In the JR38 case, the Supreme Court today unanimously dismissed the appeal
of a young man who’d argued that his article 8 Convention right to respect for private life was breached where newspapers published, on the police’s request, photos of him apparently taking part in a riot, aged 14. But the Justices were not unanimous in their reasoning.

A majority (Lords Toulson and Clarke, with whom Hodge agreed) ruled that the right to private life is not engaged at all in these circumstances. Riot isn’t an activity which the right to respect for private life exists to protect, they said; and there’s no reasonable expectation of privacy in relation to the publication of such photographs.

Dissenting, Lord Kerr (with whom Lord Wilson agreed) said the reasonable expectation of privacy isn’t the be-all and end-all, since a child’s need for protection can go beyond what an adult could reasonably expect. A child’s identity is protected by the Convention right to privacy when subject to criminal proceedings.

All the Justices agreed, though, that publication as a last resort to identify offenders was justified and proportionate.

Most of the written judgments is taken up by the debate about whether the article 8 right applies at all,  and competing analyses of previous case law. Lord Kerr focused on children’s rights, and the philosophy behind rules protecting the anonymity of child offenders. He said (para. 48)

It does not lie easily with the scheme of protection of a child’s identity envisaged by this provision that the publication of his photograph, for the very purpose of enabling those who know or recognise him to identify him in the course of criminal activity, should not fall within the scope of a Convention provision which guarantees his right to respect for a private life.

The notion that it should not, he said (para. 50)

is distinctly out of step with the philosophy which underpins article 3(1) of [The UN Convention on the Rights of the Child]. That philosophy, so far as it relates to criminal proceedings against children, is prominently proclaimed in article 40(2)(vii) of the Convention which requires states who are party to the Convention to ensure that the child’s privacy is fully respected at all stages of the proceedings.

The core of his reasoning is at para. 53:

A child’s identity should be protected even (or, perhaps, especially) when he or she has been subject to criminal proceedings. The ambit of article 8 of ECHR must be seen as including within its embrace the need to protect a child from exposure as a criminal. That it should apply to the publication of a photograph of a child while, apparently, engaged in criminal activity, must follow inexorably. I consider, therefore, that there has been an interference with the appellant’s article 8 right.

He rejected the idea that a “reasonable expectation of privacy” test was alone decisive (para. 56):

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.

It would be facile, he said (para. 65)

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.

It’s especially interesting that Lord Kerr gave the lead judgment, outlining the facts of the case. Usually, you’d expect the Justice giving the lead judgment to be in the majority. Lord Kerr’s being a Northern Irish judge might explain it (since this was a Northern Irish case, about rioting in Derry). But it may also be that one of the other Justices changed his mind between the first conference where they discussed the case, and finalisation of the draft judgments.

Lord Toulson and Lord Clarke both write for the majority. Lord Toulson did not see the appellant’s age as critical (para. 95)

The fact that the appellant was a child at the relevant time is not in my opinion a reason for departing from the test whether there was a reasonable (or legitimate) expectation of privacy, but it is a potentially relevant factor in its application.

He did not therefore agree (para. 98)

with Lord Kerr’s suggestion (para 55) that the test of reasonable expectation of privacy … excludes from consideration such factors as the age of the person involved, the presence or absence of consent to publication, the context of the activity or the use to which the published material is to be put. The reasonable or legitimate expectation test is an objective test. It is to be applied broadly, taking account of all the circumstances of the case … and having regard to underlying value or values to be protected.

This seems to be a narrow, somewhat academic disagreement: is the “reasonable expectation of privacy test” just one step in deciding whether the right to private life applies, or are other factors (like the age of the person involved) enfolded within it? But Lord Toulson’s insistence on the need for a reasonable expectation of privacy led him to different conclusions from Lord Kerr (para. 100):

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.

Lord Clarke agreed (para. 109)

It is difficult to see why article 8.1 should be engaged where the applicant has no reasonable expectation of privacy. It is important in this respect to have regard to the fact that the concept of reasonable expectation is a broad objective concept and that the court is not concerned with the subjective expectation of the person concerned, whether that person is a child or an adult.

He agreed with Lord Toulson that the criminal nature of what the appellant was doing was not an aspect of his life that he was entitled to keep private (para. 112)

He could not have had an objectively reasonable expectation that such photographs, taken for the limited purpose of identifying who he was, would not be published. I would not however hold that the mere fact that a person is photographed in the course of a criminal activity deprives him or her from the right to prevent the police from publishing the photographs. Thus, if the photographs had been published for some reason other than identification, the position would have been different …

This is an important an interesting case on the application of the Convention right to respect for private life. The ruling that article 8 does not apply at all matters, because it means police and newspapers will arguably not even have to justify publication of photos in circumstances like these in future (although I imagine in practice they’ll adopt a cautious approach to bring themselves within the court’s unanimous view).

I wonder whether this case will now to to the European Court of Human Rights in Strasbourg – and whether that court might be attracted by Lord Kerr’s “children’s rights” inflected approach to privacy.

2015-07-01T16:36:38+00:00Tags: , , |