HRA provides ‘‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right”[4]. A public authority is “any person certain of whose functions are functions of a public nature”[5]. Raila Hussain works for Greater Entwhistle Police (GEP) as a Press officer. A police force may be seen as an organisation “whose functions are...of a public nature”[6] and therefore may be considered a public authority. However if it is seen that the that GEP is not a public authority, then when the dispute proceeds on to court or a tribunal, then that court or tribunal would be the public authority.
“A court or tribunal...must take into account any...decisions...of the ECtHR, ...opinions of the commission[7]...decisions of the commission[8]...or...decisions of the Committee of Ministers[9]...so far as...it is relevant to the proceedings...”[10] This shall be done throughout determining whether or not Jon can prevent Raila from publishing the CCTV footage.
All relevant rights in this situation (Art.8, Art.9, and Art.10) are qualified rights. The other type of right provided in the act is an absolute right. The difference between the two is that a qualified right can be interfered with by the state resulting in an individual being deprived either partially or completely of that right, under certain circumstances, subject to two conditions, “in accordance with the law and is necessary in a democratic society”[11] and with a legitimate aim. As with most qualified rights the criteria for which interference can be made is stated within the article. Absolute rights cannot be interfered with under any circumstances.
Jon wishes to prevent Raila from publishing the un-pixilated footage, by enforcing his Art8 right to privacy. This article provides each citizen with the right to privacy in relation to their private, family and home life and correspondents. Jon wish is to use this article to enforce his right to privacy in relation to his identity ie his face and number plate, and ultimately his personal activities and relations with Lola.
In relation to the interference being in accordance with the law the CJPOA 1994[12] states that “a local authority may take such…steps as they consider will, in relation to their area, promote the prevention of crime or the welfare of the victims of crime”[13] the courts also “noted that the publicising of information about the successful operation of the CCTV system reinforced the deterrent effect of its operation. The Council had the power to distribute the CCTV footage to the media for transmission by virtue of section 111 (1) of the (Local govn. Act) 1972 Act in the discharge of their functions under section 163 of the (CJPOA) 1994 Act”[14]however it states in, “Essex Police Policy Guidelines dated June 1995 concern the involvement of the police in the…operation of CCTV systems …..that care should always be taken to ensure that victims or other innocent parties featured...where possible, their consent obtained. Where possible, the identity of victims, police employees and suspects…should be masked.”[15].Within the case of peck, it was found that a failure to adequately mask the appellant was an infringement of his right underart8 and so the same principles should be available to Jon.
In regards to the interference having a legitimate aim the right of privacy is a qualified right and so these aims are set out as in the following justifiable circumstances; in the ‘‘interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others'’.[16]. The likely reasons for interference a public authority may wish to enforce are, for the prevention of disorder or crime, for the protection of health or morals and for the protection of the rights and freedoms of others.
It may be argued that the state may interfere with Jon’s right for the purposes of ‘‘public safety’’[17] as the driver of the stolen vehicle, and one passenger, died from the incident and the second passenger was seriously injured. The three boys are all members of the public and it is for their safety that the state may wish to interfere. As seen in Peck[18], the state was allowed to interfere as it was feared that Peck may cause harm to himself (ie commit suicide) However in relation to this event, the harm had already been done, it would be unreasonable to state that the interference is to protect these individuals, although it may also be a deterrent for further incidents of the same nature. If this footage is shown, individuals may be reluctant to attempt driving away from police officers. The footage shows that such an unfortunate result can occur even when the police are not driving dangerously. However, it would not be reasonable to show Jon’s face or number plate for this reason and therefore would be acting in-proportionately if this information was to be publicised.
The ‘‘prevention of disorder or crime’’[19] may also be a reason the public authority may wish to use to justify their interference with Jon’s Art 8 right. It may appear that by showing the footage, including Jon’s identity (face and number plate) would help members of the public to come forward, as Jon’s presence (as a celeb) may encourage witnesses to give any information and it may also act as a memory trigger. However, it seems that Raila is attempting to attract witnesses for the purpose of helping her defend the police force from potential accusation of dangerous driving rather than for the purpose of actually preventing physical crime. Although in the long term if it becomes apparent that witnesses are more willing to give evidence in relation to criminal incidents, this may eventually lead to a decrease in crime rate. Unfortunately this is a very vague view and also not the intention of Raila. Thus showing Jon’s identity would be unreasonable and in-proportionate to Raila’s aim.
The ‘‘protection of health’’[20] is similar to that of public safety, as outlined above the safety of the boys cannot be improved by the publication of Jon’s identity as the harm has already been done. Again the footage may help to publicise the need of safe, legal driving however the presence of Jon’s identity would not influence or support this message to the public, it would be in-proportionate to infringe Jon’s art8 right by using an un-pixilated footage for little if any benefit this would have on the effect of the health of the public. In relation to protection of morals, Raila argues that the release of Jon’s identity within the media could be a “memory trigger” for witnesses.”[21] with information on the events leading to the death of two young men. This may be considered a moral issue as witnesses may provide the information that brings justice to the families of the boys. However in the application of proportionality, pixilated footage is satisfactory as a memory trigger as seen in Peck[22]. As Jon’s vehicle is a Maserati the prestige of such a car should be considered a memory trigger in itself, any witnesses that noticed Jon’s number plate will have noticed the model of the car therefore a publication of footage that had been pixilated would have little if any effect as to whether or not a witness came forward. If it were publicised that Jon was with Lola and not his wife it would cause controversy in the media as well as conflict in his marriage which is also a moral issue in that it could potentially affect his career, in terms of how well he is respected in the public eye, and could affect his marriage. Proportionately the moral issues that affect Jon have greater weight than those of the families as the release of his identity may in fact not assist at all in triggering witness statements however the media footage of him and Lola will defiantly affect his private life and possibly his career.
In relation to ‘‘the rights and freedoms of others’’[23] it may be seen that the public has the right to thought, conscience and religion. The right to thought provides the public with right to make up their own mind as to if something is happening between Jon and Lola. Jon’s wife also has this right as she is a member of the public. She can make her own mind up as to whether there is a possibility that Jon and Lola are having an affair. People normally make their own view upon stories and articles published in the media and the act gives them the right to chose what they wish to believe. This leads to their right to conscience. They have the right to knowledge of what is going on. Etc. In relation to Jon’s right of privacy, his identity is not integral in providing the public with their rights, the purpose of the media publication of the CCTV footage is to show the incident and not to advertise Jon’s whereabouts or his affiliations. It was asked in the case of Tomlinson[24] “whether B (the appellant) has a reasonable expectation of privacy”[25], On the basis that a balance must be struck between the rights of the public and the rights of Jon, a proportionate balance/ reasonable expectation of privacy”[26], would be that a pixilated version of the CCTV footage would be shown and so Jon’s rights are not infringed and although the public are not provided with all information they are provided with the information relevant to the legitimate aim of the media showing and so they can make conscious thoughts based upon the information they are given.
The margin of appreciation must be considered within any possible interference to a right, in application this means that it need also be necessary ‘’in a democratic society’’ however ‘’necessary does not mean absolutely necessary... there must be pressing social need for interference’’, this is best illustrated in the case of Handyside[27] in which his right to freedom of expression in publishing 'The Little Red Schoolbook' was acknowledged/ appreciated however the UK government had to appreciate the high rate of teenage pregnancies at the time of publication and so restricted this right. In relation to the possibility of the interference of Jon’s right there is no ‘’pressing social need’’ that leads to his identity being disclosed within the footage, in reflection of the possible circumstances the public authorities may aim to use in order to restrict Jon’s rights, as discussed above, margin of appreciation only further supports what previously stated, that as there is no pressing social need in society to include Jon’s identity in the footage and it would be disproportionate to do so.
On analysing all the applicable rights to Jon and public as well as referring to common law standing there is a strong case that can be made against the publication of Jon’s identity in the media showing of the CCTV footage. Although on first look there appears to be some circumstances that Raila may be able to justify an infringement of his Art 8 right when analysed toughly the conditions that must be met in order to use these circumstances cannot be met and the consideration of proportionality supported by the case of Peck[28] bring to the conclusion that If Raila does publish the CCTV footage in the media then appropriate pixilation of Jon’s face and number plate will need to made in order to hide is identity and protect his right to privacy.
Bibliography
Constitutional and Administrative Law Course Manual, University of Huddersfield
‘Extracts from Human Rights Act 1998 c.42’ handout (provided by University of Huddersfield)
Books:
Carrol, A. Constitutional and administrative law (Harlow2009)
Cases:
H v Tomlinson (2008) Court of Appeal (Civil Division)
Handyside v UK [1976] 1 EHRR 737
Peck v United Kingdom (2003) European Court of Human Rights
Legislation:
Human Rights Act 1998
European Convention of Human Rights 1950
Criminal Justice and Public Order Act 1994
Websites:
[1] Article 8 Human Rights Act 1998
[2] Article10 Human Rights Act 1998
[3] Article9 Human Rights Act 1998
[4] Section 6 (1) Human Rights Act 1998
[5] Section 6 (3) (b) Human Rights Act 1998
[6] Section 6 (3) (b) Human Rights Act 1998
[7] Under Article 31 of the Convention
[8] Under Article 26 or 17(2) of the Convention
[9] Under Article 46 of the Convention
[10] Section 2 Human Rights Act 1998
[11] Article 8(2) of European Convention of Human Rights
[12] Criminal Justice and Public Order Act 1994
[13] section 163 of Criminal Justice and Public Order Act 1994
[14] paragraph 66 of Peck v United Kingdom (2003) European Court of Human Rights
[15] Paragraph 37 of Peck v United Kingdom (2003) European Court of Human Rights
[16]Article 8(2) Human Rights Act 1998
[17]Article 8 (2) Human Rights Act 1998
[18] Peck v United Kingdom (2003) European Court of Human Rights
[19] Article8 (2) Human Rights Act 1998
[20] Article 8 (2) Human Rights Act 1998
[21] Coursework Scenario: Constitutional and Administrative Law Course Manual (Page 9)
[22] Peck v United Kingdom (2003) European Court of Human Rights
[23] Article 8 (2) Human Rights Act 1998
[24] H v Tomlinson (2008) Court of Appeal (Civil Division)
[25] Paragraph 21 of H v Tomlinson (2008)
[26] Paragraph 21 of H v Tomlinson (2008)
[27] Handyside v UK [1976] 1 EHRR 737
[28] Peck v United Kingdom (2003) European Court of Human Rights
by
littlerock (student)
