The Reasonable Expectation of Privacy and the Criminal Suspect
| Author | Joe Purshouse |
| Published date | 01 September 2016 |
| DOI | http://doi.org/10.1111/1468-2230.12218 |
| Date | 01 September 2016 |
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CASES
The Reasonable Expectation of Privacy and the
Criminal Suspect
Joe Purshouse∗
In In re JR38, the Supreme Court unanimously dismissed an appeal from a 14 year-old boy
who argued that the dissemination of his image, taken whilst he was participating in sectarian
rioting, to local newspapers, violated his rights under Article 8 of the European Convention
on Human Rights (ECHR). However, the Court was divided on whether or not the measures
taken by the police engaged the applicant’s Article 8(1) rights at all. This case raises fundamental
questions as to the scope of private life in the context of criminal investigations, and the place of
the European Court of Human Rights’ ‘reasonable expectation of privacy’ test in determining
whether Article 8(1) of the ECHR is engaged. This case comment subjects the majority’s
interpretation of Article 8(1) to critical scrutiny, concluding that this interpretation may unduly
restrict the scope of Article 8 protection for those subject to criminal investigations.
INTRODUCTION
Does the dissemination of a suspected offender’s image interfere with the
enjoyment of his or her right to respect for private life under Article 8(1) of
the European Convention on Human Rights (ECHR)? What if the suspected
offender in question is a minor and the images are taken whilst he participates
in a public riot? These issues were considered in the case of In re JR381(JR38),
where the Supreme Court unanimously dismissed an appeal from a 14 year-old
boy (referred to as JR38). The applicant had argued that the dissemination of
his image to local newspapers, taken by the police whilst he was participating
in sectarian rioting, violated his r ights under Article 8 of the ECHR. However,
the Court was divided in its reasoning for dismissing the appeal. The majority
(Lord Toulson, with whom Lord Clarke and Lord Hodge agreed) held that the
measures taken by the police did not interfere with the applicant’s Article 8(1)
rights and, therefore, did not violate Article 8 of the ECHR. On the other
hand, the minority (consisting of Lord Kerr, with whom Lord Wilson agreed)
observed that, whilst the dissemination of the applicant’s image in this case did
engage Article 8, this interference could be justified as necessary to prevent and
detect crime.
The significant point of divergence between the judgment of Lord Toulson
and the dissent of Lord Kerr is what each attributes to the ‘reasonable
∗ESRC PhD candidate in Law, University of Nottingham. The author would like to thank Paul
Roberts, John Jackson and Craig Purshouse for their comments on an earlier draft, and the anonymous
reviewer for providing useful feedback.
C2016 The Author.The Moder n Law Review C2016 The Modern Law Review Limited. (2016) 79(5) MLR 871–900
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
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