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In the matter of an application by JR38 for Judicial Review (Northern Ireland)

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Court/Judicial body:
UK Supreme Court

1 July 2015

CRC Provisions:
Article 3: Best interests of the child Article 40: Administration of juvenile justice

Other international provisions:
European Convention on Human Rights and Fundamental Freedoms, Article 8: Right to respect for private and family life Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), Rule 8: Protection of privacy

Domestic provisions:
The Criminal Justice (Children) (Northern Ireland) Order 1998
Restrictions on reporting proceedings Police (Northern Ireland) Act 2000
Data Protection Act 1998
Justice (Northern Ireland) Act 2002, Section 53

Case summary

A child, 14 at the time, was photographed allegedly participating in riots. The police published the photographs in the local newspaper. The police argued that the images were published as a last resort in an attempt to identify the boy. The boy’s father claimed that the publication of the photographs was part of a “name and shame” campaign by the police and that the publication violated his son’s right to privacy, as protected by Article 8 of the European Convention on Human Rights (ECHR).

Issue and resolution:
Right to privacy. While the five judges offered different reasons across three opinions, they unanimously agreed that the publication of the photographs did not violate the boy’s privacy, as protected by the ECHR.

Court reasoning:
Primarily, the judges disagreed on whether the boy needed to show a “reasonable expectation of privacy” to show a breach of Article 8. The boy’s age at the time the picture was taken is a factor as to both: whether there was a reasonable expectation of privacy; and whether the boy’s privacy was breached. In any case, regardless of whether Article 8 of the ECHR was engaged, the judges agreed that any potential breach of Article 8 was justified under the circumstances.

Excerpt citing CRC and other relevant human rights
49.    Moreover, as is common case, the nature and content of a child’s right under Article 8 must be informed by relevant international treaty provisions. Article 3(1) of UNCRC provides that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. The United Nations Committee on the Rights of Children, in its comment on the significance of this provision in May 2013, said this in para 1 of its report:

“Article 3, paragraph 1 of the Convention on the Rights of the Child gives the child the right to have his or her best interests assessed and taken into account as a primary consideration in all actions or decisions that concern him or her, both in the public and private sphere. Moreover, it expresses one of the fundamental values of the Convention.  The  Committee  on  the  Rights  of  the  Child  (the Committee) has identified Article 3, paragraph 1, as one of the four general  principles  of  the  Convention  for  interpreting  and implementing all the rights of the child, and applies it is a dynamic concept that requires an assessment appropriate to the specific context.”

And this at para 4:

“1. The concept of the child’s best interests is aimed at ensuring both the full and effective enjoyment of all the rights recognized in the Convention and the holistic development of the child.The Committee has already pointed out that ‘an adult’s judgment of a child’s best interests cannot override the obligation to respect all the child’s rights under the Convention’.It recalls that there is no hierarchy of rights in the Convention; all the rights provided for therein are in the ‘child’s best interests’ and no right could be compromised by a negative interpretation of the child’s best interests.”

And, finally, this at para 5:

“The full application of the concept of the child’s best interests requires the development of a rights-based approach, engaging all actors, to secure the holistic physical, psychological, moral and spiritual integrity of the child and promote his or her human dignity.”

50. The notion that a child’s best interests can be properly catered for by supposing that when he or she engages in criminal activity in a public place, because he or she cannot therefore have a reasonable expectation of privacy, publication of his or her photograph, while engaged in that activity, does not come within the ambit of Article 8 is, at best, incongruous, and is distinctly out of step with the philosophy which underpins Article 3(1) of UNCRC. That philosophy, so far as it relates to criminal  proceedings  against  children,  is  prominently  proclaimed  in   Article 40(2)(vii) of the Convention which requires states who are party to the Convention to ensure that the child’s privacy is fully respected at all stages of the proceedings.

51. The Beijing Rules accord similar importance to the need to insulate children from the disclosure of their identity when they are involved in criminal proceedings. They were adopted by the General Assembly resolution 40/33 of 20 November 1985. Rule 8 provides:

“8.1 The juvenile’s right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling.

8.2 In principle, no information that may lead to the identification of a juvenile offender shall be published.”

52. The commentary on this rule is to the following effect:

“Rule 8 stresses the importance of the protection of the juvenile’s right to privacy. Young persons are particularly susceptible to stigmatization. Criminological research into labelling processes has provided evidence of the detrimental effects (of different kinds) resulting from the permanent identification of young persons as ‘delinquent’ or ‘criminal’. Rule 8 stresses the importance of protecting the juvenile from the adverse effects that may result from the publication in the mass media of information about the case (for example the names of young offenders, alleged or convicted). The interest of the individual should be protected and upheld, at least in principle.”

53. Taken as indicators as to how Article 8 should be interpreted in this case, these provisions are reasonably unmistakable. A child’s identity should be protected even (or, perhaps, especially) when he or she has been subject to criminal proceedings. The ambit of Article 8 of ECHR must be seen as including within its embrace the need to protect a child from exposure as a criminal. That it should apply to the publication of a photograph of a child while, apparently, engaged in criminal activity, must follow inexorably. I consider, therefore, that there has been an interference with the appellant’s Article 8 right.

69. … In light of its acknowledged responsibilities to children the police service devised Policy Directive 13/06 end PSNI Policing with Children and Young People. It aims to identify children and young people at risk of becoming involved in offending and works with partner agencies in the provision of support and intervention. It contains an express commitment to adhere to ECHR rights as well as the international standards in the UNCRC and the Beijing Rules. …

Follow up:
This decision is very recent, so there has not been much follow-up. The boy’s lawyers are seeking to challenge the decision in the European Court of Human Rights.

Press coverage of the decision:

CRIN comments:
CRIN believes this decision is not consistent with the CRC. Children have the right to privacy – both generally ( Article 16) and specifically at all stages of proceedings when in conflict with the law ( Article 40(2)(b)(vii)). The publication of images of a child in conflict with the law violates the child’s right to privacy and is not in the best interests of the child.

In the matter of an application by JR38 for Judicial Review [2015] UKSC 42

Link to Full Judgment:

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.