J38, Re Application for Judicial Review (Northern Ireland) [2015] UKSC 42

A 14-year-old's photograph was published by police in local newspapers as part of Operation Exposure to identify rioters involved in sectarian violence in Derry. The Supreme Court unanimously dismissed his article 8 challenge, with judges divided on engagement but agreeing on justification.

Facts

The appellant, born 16 July 1996, was barely 14 years old when, on 23 and 26 July 2010, the Derry Journal and Derry News published a photograph of him at the request of the Police Service of Northern Ireland (PSNI). The publication formed part of ‘Operation Exposure’, a police initiative designed to counter persistent sectarian rioting at ‘interface areas’ between the two communities in Londonderry, particularly the Fountain Street/Bishop Street interface.

Between April and July 2010 there had been at least 46 sectarian incidents and over 100 offences committed at that interface, involving approximately 75 young people. Direct arrest at the scene was impractical because rioters could outrun officers in riot gear into the Bogside. The strategy involved an elaborate, multi-stage internal process governed by guidance modelled on ACPO national guidance: investigating officers were required to exhaust less intrusive methods (door-to-door inquiries, intelligence, internal briefing pages, liaison with neighbourhood officers and social services) before publication of images could be authorised by a senior officer. Particular care, including consideration of the child’s best interests, risk of ‘punishment beating’, and apparent age, was required where juveniles were depicted.

The appellant had been interviewed on 1 July 2010 and shown CCTV footage and a booklet of 115 photographs, but did not identify himself in the image later published. He was formally identified only on 11 May 2011, after the six-month limitation period for prosecution had expired. Of 37 persons identified through Operation Exposure, only five were charged; the others were dealt with by youth diversion or youth conferencing. Sectarian crime in the Foyle district fell by 50% in July-August 2010.

Issues

The certified question was whether the publication of photographs by the police to identify a young person suspected of involvement in riotous behaviour and attempted criminal damage could ever be a necessary and proportionate interference with that person’s article 8 ECHR rights. An attempt to raise retention of images as a separate issue was refused as it had not been considered below. The court therefore addressed: (i) whether article 8 was engaged by publication; and (ii) if so, whether the interference was justified under article 8(2).

Arguments

The appellant argued that publication of his photograph violated his article 8 right to respect for private life, particularly given his age and the stigmatising effect of association with criminal activity. Counsel submitted that ‘reasonable expectation of privacy’ was not a prerequisite for engagement of article 8, especially for children, and was at most one factor.

The respondent Chief Constable argued that the appellant could have no reasonable expectation of privacy when willingly engaging in public disorder in a public street, that publication was in accordance with law (under section 32 of the Police (Northern Ireland) Act 2000 and the Data Protection Act 1998, satisfying the ‘administration of justice’ condition), pursued a legitimate aim, and was proportionate as a measure of last resort.

Judgment

The Supreme Court unanimously dismissed the appeal, though the judges differed on whether article 8 was engaged.

Lord Kerr (with whom Lord Wilson agreed) – article 8 engaged

Lord Kerr held that the reasonable expectation of privacy is but one factor amongst many relevant to whether article 8 is engaged. He emphasised the breadth of article 8, the particular position of children, and the relevance of factors including age, consent, risk of stigmatisation and criminalisation, the context of the activity, and the use to which the material is put. He drew support from PG v United Kingdom, Reklos v Greece, Sciacca v Italy, and from international instruments including article 3(1) and article 40(2)(vii) UNCRC and Rule 8 of the Beijing Rules, all of which emphasise protection of a child’s identity in the criminal justice context. He concluded that the publication of a child’s photograph in apparent commission of criminal activity engaged article 8.

Lord Toulson (with whom Lord Hodge agreed) – article 8 not engaged

Lord Toulson, applying Von Hannover v Germany, Campbell v MGN Ltd, Kinloch v HM Advocate, and R (Catt) v ACPO, held that the touchstone for engagement of article 8 is whether the claimant enjoyed a reasonable (or legitimate) expectation of privacy or protection. Applying that objective test broadly, public rioting was not the kind of ‘zone of interaction’ article 8 exists to protect. Agreeing with Higgins LJ below, this situation was ‘far removed from the values which article 8 was designed to protect’. The appellant’s status as a child did not displace the test, though it could be a relevant factor in its application (as in Murray v Express Newspapers).

Lord Clarke (with whom Lord Hodge agreed)

Lord Clarke broadly agreed with Lord Toulson, holding the reasonable expectation of privacy to be the appropriate test, applied objectively and broadly. He observed that publication for purposes other than identification might have engaged article 8. He did not consider that being a child displaced the test, though the child’s circumstances were a relevant context.

Justification

Lord Kerr (with no contrary view expressed by the other Justices) held that, even if article 8 were engaged, publication was justified. It was in accordance with law (section 32 of the Police (Northern Ireland) Act 2000; Policy Directive 13/06; and the Data Protection Act 1998, the ‘administration of justice’ condition in Schedules 2 and 3 being satisfied). Applying the four-stage proportionality test from Bank Mellat (No 2) and Aguilar Quila: the objective of tackling persistent sectarian violence was of the first order; Operation Exposure was rationally connected to it (arrest at the scene being impracticable); publication was a measure of last resort, all less intrusive means having been exhausted; and a fair balance was struck given the community benefits and the diversionary outcomes which themselves served the appellant’s long-term interests.

Implications

The decision confirms that publication by police of images of suspected offenders to assist identification can be a lawful and proportionate interference with article 8, where it forms a measure of last resort within a carefully governed policy framework, particular care is taken for juveniles, and the aim is investigation and diversion rather than punishment.

The case reveals an unresolved tension at the highest level on the conceptual question of article 8 engagement: a majority (Lord Toulson, Lord Hodge and Lord Clarke) treated reasonable expectation of privacy as the touchstone, applied objectively and contextually; a minority (Lord Kerr and Lord Wilson) treated it as merely one factor among several, particularly where children are concerned. This division leaves scope for future development, especially in cases involving children, retention of images, or publication for purposes other than identification.

The judgment is significant for police forces, for practitioners advising on data protection and human rights compliance in criminal investigation, and for those concerned with juvenile justice. It demonstrates the relevance of international standards (UNCRC, Beijing Rules) and domestic statutory protections of children’s identities (article 22 of the Criminal Justice (Children) (Northern Ireland) Order 1998) when assessing police publication strategies, while recognising the legitimate role of public appeals for identification where less intrusive means have been exhausted. The court emphasised that the question of engagement must not be conflated with the separate question of justification.

Verdict: Appeal dismissed. The Supreme Court unanimously held that publication of the appellant’s photograph as part of Operation Exposure did not breach article 8 ECHR. A majority (Lord Toulson, Lord Clarke and Lord Hodge) held that article 8 was not engaged because the appellant had no reasonable expectation of privacy when rioting in public; a minority (Lord Kerr and Lord Wilson) held article 8 was engaged but that the interference was justified as in accordance with law, pursuing a legitimate aim, and proportionate.

Source: J38, Re Application for Judicial Review (Northern Ireland) [2015] UKSC 42