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PSNIOn appeal from: [2013] NIQB 44

The Supreme Court will decide whether ECHR, art 8 is breached by the publication of CCTV images of a child or young person suspected of involvement in criminal activities, or by the police’s retention of these images.

Background

During the summer of 2009 there was significant public disorder of a sectarian nature in Londonderry. Riot police made extensive use of CCTV recordings to detect those involved. However, the PSNI were unable to internally identify all those who had been recorded on CCTV and decided that it was necessary to appeal to the public for assistance in identifying the suspects by publishing the CCTV images in local newspapers. “Operation Exposure” was launched in March 2010.

From April to July 2010 there was a repeat of sectarian disorder in the same area, escalating in frequency and severity from the previous year. Around 75 young people were involved. Police, unable to identify around 50 young people recorded on CCTV, took the decision to release their images to local media. An image of the applicant, a child aged 13 at the time of the disorder, was published in two newspapers. The applicant brought a judicial review on the grounds that identification of children and young persons involved in criminal activity under Operation Exposure was part of a “name and shame” policy which breached his right to privacy under ECHR, art 8.

High Court Decision

Morgan LCJ delivered judgment for the High Court in Northern Ireland on 21 March 2013. He noted that the criminal justice system recognises the need to treat children differently and protect their identity in criminal proceedings [1]. Whilst acknowledging that a fact-specific assessment is required, Morgan LCJ held that the police’s retention of photographs taken in public of persons apparently participating in serious public disorder, for the purpose of ensuring they could be distributed internally to identify perpetrators, did not engage art 8 [2].

However, Morgan LCJ held that the publication of photographs suggesting that the police wished to identify a child in connection with serious offences was an intrusion into his private life, which required justification [3]. In assessing proportionality, Morgan LCJ acknowledged the adverse risks to the child where suspicion of offending is disclosed, prior to any finding of guilt, noting that there was a risk of children becoming stigmatised within their communities, which may also impair rehabilitation [4]. However, Morgan LCJ held that the balance came down firmly in favour of publication of the images, giving weight to the following factors: the violence was persistent and there was a pressing need to end it by identifying those responsible; arrest at the scene was not possible, so the use of images was necessary; the police had attempted all reasonably practicable methods of identifying those involved prior to publication, and safeguards in the PSNI guidance ensured a rigorous approach to publication. Morgan LCJ also considered that a child’s participation in groups engaged in public disorder, particularly with a sectarian overtone, corrodes the child’s sense of respect for the rights and freedoms of others. He found it to be in the child’s interest for his participation in such groups to be identified at an early stage, so as to be provided with support to prevent reoffending, and held that publication was likely to lead to the identification of a high proportion of those involved and referral to diversionary services [5].

Morgan LCJ did not accept the characterisation of Operation Exposure as a “name and shame” policy, and considered that in the circumstances, publication of the images was necessary for the administration of justice. The process was designed to protect the public by preventing reoffending and diverting children from sectarian public disorder, and the risk of stigmatisation did not outweigh this [6].

Coghlin LJ agreed with Morgan LCJ’s judgment. Higgins LJ found that the publication of the images did not engage art 8, and found no distinction between an adult and a child with respect to private life considerations [7].

Appeal to the Supreme Court

The Supreme Court will consider two issues. Firstly, whether the publication of CCTV images to identify a child or young person suspected of involvement in offences of riotous behaviour and attempted criminal damage can ever be a necessary and proportionate interference with art 8 rights. Secondly, whether the police’s retention of CCTV images internally breached the applicant’s art 8 rights, either before he was found guilty of criminal behaviour, or after.

This is one of several cases before the Supreme Court this term raising issues of privacy and the retention of information by the police (see also R (Catt) and R (T) v Commissioner of Police of the Metropolis, and Gaughran v The Chief Constable of the Police Service of Northern Ireland), and it will be interesting to see how the Court approaches art 8 in a variety of policing contexts.

Ayesha commenced traineeship at Matrix in October 2014.

 

 

[1] [2013] NIQB 44, paras 23, 24

[2] Ibid, para 28

[3] Ibid, para 30

[4] Ibid, paras 30, 36

[5] Ibid, para 37

[6] Ibid, para 38

[7] Ibid, para 64