J.S. v. THE UNITED KINGDOM
Inadmissible
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
1. The applicant, J.S., is a British national, who was born in 1993 and lives in Belfast. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Mr F. Shiels of Madden & Finucane Solicitors, a firm of solicitors based in Belfast. 2. The United Kingdom Government (“the Government”) were represented by their Agent, Ms J. Neenan of the Foreign and Commonwealth Office. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 2008 the applicant was a pupil at a high school in County Down (“the school”). On 28 August 2008 the Public Prosecution Service for Northern Ireland (“the PPS”) received a police investigation file which alleged that the applicant had assaulted a teacher at the school. 5. In September and October 2008 teachers at the school refused to teach the applicant because of the alleged assault. On 13 October 2008 the teachers went on strike. In order for the strike to be resolved, the applicant voluntarily excluded himself from school and was provided with alternative educational assistance. 6. The strike nonetheless generated a great deal of publicity. Two articles appeared in the News Letter (one of Northern Ireland’s main daily newspapers) on 21 October 2008. 7. The first article carried the headline “Details of school ‘assault’ revealed” and continued: “Details of the alleged attack which sparked the teachers’ strike at [the school] have been released exclusively to the News Letter ... An incident report filed with [the school’s] management by the teacher who was allegedly attacked has been obtained by the News Letter. The staff member, who wishes to remain anonymous while negotiations continue, claimed he was shoved through the doorway of his class after being screamed and cursed at by the boy ... The pupil is understood to have suffered two family bereavements, including the death of his brother, before the alleged attack. Internal documents show school bosses had branded the boy ‘high risk’, with emotional and anger management issues. Reports also reveal management had warned staff to move at least 3 ft away from the pupil when he was in a confrontational mood. The boy was involved in a serious fight with another [school] pupil earlier this year after he was taunted about family members. He was being taught in the school’s special needs Pupil Support Centre just before the strike. The teachers have asked for the pupil to be removed from school or taught in isolation – but education authorities have refused.” 8. The second article, published under the headline “Pupil involved in 10 detentions” stated: “The pupil at the centre of the strike row was involved in up to 10 detentions in the past year, behaviour records obtained by the News Letter show. The punishments were given between September 2007 and February this year for incidents from aggression directed towards teachers and other pupils to disruptive behaviour and leaving school without permission. He was also involved in a serious fight with another pupil after he was teased about his family, confidential files say. Union officials have insisted the pupil has problems that make him a candidate for special needs teaching. ... The pupil’s monitoring diary from his time in the segregated pupil support centre shows he was making improvements.” 9. A similar article had appeared in the Belfast Telegraph (another daily newspaper published in Belfast) on 20 October 2008 under the headline “Details of strike school incident revealed”. This article also contained details from the monitoring diary, including the applicant’s marks for behaviour and comments made by teachers. 10. During the strike, the media made enquiries of the police, the PPS and the Northern Ireland Office (“the NIO”) as to what action had been taken in respect of the alleged assault at the school. The PPS, through a NIO press release, informed the media that a youth had been reported to the PPS by the Police Service of Northern Ireland (“the PSNI”), that a decision had been issued and that there would be a first appearance on summons in November on a charge of assault. In response to further queries, the PPS informed the media that the youth’s court appearance would take place on 4 November 2008. 11. The press release did not disclose the applicant’s name, age or school. However, subsequent media reports connected the youth in the press release to the previous stories about the strike at the school. Although the applicant’s name was not published, his age, the name of his school and the date of his hearing before the Youth Court were disclosed in these reports. 12. The applicant’s solicitors wrote to the PPS asking it to explain its decision to issue the press release. They also invited the PPS to withdraw the summons and reissue it without informing the media that a new court date had been set. 13. In the absence of a reply from the PPS, the applicant issued judicial review proceedings in which he contended that the information it had disclosed to the NIO and the press constituted an unjustified interference with his rights under Article 8 of the Convention (see section 3 below). 14. On 4 November 2008, in order to have the media excluded from the trial, the applicant applied to the Youth Court for the case to be adjourned to a date not to be announced in open court. The application was refused by the District Judge, who instead adjourned the hearing to 2 December 2008 and ordered that only three reporters could attend it. Pursuant to Article 22 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (“the 1998 Order”) the District Judge also ordered that “no details pertaining to the identification of the applicant be published or released to the media”. 15. The applicant renewed his application in writing. On 2 December 2008 the District Judge decided that the case should not be adjourned to an undisclosed date but indicated that the court would hear argument as to the exclusion of the press. Those arguments were heard on 20 January 2009. The Belfast Telegraph was represented and opposed the applicant’s application for exclusion; the PPS made no representations. 16. After hearing the parties’ arguments, the District Judge refused the application on the ground that, due to the extent of the publicity in the case, much of it from the perspective of the teacher alleged to have been assaulted, the applicant would be disadvantaged by a media ban because it would mean his version of events would not be aired. 17. The applicant sought judicial review of the District Judge’s decision, relying on Articles 6 and 8 of the Convention and Article 40(2)(b)(vii) of the United Nations Convention on the Rights of the Child (see Relevant law and practice below). 18. The applications for permission to apply for judicial review against the PPS (see paragraph 13 above) and against the District Judge’s decision (see paragraph 17 above) were heard together by the High Court, sitting as a Divisional Court. However, on 26 June 2009 the applications were dismissed. 19. The Divisional Court accepted that Article 8 was engaged as the applicant had a reasonable expectation of privacy due first, to the statutory scheme in place under the 1998 Order; and secondly, to the personal intrusion which had arisen from the extensive nature of the media reporting of the case. In reaching this conclusion, the Divisional Court did not consider the applicant’s complaints individually but instead had general regard to the intrusive nature of the media reports taken as a whole. 20. Having found that Article 8 was engaged, the Divisional Court went on to consider whether the PPS had been justified in the disclosures it made and whether the Youth Court had been justified in allowing three members of the press into the hearing. In respect of the PPS disclosures, the Divisional Court found that it was the responsibility of the media not to publish anything that disclosed the name, address or school of a child covered by the 1998 Order and the PPS had not been under any obligation to warn the media of its responsibilities. 21. With regard to the attendance of the press at the hearing, the Divisional Court found that the public interest in securing open justice had outweighed the interest of the applicant in preventing reporting of the case. It added that, in the course of the Youth Court hearing, personal material relating to the applicant might be disclosed in which there was little or no public interest. However, the Divisional Court considered that the Youth Court would make appropriate orders preventing publication of such information. 22. On 1 July 2009 the Divisional Court refused to certify a point of law of general public importance which ought to be considered by the House of Lords. 23. The applicant’s trial began on 26 July 2009. The applicant gave evidence in his defence and was acquitted. The Youth Court found that he had been unlawfully detained by the teacher concerned and that the force used by the applicant on the teacher had been reasonable and proportionate. 24. Before the trial, the applicant’s solicitors had complained to the police about the conduct of the media and alleged that the school had breached its obligations under the Data Protection Act 1998 in releasing personal information about him to the media. The police advised the applicant’s solicitor that the complaint about the release of personal information to the media would be forwarded to Information Commissioner as that aspect of the complaint was not a matter which they could investigate. The police took a statement from the applicant on 25 February 2010. 25. On 7 October 2010 the PSNI wrote to the applicant’s solicitor to confirm that a report has been submitted to the PPS and its advice and direction were awaited. On 12 November 2010 the PSNI notified the applicant’s solicitor that the PPS had advised that the offence in question was a summary only offence and, as such, had become statute barred six months after the date it was committed. No prosecution could therefore be brought. 26. The PSNI did not forward the applicant’s complaint to the Information Commissioner and the applicant therefore complained directly to the Commissioner on 16 November 2010. The outcome of this complaint is unknown. 27. In addition, by letter dated 22 February 2011 the applicant complained to the school about the release of confidential information to the media. The school replied on 14 March 2011, indicating that it had not released any personal or confidential information to the media, except where authorised by the applicant to do so. 28. Article 22 of the above Order provides as follows: “Restrictions on reporting proceedings (1) Where a child is concerned in any criminal proceedings (other than proceedings to which paragraph (2) applies) the court may direct that - (a) no report shall be published which reveals the name, address or school of the child or includes any particulars likely to lead to the identification of the child; and (b) no picture shall be published as being or including a picture of the child, except in so far (if at all) as may be permitted by the direction of the court. (2) Where a child is concerned in any proceedings in a youth court or on appeal from a youth court (including proceedings by way of case stated) - (a) no report shall be published which reveals the name, address or school of the child or includes any particulars likely to lead to the identification of the child; and (b) no picture shall be published as being or including a picture of any child so concerned, except where the court or the Secretary of State, if satisfied that it is in the interests of justice to do so, makes an order dispensing with these prohibitions to such extent as may be specified in the order. ... (4) A court shall not exercise its power under paragraph (3) without - (a) affording the parties to the proceedings an opportunity to make representations; and (b) taking into account any representations which are duly made. (5) If a report or picture is published in contravention of a direction under paragraph (1) or of paragraph (2), the following persons - (a) in the case of publication of a written report or a picture as part of a newspaper, any proprietor, editor or publisher of the newspaper; (b) in the case of the inclusion of a report or picture in a programme service, any body corporate which provides the service and any person having functions in relation to the programme corresponding to those of an editor of a newspaper, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale... (6) For the purposes of this Article a child is ‘concerned’ in any proceedings whether as being the person by or against or in respect of whom the proceedings are taken or as being a witness in the proceedings. (7) In this Article - ... ‘publish’ includes - ... (b) cause to be published...” 29. The relevant Data Protection principles are set out in section 4 of the Act: “4 The data protection principles (4) Subject to section 27(1), it shall be the duty of a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller.” and in paragraphs 1 and 2 of Schedule 1 of the Act: “1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless — (a) at least one of the conditions in Schedule 2 is met, and (b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met. 2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.” 30. Schedule 3 provides that in the case of sensitive personal data, the processing must be necessary for the purposes of exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment. Pursuant to section 2, “sensitive personal data” includes information as to “any proceedings for any offence committed or alleged to have been committed by [the data subject], the disposal of such proceedings or the sentence of any court in such proceedings”. 31. Section 13 of the Act provides for the award of compensation for damage caused by a contravention of the Act: “13 Compensation for failure to comply with certain requirements (1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage. (2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if— (a) the individual also suffers damage by reason of the contravention, or (b) the contravention relates to the processing of personal data for the special purposes. (3) In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned.” 32. Moreover, one of the roles of the Information Commissioner’s office is to uphold information rights in the public interest. The Commissioner can rule on eligible complaints and take appropriate action when the law is broken. In particular, section 40 of the Act permits the Information Commissioner to issue an enforcement notice where a data controller has contravened the Act: “40 Enforcement notices (1) If the Commissioner is satisfied that a data controller has contravened or is contravening any of the data protection principles, the Commissioner may serve him with a notice (in this Act referred to as “an enforcement notice”) requiring him, for complying with the principle or principles in question, to do either or both of the following — (a) to take within such time as may be specified in the notice, or to refrain from taking after such time as may be so specified, such steps as are so specified, or (b) to refrain from processing any personal data, or any personal data of a description specified in the notice, or to refrain from processing them for a purpose so specified or in a manner so specified, after such time as may be so specified.” 33. Section 7(1) of the Human Rights Act 1998 provides that “A person who claims that a public authority has acted (or proposed to act) in a way which is made unlawful by section 6(1) may (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.” 34. Article 40 of the United Nations Convention on the Rights of the Child provides: “1. States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the reintegration and the child’s assuming a constructive role in society. 2. To this end ... the States Parties shall, in particular, ensure that: ... (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: ... (vii.) To have his or her privacy fully respected at all stages of the proceedings.”