Privacy rights when you don’t expect them - the case of JR38

Yesterday, the Supreme Court unanimously dismissed an appeal by an Appellant involved in rioting in Derry in 2014.

The Appellant (referred to as "JR38") was 14 when the rioting occurred, and photographs taken of him while it was taking place were subsequently published in the Derry News and Derry Journal respectively as part of a police campaign to identify wrongdoers. The Appellant complained that the publication of the photographs violated his privacy rights under Article 8 of the European Convention of Human Rights ('ECHR').

The really interesting part of this case was the Court's analysis of when Article 8 is engaged.  Is it engaged only where the individual concerned has a reasonable expectation of privacy, or can people have privacy rights even when they don't expect to?

Divisional Court decision

The Court noted that Article 8 is the provision of the ECHR with the "broadest potential scope of application", and therefore the engagement of this right covers a wide ambit of an individual's activity.

The majority of the Divisional Court held that the Appellant's Article 8 rights were engaged because (in a slightly circular explanation): 

"Given the breadth of the concept of private life the publication of photographs suggesting that police wished to identify this child in connection with these serious offences was an intrusion into his private life". 

However this was not a unanimous reading of Article 8, with Higgins LJ concluding that it was not engaged in this case because: 

"The answer to the question whether a private life right exists in a public setting will be found by considering whether the person had a reasonable expectation of privacy in the public circumstances in which he placed or found himself.  In this case the applicant placed himself in public view among a crowd of other persons engaged, allegedly, in public disorder.  He was open to public view by anyone who happened to be watching, be they police of civilians.  He took the risk of his presence and any activities being observed and noted down or otherwise recorded". 

Despite the majority ruling that the Appellant's Article 8 rights were engaged, JR38's claim failed because the interference with this right was said to be justified as it was necessary for the administration of justice and was not excessive in the circumstances. The Appellant appealed. 

Supreme Court decision  

The Supreme Court unanimously dismissed the appeal, however the tribunal was again divided on whether Appellant's Article 8 right was engaged.

Lord Kerr noted that prima facie, the taking and use of a photograph of an individual will fall within the ambit of Article 8.  However, he commented that: 

"The essential question is whether it is removed from that ambit because of the activity in which the person is engaged at the time the photograph was taken and because the person could not have a reasonable expectation that his or her right to respect for private life arose in those particular circumstances". 

Those that thought Article 8 was engaged  

Lord Kerr, with whom Lord Wilson agreed, held that Article 8 was engaged; although, like Divisional Court, he decided the interference was justified for the prevention of crime and prosecution of offenders.  

He held that a nuanced approach was needed to reach a conclusion on whether Article 8 was engaged.  It was necessary to not only examine whether the person asserting the right had a reasonable expectation of privacy, but also other factors such as an applicant's age, consent, the risk of criminalisation or stigmatism and the purpose that the photographs were used for. 

"To elevate reasonable expectation of privacy to a position of unique and inviolable influence is to exclude all such factors from consideration and I cannot accept that this a proper approach. 

As I have said, reasonable expectation of privacy will often be a factor of considerable weight; it might even be described as 'a rule of thumb' but to make it 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". 

Lord Kerr determined the key issue was not the rioting itself but the publication of the photographs and the potential effect this would have had.  He held that given the age of the Appellant when the photographs were published, and recognising the potential effect that the publication may have had on him, it was clear that Article 8 must be engaged. 

Those that didn't  

Conversely, Lord Toulson, with whom Lord Clarke agreed, held that Article 8 was not engaged. 

Lord Toulson noted that the "touchstone" for engagement of Article 8 is whether the Applicant had a reasonable expectation of privacy.  That interaction in the form of a public riot "is not the kind of activity which article 8 exists to protect".  There was no reasonable expectation of privacy in these circumstances.  He held that in any event, if Article 8 was found to be engaged, the interference would be justified. 

Lord Clarke agreed with Lord Toulson, commenting that 

"… the criminal nature of what the appellant was doing was not an aspect of his private life that he was entitled to keep private …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".  

Comment 

The test of whether a person had a reasonable expectation of privacy is already a difficult one to apply when trying to predict whether publishing articles or otherwise making information available will engage someone's Article 8 rights. If Lord Kerr is right, and it is possible for Article 8 to be engaged even in cases where the person involved could not have expected privacy, that can only make things even harder for publishers.  

It may be that Lord Toulson's conclusions, coupled with the fact that Lord Kerr still placed significant stress on a person's reasonable expectations, mean that the analysis will remain the same in most cases.  However, there must now be some cases where Article 8 will have a broader scope than was previously thought… 

Written by Elizabeth Wiggin and Harry Kinmonth