Re an application by JR38 for Judicial Review (Northern Ireland)

 
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[2015] UKSC 42

THE SUPREME COURT

Trinity Term

On appeal from: [2013] NIQB 44

before

Lord Kerr

Lord Clarke

Lord Wilson

Lord Toulson

Lord Hodge

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

Appellant

Mary Higgins QC Ronan Lavery QC

(Instructed by MSM Law)

Respondent

Tony McGleenan QC Paul McLaughlin

(Instructed by Crown Solicitors Office)

Heard on 6 November 2014

Lord Kerr

(with whom Lord Wilson agrees)

Introduction
1

It is a common assumption that 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 naiveté. Giving the appearance of being older than their years should not be confused with possession of mature judgment. 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.

2

The young man who is the appellant in this case is now 18 years old. He was born on 16 July 1996. On 23 and 26 July 2010 two newspapers, the Derry Journal and the Derry News respectively, published an image of him. He was at that time barely 14 years old. These photographs had been published by the newspapers at the request of the police. The publication of the appellant's photographs and those of others who had been involved in public disorder in Londonderry was part of a police campaign known as "Operation Exposure" which was designed to counteract sectarian rioting at what are called "interface areas" in parts of Derry. Interface areas are situated at the boundaries of parts of the city which are predominantly inhabited by one or other of the two main communities.

3

The appellant argues that publication of photographs of him constituted a violation of his article 8 rights. The Divisional Court in Northern Ireland (Morgan LCJ, Higgins and Coghlin LLJ) dismissed his application for judicial review on 21 March 2013.

Factual background
4

Mr McGleenan QC, counsel for the Chief Constable, has described the factual background as "convoluted" and that is certainly not an exaggeration. The case made on the appellant's behalf in the judicial review proceedings, by which he sought to challenge the legality of the police operation, was made largely through affidavits from his father. On 14 July 2010 the Derry Journal had published images of closed circuit television (CCTV) pictures which had been taken during serious rioting in Derry in July 2010. In the first of his affidavits, the appellant's father claimed that these included images of his son. He also claimed that leaflets published and distributed by police on 16 August 2010 which again contained CCTV images of young people involved in rioting identified the appellant.

5

When the application for leave to apply for judicial review was first heard, two particular images from the 14 July issue of the Derry Journal and the leaflets were stated by his counsel to be those of the appellant. It was later established that, not only were these not images of the appellant, he did not appear at all in that particular issue of the newspaper or in the leaflets.

6

The appellant had been interviewed by police on 1 July 2010. He was questioned about his involvement in rioting on 24 May 2010 and 8 June 2010. He was shown CCTV footage of both incidents and he claimed to be able to identify himself from the footage of both incidents. He was also shown a booklet of some 115 photographs of persons involved in rioting on various dates in May and June 2010. These included the images contained in the leaflets which were later published by police on 16 August 2010. The appellant did not identify himself in any of these images.

7

In light of the statement by counsel for the appellant at the leave hearing that the appellant's image did appear in one of the photographs contained in the leaflet, he was interviewed again in relation to the incident portrayed in that photograph. During this second interview the appellant and his father were shown CCTV footage. As a result of this viewing, both concluded that, contrary to what had been said on his behalf at the application for leave to apply for judicial review, the appellant was not depicted in the image in the leaflet which had formerly been chosen as having identified him. So far as the image in the Derry Journal of 14 July 2010 was concerned, it was established that this was of someone else entirely. In sum, in neither of the particular images which counsel had told the court were of the appellant, was he in fact portrayed.

8

Following the second interview, a further affidavit was prepared for the appellant's father. It is claimed that this affidavit has been filed in the proceedings. Apparently, it has never been sworn, so it seems unlikely that it has actually been filed. In any event, in this affidavit, it was claimed that the appellant's image appeared in issues of the Derry Journal and the Derry News published on 23 and 26 July 2010 respectively. Both issues contained the same photograph. The appellant's father stated that the image came from video footage of an incident which he believed had occurred on 6 June 2010. It is now accepted by the respondent that the appellant is the figure shown in the photograph reproduced in these two issues of the newspapers but the appellant's image was captured on 5 June rather than the sixth as the appellant's father believed.

9

The appellant's father also claimed in this second affidavit that, during the interview on 1 July 2010, his son had identified himself as the child throwing stones in the photograph that was published in the Derry Journal and the Derry News on 23 and 26 July 2010. This is disputed by the respondent. In affidavits filed on his behalf, the interviewing officer has said that, although CCTV footage of events on 5 June had not been shown during the interview on 1 July 2010, the appellant and his father were shown the image later reproduced in the newspapers on 23 and 26 July but the appellant had not been identified at that stage. Indeed, formal identification of the appellant was not made as the person shown in the photograph published on those dates until 11 May 2011. By that time, the six month limitation period that applies to any charge that might have been preferred against the appellant had elapsed. Accordingly, no action was taken against him.

10

The appellant was involved in offences other than those relating to the publication of his photograph. On 6 August 2009 he was arrested on a charge of riotous behaviour which had occurred on 13 July 2009 at Butcher's Gate, Derry. This was dealt with by a restorative caution on 29 June 2011. He was also charged with two separate offences of riotous behaviour alleged to have occurred on 6 June and 8 June 2010 and with possession of an offensive weapon and attempted criminal damage on the latter date. A youth conference was directed by Public Prosecution Service on 16 December 2010. The appellant failed to engage with this and on 31 May 2011 it was decided that he should be prosecuted for these offences. The riotous behaviour charges were dealt with by a youth conference ordered by the court on 23 October 2012. The possession of offensive weapon and attempted criminal damage charges were not proceeded with.

Operation Exposure
11

Chief Inspector Chris Yates is the area commander of Police Service of Northern Ireland (PSNI) for the Foyle District of Londonderry. He has described how interface violence between the two communities in this district was a regular occurrence during periods of heightened tension such as when parades were taking place. The number of incidents of violence decreased significantly during the period from 2006 to early 2009. But in the early part of 2009 it was observed that the number of such incidents at one particular location, the Bishop Street/Fountain estate interface, had increased substantially. This was of particular concern to the police because there is a residential home for the elderly and vulnerable in the vicinity. Inter-community violence in the area again became a regular occurrence, flaring up significantly during two parades in July and August.

12

The level of violence increased yet again during May and June 2010. It was more serious and prolonged than any experienced by Mr Yates since he had begun service in the Foyle district. Intelligence received by police suggested that vigilante groups were being formed on one side and dissident republicans were encouraging violence on the other side. Community representatives on the nationalist side informed police that they had lost influence over the youths in their area; indeed they had been confronted on occasions by dissident republican elements. Police officers on the ground reported on the absence of community representatives from either side during the disturbances.

13

The ongoing violence drained police resources and, in the estimation of Mr Yates, threatened to undermine community confidence in PSNI's response. Indeed, police were criticised for having failed to deal with the continuing disorder. The issue was raised at a meeting of the district police partnership on 16 June 2010. This is composed of, among others, local councillors and community representatives. The ongoing violence was discussed at the meeting and general concern was expressed.

14

The matter was discussed again on 1 July 2010 when Chief Inspector...

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