AS1's (A Minor Acting by Her Mother and Next Friend) Application
| Jurisdiction | Northern Ireland |
| Judge | Keegan J |
| Judgment Date | 16 May 2018 |
| Neutral Citation | [2018] NIQB 46 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 16 May 2018 |
1
Neutral Citation No: [2018] NIQB 46
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: KEE10590
Delivered: 16/05/2018
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY AS1 (A MINOR ACTING BY HER
MOTHER AND NEXT FRIEND) FOR JUDICIAL REVIEW
AND IN THE MATTER OF ACTIONS OF THE POLICE SERVICE OF
NORTHERN IRELAND IN RELATING TO VIDEO TAPING THE APPLICANT
IN HER HOME ON 5 AUGUST 2016
________
KEEGAN J
I have anonymised this application as it involves a minor. Nothing should be
published which would identify the minor or her family on the basis that her
interests need to be protected.
Introduction
[1] This is an application for judicial review of a decision to video tape the
applicant in her home during an authorised search. The application is dated
14 December 2016. The applicant is a 9 year old child (“the child” also referred to as
(“Child 1”). The case is brought by her mother as next friend. The applicant’s elder
brother was also in the home at the relevant time and he is referred to as “Child 2” in
this judgment. The respondent is the Police Service of Northern Ireland (“PSNI”).
Leave was granted by McCloskey J on 12 December 2017 to apply for various forms
of declaratory relief, mandamus and damages. The relief sought is pleaded as
follows:
“(a) A declaration that the policy or practice whereby
the respondent utilises video tape during entry
and search of a home is unlawful, ultra vires and
of no force or effect.
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(b) A declaration that the policy or practice whereby
the respondent retains footage of the entry and
search of a home is unlawful, ultra vires and of no
force or effect.
(c) A declaration that the use of videotape during the
entry and search of a home and the retention of
such footage thereafter requires explicit legislative
authority.
(d) A declaration that the decision of the respondent
to utilise videotape within the applicant’s home on
the 31 August 2016 was unlawful.
(e) A declaration that the decision of the respondent
to retain the videotape footage obtained during the
entry and search of the applicant’s home on
3 August 2016 was unlawful.
(f) An order or mandamus requiring that the
respondent dispose of the videotape footage
obtained during the entry search of the applicant’s
home on 3 August 2016.
(g) Damages.”
[2] The grant of leave was restricted to certain grounds set out in an amended
Order 53 Statement dated 2 March 2018 namely:
(a) The policy or practice of the respondent to utilise video tape during entry and
search of the home is contrary to section 6 of the Human Rights Act 1998 read
together with Article 8 ECHR as there is no legal basis for such interference
with the right to respect for private life.
(c) The decision of the respondent to utilise video tape during the entry and
search of the applicant’s home on 3 August 2016 was contrary to section 6 of
the Human Rights Act 1998 read together with Article 8 of the ECHR as there
was no legal basis for such interference with the applicant’s right to respect
for private life.
(f) The policy or practice of the respondent to utilise video tape during entry in a
search of a home is contrary to directly effective European law – namely
Article 1(1) of Directive 95/46/EC read together with Article 78(2) and 24 of
the Charter of Fundamental Rights of the European Union (CFR) as there is
no legal basis for such interference.
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AS1's Application (A minor acting by her mother and next friends) No. 2
...I decided that the actions of the police were lawful pursuant to the domestic and European law in AS1’s Application for Judicial Review [2018] NIQB 46. That decision was appealed by notice of 12 June 2018. I am informed that when the case was first opened before the Court of Appeal counsel ......