Does the publication of photographs of a child taken during a riot fall within the scope of Article 8 ECHR?
It depends, says a Supreme Court majority, specifically on whether there was a reasonable expectation of privacy. Either way, the Court in J38 agreed that whether or not the 14 year-old Appellant’s right to respect for private life was in play, the publication of police photographs of him was justified in the circumstances.
J38’s journey to the Supreme Court began five years ago, on the streets of Derry. He was involved in what the Police Service of Northern Ireland (PSNI) describe as ‘interface violence’ – rioting focused around the lines that divide the city’s Protestant and Catholic communities. Such altercations were rife in the Foyle district between 2006 and 2010, with police intelligence suggesting that local youths were being spurred on by vigilante groups on one side and by dissident republicans on the other.
The PSNI sought to identify those responsible by means of ‘Operation Exposure’, whose aim was to divert youths away from interface violence, where possible by means other than prosecution. Publication of CCTV stills captured during the riots was the final stage in an incremental approach that began with traditional detective tactics followed by engagement with community leaders – steps that had proved unsuccessful in identifying the culprits.
JR38’s photograph was one of a number that ended up being published in the Derry Journal. His father issued a judicial review application on his behalf, citing his son’s right to respect for private life protected under Article 8.
The first instance decision
A majority in the Divisional Court (Morgan LCJ and Coghlin LLJ) held that the boy’s Article 8 rights were at least engaged: the image was of a child, and it was published in circumstances in which it was at least possible he was involved in serious political disturbances. This risked stigmatising him and impairing his rehabilitation and reputation.
The interference was, however, justified on the basis that it was necessary for the administration of justice and not excessive in the circumstances. Accordingly, the case fell within the scope of Article 8 but there had been no violation.
Higgins LJ considered that Article 8 was not engaged. For him, the answer to whether a private life right existed in a public setting was to be found by considering whether the person had a reasonable expectation of privacy in the public circumstances in which he placed or found himself. Here, JR38 had placed himself in public view among a crowd of other persons engaged, allegedly, in public disorder. He took the risk of his presence and any activities being observed and noted down or otherwise recorded:
“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.”
The Supreme Court
The Supreme Court unanimously concluded that if there was an interference with Article 8 it was justified. Publication furthered the purposes of the prevention and detection of crime and helped divert young people from criminal activity. The ‘painstaking’ approach of the police as part of Operation Exposure showed that publication of photographs of alleged rioters was a measure of last resort. It struck a fair balance between the interests of the individual and the community.
The Court was, however, divided over the prior question of whether there had been an interference. In particular, was a reasonable expectation of privacy required in order to bring the Claimant’s case within the scope of Article 8?
Lord Kerr (with whom Lord Wilson agreed)
Northern Ireland’s former Lord Chief Justice, Lord Kerr, considered that references in domestic and European case law to the ‘touchstone’ of a reasonable expectation of privacy should not be taken to mean that such an expectation is required in order to engage Article 8. In Campbell v MGN Ltd  UKHL 22, Lord Nicholls warned against using a touchstone test that brought into account considerations more properly considered at the later stage of determining the proportionality or otherwise of a measure. For Lord Nicholls, “[e]ssentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.”
In the later Supreme Court case of Kinloch v HM Advocate  UKSC 62, Lord Hope adopted a similar approach. He acknowledged that there was a “zone of interaction” with others that, even in a public context, fell within the scope of private life. But Lord Hope considered that 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”, Article 8 is not engaged.
According to Lord Kerr, a “nuanced approach” was required. While the presence or otherwise of a reasonable expectation of privacy might carry considerable weight and even be considered a ‘rule of thumb’, it could not be determinative. Also relevant were factors such as the applicant’s age, the degree of consent given, the risk of stigmatisation and the use to which the published material was put.
For Lord Kerr, the emphasis under Article 8 had to be on the publication of the photograph rather than the activity in which JR38 was engaged. He urged caution in applying a ‘reasonable expectation of privacy’ test, particularly in the cases of children, where prominence must be given to their best interests. He referred to both national and international standards on the treatment of young offenders and, specifically, the protection of their identities. The taking and use of a photograph of an individual would, on the face of it, lie within the ambit of Article 8 – a conclusion reached in unqualified terms by the Strasbourg case of Sciacca v Italy (2006) 43 EHRR 20.
Lord Kerr disagreed with Lord Justice Laws conclusion in R (Wood) v Comr of Police for the Metropolis  EWCA Civ 414,  1 WLR 123 that absent a reasonable expectation of privacy, “there is no relevant interference with personal autonomy.” He added that “it is extremely important not to conflate the question of justification with the issue of whether Article 8 is engaged.” He and Lord Wilson took the view that Article 8 was engaged.
Lord Toulson (with whom Lord Hodge agreed)
Lords Toulson, Hodge and Clarke took a different view. Lord Toulson emphasised the purpose of Article 8 and “the need to examine the particular circumstances of the case in order to decide whether, consonant with that purpose, the applicant had a legitimate expectation of protection […].” He described Lord Justice Laws’ analysis in Wood as “impressive” and conceded that he could not improve upon it, starting as it did with the central values of Article 8 – the “physical and psychological integrity” of a person as well as his or her “physical and social identity.”
The touchstone of reasonable expectation of privacy was an important check in terms of ensuring that the protean right protected by Article 8 did not lead to claims that were “unreal or unreasonable”. Lord Toulson considered  that the European Court had not gone so far as to suggest that the taking or use of a photograph is in all circumstances an interference with private life.
The fact that the Appellant was a child was not, for Lord Toulson, a reason to depart from the reasonable expectation of privacy test, but was a potentially relevant factor in its application. Sir Anthony Clarke MR (now Lord Clarke) had shown in Murray v Express Newspapers plc  3 WLR 1360 that it was possible to apply the objective test of reasonable justification in a case involving a child.
Lord Toulson considered that determining whether there existed a reasonable expectation of privacy required a focus on both the circumstances and on the underlying value or collection of values which Article 8 is designed to protect . He disagreed with Lord Kerr  that the test of reasonable expectation of privacy (or legitimate expectation of protection) excludes from consideration the factors Lord Kerr described as part of the analysis; the test is to be applied broadly, taking account of all the circumstances of the case. Those factors had “obvious relevance to the issue of justification” but were also relevant to considering the question of interference:
“When the authorities speak of a protected zone of interaction between a person and others, they are not referring to interaction in the form of public riot. That is not the kind of activity which article 8 seeks to protect.” 
Lord Clarke (with whom Lord Hodge agreed)
Lord Clarke added a short judgment [104-115]. Like Lord Toulson, he considered that Article 8 was not engaged on the facts, although he added that, due to the present (confusing) state of the Strasbourg jurisprudence, he would not go as far as Laws LJ had in suggesting that Article 8 could never apply in circumstances where there was no reasonable expectation of privacy.
Lord Clarke condensed this 115-paragraph judgment into five words by repeating Lord Steyn’s famous phrase: “in law, context is everything.” On that, the Supreme Court seemed to agree. Context was relevant not only when considering justification, but also in determining the prior question of engagement.
It is difficult to pin-point any substantive difference between the approaches of the minority and majority in this case. Whether the contextual analysis is part and parcel of deciding whether there is a reasonable expectation of privacy (Lord Toulson), or whether it constitutes a necessary separate exercise (Lord Kerr), the five Justices appeared to agree that it ought to take place before the focus shifted to the question of justification. For Lords Toulson, Clarke and Hodge, an examination of the factual context fed into and was capable of forming part of the analysis of whether there had been a reasonable expectation of privacy. For Lords Kerr and Wilson, a slavish application of the reasonable expectation test would effectively oust a court’s ability to examine the facts and circumstances. If that is correct, it would mean that, on a practical level, the individual would not be able to clear the interference hurdle in order to reach the stage at which the facts and circumstances came into play, i.e. justification.
This is one of many areas, particularly in the Article 8 context, in which it is difficult to discern a clear line from Strasbourg. Viewed in the round, however, the case law does not say that a narrow, objective test of whether there is a reasonable expectation of privacy effectively siphons the context out of the analysis of whether there has been an interference. Indeed, it is difficult to see how one can decide the objective question of reasonable expectation of privacy in a vacuum. Lord Steyn’s mantra applies, and the approach of Lord Toulson, Lord Hodge and Lord Clarke seems the more robust.
It would be remiss of me not to mention Lord Kerr’s opening paragraph in this case. Permeating the minority judgment is a focus on the rights of the child, and the need to protect him from the consequences of his actions. Parents might wish to memorise the following Supreme Court passage ready for deployment the next time their 21st century offspring are playing up:
“It is common assumption that the young people of succeeding generations become increasingly sophisticated and worldly-wise. Certainly, the young people of today have access to a range of external experiences, particularly through social media, that would have been inconceivable even 20 years ago. But the street urchins of Dickens’ day were, arguably, just as knowing vis-à-vis their elders, as are today’s youth. The seeming sophistication or worldliness of today’s children does not mean that they are not as inherently immature as have been children throughout the ages. Apparent social sophistication is not to be equated with a lack of naivité. Giving the appearance of being older than their years should not be confused with possession of mature judgement. Protection of our children from the consequences of their immaturity and the preservation of their innocence are just as vital as they have ever been.”