In the matter of on application by JR38 for Judicial Review (Northern Ireland) [2015] UKSC 42 (SC)
This was an appeal from the Divisional Court of Northern Ireland. The child, known as JR38, argued that publication of photographs of him constituted a breach of his article 8 rights. The Supreme Court dismissed the appeal. The court considered whether his article 8 right to a private life was engaged.
Details
This case relates to a boy who was 14 years old when images of him committing public order offences were published in two newspapers, the Derry Journal and the Derry News. The publication of the images by the newspapers was part of a police campaign responding to public disorder and sectarian violence.
This was an appeal from the Divisional Court of Northern Ireland. The child, known as JR38, argued that publication of photographs of him constituted a breach of his article 8 rights. The Supreme Court dismissed the appeal. The key question of the court was whether his article 8 right to a private life was engaged.
Lords Clarke, Toulson and Hodge concluded that JR38’s article 8 rights were not engaged, however Lords Kerr and Wilson disagreed. The majority concluded that the test for determining whether article 8 was engaged was whether the person seeking to assert his rights had a reasonable expectation of privacy. The fact that JR38 was a child was no reason for departing from that test, though it was a potentially relevant factor in its application.
Commentary
This case is not strictly about reporting restrictions in criminal cases,1 but it is a useful reminder for youth justice practitioners about why it is important to protect children’s anonymity:
“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.” [Lord Kerr, para 1]
- The court would have a duty to consider the child’s welfare – section 44 Children and Young Persons Act 1933 and the child’s best interests – Article 3(1) United Nations Convention on the Rights of the Child 1989. Therefore consideration of the impact on their welfare is always taken into consideration. (back)