expectations as to privacy is a significant though not necessarily conclusive factor”.

To conclude, are we sure that the publication of a picture depicting a minor involved in rioting (even if it is for the purpose of identifying the minor) is less problematic than the retention of records concerning a peaceful demonstrator?

Sophie Stalla-Bourdillon