Capturing the images of children, whether by the press or the state, is fraught with difficulty. The Supreme Court considered the issue recently in Re: J38 [2015] UKSC 42 but even it was unable to agree. Its importance in the operational planning of covert surveillance is acute; the Code of Practice on Covert Surveillance suggests, at paragraph 1.14, that if the activity engaged does not amount to an interference with privacy, the Regulation of Investigatory Powers 2000 is not engaged.

J38 was a juvenile whose image had been captured by police officers during rioting in Derry in 2010. There was an attempt to engage with community representatives in order to identify him and explore an out of court disposal but these efforts failed. The images were later published in the Derry Journal and Derry News on 23 and 26 July 2010 respectively. J38 was not identified until the following May and was then charged with riotous behaviour and other offences. J38 brought a challenge under the Human Rights Act 1998 for a declaration that the publication of the photographs breached his rights under Article 8 of the European Convention on Human Rights and could never in principle be necessary or proportionate.

The police argued on the appeal that J38 could not have a reasonable expectation of privacy where he had willingly engaged in acts of disorder in a public street. He argued that a reasonable expectation of privacy was not determinative of Article 8 being engaged, particularly in the case of a minor. At best it was one of a number of factors that needed to be considered.

Lord Kerr (with whom Lord Wilson agreed) used as the starting point the well known case of Campbell v MGN Limited [2004] UKHL 22 and Lord Nicholls often cited statement of principle, “the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy”. This was followed in Kinloch v HM Advocate [2012] UKSC 62. In Kinloch, police officers had covertly followed a suspect in public places but this had not been authorised as directed surveillance. Lord Hope in that case had held that whilst interference with private life could arise even in a public context, Article 8 was not engaged, where, “a person knowingly or intentionally involves himself in activities which may be recorded or reported in public, in circumstances where he does not have a reasonable expectation of privacy”.

Kerr SJ in J38 attempted to search for some underlying principle behind the judgment in Kinloch. The engagement of the right to privacy (as opposed it justification) covered a wide range of activity and varied not only to the conditions in which it is invoked but also the individual’s circumstances. The concept of reasonable expectation of privacy, particularly in the case of children, as a determinative test, should, held Lord Kerr, be approached with some caution. Engaging in criminal activity is only one of the factors to be taken into account.

The fact that the individual is a child at the time of publication is important. The criminal justice system presumptively protects their identity from disclosure other than in exceptional circumstances. International law recognises that all actions concerning children must give the child’s best interests primary consideration. Lord Kerr was of the view that in light of this, it followed inexorably, that a child’s identity, even when he or she had engaged in criminal activity in a public place, should have the protection of the law and there had been an interference with Article 8 on the facts. This did not mean the test of reasonable expectation of privacy had no role; on the contrary, it remained of considerable importance in appropriate cases as one of the factors to be afforded weight in evaluating whether on the facts of the case there was likely to be an interference with the individual’s privacy. In the case of an adult, engaging in crime in a public forum, “such a person could not have a reasonable expectation of privacy for his criminal activity”. However this was because in assessing whether there was an interference with privacy, the expectation of privacy factor outweighed others. It was not to be afforded a unique significance or have the effect of an automatic consequence; a more nuanced approach was required.

Lord Kerr identified a series of considerations (including the expectation of the person affected in terms of their privacy rights):

– the age of the subject

– the consent of the individual involved (this is unlikely to arise where there will be no publication of the image but still has implications for the management of the material if it is to be used as evidence)

– whether it is likely to criminalise or stigmatise the individual concerned if the material is published

– the place where the conduct took place (is there something unusual about it that places it in a separate category)

– the use the material is to be put

– any other relevant circumstance

He approved of, as in fact did each member of the court, the approach of the Court of Appeal in Murray v Big Pictures Limited [2008] 2 WLR 1360 at paragraph 36.

It was also important not to conflate the question of whether there was an interference with privacy and justification for interfering with it. On the facts, Lord Kerr was satisfied that in the case of J38 publication was in fact justified. It was in accordance with the law and necessary.

Lord Touslon and Lord Hodge disagreed with Lord Kerr on whether Article 8 was engaged on the facts of the case. The reasonable expectation of privacy threshold remained sound as the primary test and did not exclude the range of factors identified by Lord Kerr. It was an objective test, applied broadly and taking account of all the circumstances of the case. It did not include, even in the case of a minor, rioting in a public place. It was entirely consistent with the position in Kinloch, “the criminal nature of what he was doing, if that it is what it was found to be, was not an aspect of his private life that he was entitled to keep private”. However, even if it had been an interference with J38’s privacy, Lord Kerr was right that it was, on the facts, justified.

Lord Clarke agreed with Lord Toulson’s analysis of Kinloch. The criminal nature of J38’s conduct was not an aspect of his private life. The question of the subject being a child is relevant but ought not to be given the prominence afforded to it by Lord Kerr.

This division of opinion by the most senior judges in the country gives an insight to how difficult the question of interference with privacy is. The judgment is also further authority for the proposition that the privacy rights of those engaged in criminal activity may be less than those of the law abiding but only where there is a subsequent finding that they engaged in the conduct alleged.

The following principles can be identified:

– the question of “reasonable expectation of privacy” is not one dimensional and may involve consideration of the list of factors identified by Lord Kerr and by the Court of Appeal in Murray.

– any one of these factors could lead to a different decision on the question of whether the conduct amounts to an interference with privacy. It is essential the decision is reached after considering the facts of the case and this can be evidenced if required at a later date.

– where the surveillance or monitoring is likely to involve the acquisition of private information concerning a child, then special care may, depending on the facts, be needed.

– where the target is engaging in criminal activity in a public place, this may reduce or in some cases even negate their expectation of privacy

– acquiring the material is one thing; retention and dissemination is another so having a retention and disclosure policy is essential for legal compliance.

© Simon McKay (2015). Please ask for my permission before using or copying the material contained on this blog. If you do attribute it to me with a link to the original content. This is opinion, not legal advice.