In the matter of an application by JR38 for Judicial Review (Northern Ireland)

Whether publication of a photograph engages article 8 of the European Convention on Human Rights and Fundamental Freedoms depends on an objectively reasonable or legitimate expectation of privacy, assessed broadly in all the circumstances. A child’s age, the activity and location, the purpose of publication, consent and likely effects are relevant.

Prompt, limited publication by police to identify participants in public rioting did not engage article 8 on the facts. Alternatively, publication was justified. It pursued important crime-prevention and youth-diversion aims, followed exhaustive attempts at identification by less intrusive means and struck a fair balance between individual and community interests.

The appellant was 14 when the police supplied local newspapers with a photograph apparently showing him participating in public rioting. The publication formed part of Operation Exposure, which sought public assistance to identify offenders after internal police inquiries and approaches to community representatives had failed.

The Northern Ireland Divisional Court dismissed his application for judicial review: [2013] NIQB 44. Its majority held that article 8 was engaged but that publication was justified; Higgins LJ considered that article 8 was not engaged.

The Supreme Court refused to entertain a new challenge to police retention of the images because it had not been raised below and the necessary evidence was absent. The remaining issues were whether publication engaged the appellant’s right to respect for private life and, if so, whether the interference was lawful, pursued a legitimate aim and was proportionate.

1. Disposition. The appeal was dismissed unanimously. By a majority, Lord Toulson and Lord Clarke, with Lord Hodge agreeing, held that article 8 was not engaged. All five Justices held that, if there had been an interference, it was justified.
2. Engagement of article 8. The majority held that the governing inquiry was whether the claimant had an objectively reasonable expectation of privacy, or legitimate expectation of protection and respect for private life. The test is broad and contextual. It takes account of the claimant’s attributes, the nature and location of the activity, the nature and purpose of the intrusion, consent, likely effects and the use of the information. Childhood is relevant but does not displace the test.
3. The appellant had no reasonable expectation that photographs of his participation in public rioting would not be published promptly and for the limited police purpose of identifying those involved. The criminal activity occurred openly, and publication for identification was far removed from the personal autonomy which article 8 protects. Different purposes, delayed republication or systematic retention might produce a different conclusion.
4. Minority reasoning on engagement. Lord Kerr, with Lord Wilson agreeing, considered that article 8 was engaged. In their view, reasonable expectation of privacy was an important factor but not an inflexible prerequisite. The appellant’s age, the publication rather than mere taking of his photograph, the absence of consent and the risks of criminalisation and stigma brought publication within article 8. This reasoning did not command a majority.
5. Alternative, unanimous ground. Applying the four-stage proportionality framework in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, publication was justified. It was in accordance with law under section 32 of the Police (Northern Ireland) Act 2000 and the Data Protection Act 1998. It pursued the legitimate and pressing aims of detecting and preventing crime, bringing offenders to justice and diverting young people from offending.
6. Operation Exposure was rationally connected to those aims. Publication was a genuine last resort after internal inquiries and approaches to community representatives and social services had failed. No less intrusive method was feasible. The policy also prioritised diversion over prosecution and considered children’s welfare, the risk of targeting and the danger of stigma. The balance therefore fell firmly in favour of publication, having regard both to the appellant’s long-term interests and to the serious community harm caused by persistent sectarian violence.
7. New ground. The challenge to retention of the images was not permitted because it had not been considered below and the evidential basis needed to determine it was absent.

1. United Kingdom Supreme Court: Dismissed the appeal unanimously. A majority held that article 8 was not engaged; the court unanimously held in the alternative that any interference was justified. The decision of the Divisional Court, [2013] NIQB 44, therefore stood.
2. Northern Ireland Divisional Court: Dismissed the application for judicial review. Morgan LCJ and Coghlin LJ held that article 8 was engaged but publication was justified. Higgins LJ held that article 8 was not engaged.