Will publishing photos of alleged rioters infringe their human rights?
11 August 2011
In the wake of the recent violence in cities across England, the police have been releasing photographs of individuals in an appeal to the public for assistance in identifying them and bringing them to justice.
As the crisis has developed, politicians and police spokespeople have professed a strong intention to ensure that all the rioters and looters face the consequences of their actions. As of this morning, in London alone 888 people have been arrested and 371 people have been charged with offences relating to their involvement in the riots, and courts in London, Manchester and Solihull have remained open through the night in order to process these cases as swiftly as possible. Yet with the number of people involved likely to be in the thousands, there are many more who remain unidentified.
To assist with identification, the Police have been posting photographs and CCTV images of people it would like to talk to. In a statement, Metropolitan Police Commander Simon Foy said:
Those who have or intend to go out and commit violent, criminal acts should be warned. We will have photographs and evidence that we will use to identify you and bring you to justice.
Operation Withern, which is tasked with investigating the disorder in London, has now set up a dedicated webpage containing images and appealing for information. It has also made use of the photo-sharing website Flickr.
The human rights question raised by this is whether or not it is compatible with Article 8 of the European Convention of Human Rights, which provides for the right to respect for the private life, but also permits infringement of that right if in accordance with the law and, for example, to protect the public. It is an issue which has periodically arisen, particularly when convicted criminals have been released from prison. In 2007, police in Suffolk attracted the scorn of the Daily Mail when they refused to provide details and pictures of three “career criminals” who had completed their sentences and were about to be released into the community. In regards to the current disorder, the Prime Minister has made his view on the issue clear:
Picture by picture these criminals are being identified and arrested and we will not let any phony concerns about human rights get in the way of the publication of these pictures and the arrest of these individuals.
We set out some of the legal background to this issue in a previous post about the rights of burglars. As was explained in that post, pictures of individuals might well constitute private information, the release of which could breach confidence or their human rights, but the law also allows for the reasonable use of such information for the purposes of the detection and prevention of crime. In Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804, Laws J considered a police practice of providing photos to shopkeepers of individuals known to be causing trouble in the area so that they could recognise them. The traders were told not to display the photographs and show them only to staff. He said at page 810:
In my judgment, the use which the police may make of a photograph such as this is limited by their obligations to the photograph’s subject as follows. They may make reasonable use of it for the purpose of the prevention and detection of crime, the investigation of alleged offences and the apprehension of suspects or persons unlawfully at large. They may do so whether or not the photograph is of any person they seek to arrest or of a suspected accomplice or of anyone else. The key is that they must have these and only these purposes in mind and must, as I have said, make no more than reasonable use of the picture in seeking to accomplish them.
This is a nice and succinct summary of the legal position, and it is important to note that the decision pre-dates the Human Rights Act 1998, and was based upon an assessment of UK domestic law. It is therefore to be hoped that if any questions are asked about the human rights compatibility of publishing these photographs, the HRA is not unfairly maligned.
Given the scale of the unrest and the nature of the photographs, it would be difficult to argue that posting these pictures for the purpose of identification would infringe the human rights of the photo subjects. Publishing such images might be the only way of identifying many of the culprits.
In any event, the police are not alone in their efforts. Members of the public and community groups, who unlike the police are not bound by the provisions of the HRA, have also been endeavouring to identify rioters through the publication of photos on websites such as “Catch a Looter” an “Identify the London Rioters”. In this way, social media, which has been identified as a key tool used by the rioters to coordinate their activities, is also being used to help clean up the mess.
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Photographs that have as their focus an individual who can be identified may well breach the Data Protection Act 1998 and hence by extension the HRA. However, the DPA contains complex exemptions in respect of personal data used for journalistic or crime detection purposes.
In Durant v FSA 2003 the Court of Appeal clarified the use of CCTV images. An individual’s image appearing as part of a panoramic view of a crowd does not constitute personal data. If the CCTV operator zooms in so that an individual becomes the focus then the image may constitute personal data. Whether it is lawful to further process that data depends on the purposes for which the data are to be processed. If for the prevention or detection of crime then no breach of DPA should occur. If for any other reason then an infringement of that person’s privacy may have occurred.
There was a famous case in the last decade of a man in Essex brandishing a knife on the streets. The footage was televised and used to recruit for the Police Service (so it was ostensibly used for Crime Prevention purposes). The man was in fact mentally ill and not intent on a criminal enterprise. The ECtHR found his HRA Article 8 right to privacy had been infringed. The images were not of a man intent on committing criminal acts and so his images had been used falsely.
Hence publishing photos can infringe the DPA and HRA..
Other factors going to the question of “reasonableness” would include the seriousness of the offence(s) under investigation and the general circumstances in which they were committed. I would suspect that any arguments about unfair process would receive short shrift when all things are considered.
I would hope that right-thinking people who recognise any of these alleged offenders will report them to the Police. They really need to be brought to whatever justice the law permits in their individual cases.
Publishing photos does not infringe one’s human rights. If it did all the paparazzi would have been out of work years ago.
Next time, try to think of a sensible question to ask.