Re JR 38's Application (In the matter of an application by JR 38 for Judicial Review)
| Jurisdiction | Northern Ireland |
| Judge | Morgan LCJ |
| Judgment Date | 21 March 2013 |
| Neutral Citation | [2013] NIQB 44 |
| Date | 21 March 2013 |
| Court | Queen's Bench Division (Northern Ireland) |
| Year | 2013 |
1
Neutral Citation No. [2013] NIQB 44
Ref:
MOR8819
Judgment: approved by the Court for handing down
Delivered:
21/03/2013
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
_______
IN THE MATTER OF AN APPLICATION BY JR 38 FOR JUDICIAL REVIEW
________
Before: MORGAN LCJ, HIGGINS LJ AND COGHLIN LJ
________
MORGAN LCJ
[1] This is an application for judicial review of a decision by the PSNI to release
to local newspapers for publication images of persons suspected of being involved in
sectarian rioting and violent offending at an interface area at Fountain Street/Bishop
Street Londonderry in May, June and July 2010. The applicant, a child who was born
in July 1996, claims one of the images released by the PSNI and published in two
local newspapers is an image of him. He seeks judicial review on the single ground
that “the use of the operation known as Operation Exposure to identify and
highlight children and young persons involved in criminal activity as part of a name
and shame policy without due process is in breach of the applicant’s rights pursuant
to Article 8 of the European Convention on Human Rights”. Ms Higgins QC and Mr
Ronan Lavery QC appeared for the applicant and Mr McGleenan QC for the
respondent. We are grateful to counsel for their helpful written and oral
submissions.
Background
[2] During the summer of 2009 there was serious public disorder with a sectarian
background at the Fountain Street/Bishop Street interface. The violence included the
throwing of petrol bombs. There were injuries to police officers and particular
impacts on elderly residents of Alexander House nursing home. The area had until
then been patrolled with the assistance of community volunteers but they withdrew
in May 2009 because the volunteers had been threatened and the threats had become
more sinister.
2
[3] The policing of the disorder posed considerable problems. The topography of
the area made on the spot arrests very difficult. As soon as police officers attempted
to make arrests the young people involved in the rioting from the nationalist side
ran down a grassy slope into the Bogside. Pursuing young people into the Bogside to
effect arrests carried a high risk of instigating more disorder and adversely affecting
community relations.
[4] In order to detect those involved in the rioting police made extensive use of
their access to CCTV. Police officers also generated evidence through handheld
video recording equipment, vehicle roof mounted video recording equipment and
video recording equipment on the Air Support Unit’s helicopters. Unidentified
images of suspects were shared with colleagues and circulated on the electronic
briefing pages on the police computer system. Where the images remained
unidentified internally the associated crimes largely remained unsolved.
[5] Inspector Burrows had extensive experience in policing large public order
incidents and demonstrations. He transferred to the PSNI from the Metropolitan
Police Service in July 2005 and was thereafter involved in the management of
parades and demonstrations in the Londonderry area. He concluded that it was
necessary to involve the community in the identification of those who had not been
identified internally in order to satisfy the police service's duty under section 32 of
the Police (Northern Ireland) Act 2000 to investigate crime and to take measures to
bring offenders to justice. In August 2009 he reached agreement with the three main
local newspapers to publish CCTV unidentified images of suspects and to appeal to
the public for assistance in identifying the suspects.
[6] Following concerns raised by some members of the Derry District Policing
Partnership he agreed with the District Commander to postpone the publication so
that it could be reviewed in conjunction with the Human Rights Legal Adviser and
the Inspector from the Community Safety Department. He subsequently drafted an
Operation Exposure guidance document which was approved by the Human Rights
Legal Adviser, the District Commander and the Assistant Chief Constable
responsible for the area.
[7] The guidance included specific safeguards:
(i) Any decision to release an image to the media must be supported by
written decision making which must be retained;
(ii) The decision to release an image must be approved by an officer in the
District of at least the rank of Superintendent;
(iii) The release to the media must be judged necessary;
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The Reasonable Expectation of Privacy and the Criminal Suspect
...vGermany12 (Von Hannover) and a number ofother domestic cases.13 Lord Toulson also noted the differences in the facts in6In re JR38 [2013] NIQB 44.7 With Higgins LJ dissenting: see ibid at [63].8ibid at [30].9 n 3 above, 136.10 ibid, 136.11 n 1 above at [87].12 Von Hannover vGermany (2004) ......