Application for judicial review of a decision by the PSNI to release to local newspapers for publication images of persons suspected of being involved in sectarian rioting and violent offending at an interface area at Fountain Street/Bishop Street Londonderry in May, June and July 2010. The applicant, a child who was born in July 1996, claims one of the images released by the PSNI and published in two local newspapers is an image of him. He seeks judicial review on the single ground that ‘the use of the operation known as Operation Exposure to identify and highlight children and young persons involved in criminal activity as part of a name and shame policy without due process is in breach of the applicant’s rights pursuant to Article 8 of the European Convention on Human Rights’.
Held: The claim failed: ‘The police are under a duty to protect the community and to prevent and investigate criminal acts. One aspect of their investigations will involve the gathering of evidence and exhibits. The photographs represent real time evidence of alleged criminal acts. The police must be entitled to make use of such evidence in seeking to identify offenders by name. Their use in any criminal trial will be governed by the rules relating to the admissibility of evidence. Of course the police must be sensitive to the nature of the evidence which they may wish to publicise. In this instance the police exercised care in carrying out Operation Exposure and were sensitive to the issues involved, conscious that many of those photographed were young people. They engaged with the local community but in particular they carried out a human rights assessment of what they proposed to do. This was extremely comprehensive and went much beyond what, in my view, they were required to do.’
As to whether Article 8 was engaged, Morgan LCJ said: ‘In this case the photograph is not just an image of the child. It is part of a context which discloses to the public that the child in the image is at least wanted for interview in connection with possible involvement in serious public disturbances. At the time of publication it had not been established that the child had participated in any offence. The domestic and international provisions set out at paras 23 to 26 above [section 53 of the Justice (Northern Ireland) Act 2002, article 22 of the Criminal Justice (Children) (Northern Ireland) Order 1998, the Beijing Rules, the United Nations Convention on the Rights of the Child (UNCRC)] indicate the importance of respecting the privacy of children in the criminal justice system because of the risk that they will become stigmatised with a consequent effect on their reputation and standing within the community. If participation in criminal activity is established their rehabilitation may thereafter be impaired. 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.’
On the engagement of Article 8, Higgins LJ said: ‘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 or civilians. He took the risk of his presence and any activities being observed and noted down or otherwise recorded. What was the aspect of his private life which was in issue at that stage? None has been ventured. There must be an onus on the applicant to establish the aspect of his private life which he states is engaged at that stage or to characterise the interest which he seeks to protect. As in Kinloch there can have been no expectation of privacy in the circumstances of the instant case. The criminal nature of his activities or his presence, (if that is what they are), are not aspects of his life which he is entitled to keep private. Such activities should never be an aspect of private life for the purposes of article 8. In my view a criminal act is far removed from the values which article 8 was designed to protect, rather the contrary. In this case the applicant was photographed by the police, rather than his presence or activities simply noted down. I do not consider that is a material distinction. The photograph is probably a more accurate record of what is on-going. In my view the taking of the photographs of the claimant, in the particular circumstances of this case, did not amount to a failure to respect any aspect of the claimant’s private life within article 8(1).’
Morgan LCJ, Higgins LJ
[2013] NIQB 44
Bailii
European Convention on Human Rights 8
Northern Ireland
Cited by:
Appeal from – JR38, Re Application for Judicial Review (Northern Ireland) SC 1-Jul-2015
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Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
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Lists of cited by and citing cases may be incomplete.
Police, Media, Human Rights, Children
Updated: 14 November 2021; Ref: scu.511140