The Human Rights Act (HRA)

There are three key elements of the HRA they are Section 1 which defines Convention Rights. Section 2 (1) (a) which, states that our courts in deciding an issue involving a Convention Right, must take into account any judgment of the ECHR [1] . Section 6 (1) (a) states that it is unlawful for a public authority to act in a way which is incompatible with a Convention Right. [2]

Convention Rights can typically be divided into three classes: Absolute Rights such as Article 3 these Rights cannot be interfered with by any Government or Public Authority. Secondly Limited Rights such as Article 5 ‘The Right to Liberty and Security’ [3] and Article 6 a ‘Right to a Fair Trial’ [4] , this type of Convention Right can be infringed. The final type of Convention Rights are known as Qualified Rights. In regard to the matter of Jon Scurry he believes his Article 8 Right, ‘Right To Respect For Private and Family Life’ [5] has been infringed. However Article 8 is considered to be Qualified Rights this states that a Public Authority or the Government may restrict or infringe the rights of an individual in certain circumstances. Qualified Rights are usually broken into two paragraphs ‘Rights’ and ‘Restrictions’. These are considered to be the all rights that involve an individuals Rights against society, these include Articles 8 to 11.

In order to assess whether Scurry’s Human Rights have been breached, we must consider if the Police would fall under the category of a being a “public authority”. Section 6 (3) (b) defines a public authority as “any person certain of whose functions are functions of a public nature” [6] . The Police would therefore be considered a Public Authority. It is for this reason that the Police can therefore interfere with Scurry’s Human Rights. If someone is trying to enforce a Convention Right against a private sector person section 6 (1) (a) would not apply but if the individual can get the case before a court or tribunal then the court must uphold that persons Convention Right e.g. a person can claim against unlawful discrimination at work under the Equality Act 2010 can in a Tribunal claim their Convention Rights [7] , this is called the Horizontal effect.

As previous mentioned Article 8 is considered to be a ‘Qualified Right’ and as a result the ECHR has developed two principles when looking at Qualified Rights which are the margin of appreciation and proportionality.

In regard to the case of Jon Scurry his Human Rights especially his Article 8 Rights can be infringed. This is demonstrated in Article 8 (2) which states that this Right (Article 8) may be infringed “except in accordance with the law”[8]. One must go back to the law of England and Wales to see whether the restriction is allowed under our law. If it is not in accordance with the law then there must be a breach of the Convention Right. Such as in the case of Kokkinakis v Greece[9] the complainant went to the ECHR arguing that his Rights in particular Article 9 had been infringed. But when the matter came before the ECHR the Greek Government could not produce a reason(s) from the list of restrictions in Article 9 to justify his arrest.

Qualified Rights have set criteria which allow an individual’s Rights to be infringed and if a Public Authority satisfies this criteria then they can infringe it.

The ECHR has developed the doctrine of Margin of Appreciation when looking at Qualified Paragraphs. The case of Handyside v United Kingdom [10] illustrates this point. The Home Secretary banned Handyside’s book under the Obscene Publications Act 1959. Handyside complained to the ECHR. However Article 10 of the HRA is considered to be a Qualified Right and as a result one of the restrictions which allows an authority to interfere with Article 10, ‘Freedom of Expression’ is “for the protection of health and morals” [11] . The latter ‘morals’ is the vital issue in this case. As a result the ECHR stated that, “each individual Government knows the morality of its own people best. Each Government has a range of discretions a margin of appreciation”. Therefore the ban imposed on this book was held to be within the margin of appreciation and as a result it was not considered to be a breach of the Article 10(1) Right. In the case of Jon Scurry it may well be argued that his Human Rights have been lawfully infringed because the release of the CCTV footage would be considered a matter of “public safety” which is one of six restrictions in Article 8 allowing a public authority to interfere with this Convention Right.

The European Court also has another doctrine known as Proportionality. This is the principle that a public authority or Government should not infringe or restrict more than they need to. Releasing the footage of Jon Scurry may be considered to be infringing more than they need to. This principle is evident in the case of Peck v United Kingdom [12] it was argued that section 2 of Article 8 states that this Convention Right can be infringed by a public authority “…for the prevention of disorder or crime…” [13] . However, this result was considered to be disproportionate interference giving the fact that Claimant had suffered public angst it was therefore unlawful and a breach of Peck’s Human Rights. If we apply the case of Peck to Scurry’s it is clear that if the CCTV video of him was released it may be of social and personal detriment to him. Firstly he was in his motor vehicle with another woman other than his wife; this may have serious consequences on his family life after all he is a married man. This could lead to the defamation of his character, libel which “lowers plaintiffs in the estimation of right thinking people, or expose them to hatred, ridicule or contempt” [14] as in the case of Campbell v MGN [15] . In which Campbell was photographed attending a Narcotics Anonymous Clinic and it was assumed that she was therefore a drug addict. Similarly if the footage of Jon Scurry is released then he may be seen as having an affair. It may also be of financial detriment to him because he may also lose his celebrity endorsements such as in the cases of Tiger Woods and Wayne Rooney when allegations about their private life surfaced.

With regard to Scurry it may also be argued that releasing the footage is a matter of Public Interest which is defined as “the well-being of the general public” [16] .

The general consensus is that “The media will not be stopped from publishing confidential material if the court is convinced that the publication is in the public interest. What is ‘in the public interest’ … will depend very much on the outlook of the judge. The courts have unhesitatingly refused to suppress stories … involving pop stars.” [17]

An example would be the “Intoximeter” case “… the possibility that persons were being convicted of drink – driving offences as a result of instrument inaccuracies provided a serious defence of public interest which might be vindicated …” [18]

A fairly recent example of this would be the 2007 ‘Cash for Honours Scandal’. “The matter involved the Attorney General seeking to obtain an injunction to prevent disclosure of the identity of one of the persons involved. Despite this the injunction was refused on the grounds that it was a matter of public interest.” [19] if applied to the case of Scurry it is possible that the Police can absolve themselves from not having been in hot pursuit car chases which will in turn help to dispel the belief that the Police are the root cause of the incidents that have followed in the past. As Lord Denning in the matter of the “Primodos Affair” stated “the public interest in receiving information … far outweighs the private interest of … preventing discussion of it.” [20]

If an individual such as Jon Scurry believes that his Human Rights have been infringed especially Article 8, by a Public Authority or they are proposing to infringe his Human Rights, under Section 7 entitled Proceedings “A person who claims that a public authority which has acted (or proposes to act) in a way which is made unlawful by section 7 (1) (a) “may bring proceedings against this Act in the appropriate court or tribunal” [21] . It is perhaps also worthy to mention that there is a time limit in Section 7 (5) [22] of one year in which the matter can be brought before trial.

If Scurry believes that the CCTV footage is a “misuse of information” which is information that “has the potential to damage reputations” [23] . Then he may well seek to apply for a “gagging order”. A gagging order is a means of prohibiting the release of information on a certain topic.

Recently an unknown England International footballer referred to as “ZXC” obtained a gagging order from the Royal Court of Justice which prevented another individual publishing information about his private life [24] . However it is also worthy to remember that these so – called “gagging orders” are not always effective former England Captain John Terry lost such a proceeding. The reason for this was stated by Mr Justice Tugendhat was “…the fact that the information has become as widely available to so many people, means that an injunction is less necessary or proportionate than would otherwise be the case…” [25]

Scurry may well be entitled to obtain an Interim Injunction which is “… an order suppressing publication until trial … The purpose of the ‘interim injunction’ is usually to stop publication until embarrassing plans can be reconsidered…” [26] .

“Damages are also available, in addition to, or in substitution for, injunctive relief and regardless of whether or not the court could also have ordered injunctive relief in the particular circumstances. Until Campbell there was no authority for the reward of damages for emotional distress, but precedents exists in other areas of law” [27] .

“Strasbourg has recognised the need to compensate for ‘moral damage’ including emotional distress” [28]

There is no actual statue governing the use of CCTV’s especially for the use of surveillance [29] . The Data Protection Act 1998 does not explicitly mention the Right to Privacy, it was simply a means to help bring the United Kingdom in line with the Data Protection Directive of the EU. If Scurry believes that his right to the Data Protection Act 1998 is breached then “under section 42 an individual has the right to make a complaint to the Information Commissioner’s Office.” [30]

However there still remain certain exemptions to the Data Protection Act such as for instance in the matter of Jon Scurry. The Police want to issue the release of the footage, because according to their press officer it will bring witnesses forward. So if Scurry tries to prevent the footage from being released or tried to prevent himself from being identified under the Data Protection Good Practice Note releasing information to prevent or detect crime “The exemption does not cover the disclosure of all personal information, in all circumstances. It only allows you to release personal information for the stated purposes and only if not releasing it would be likely to prejudice (that is, significantly harm) any attempt by police to prevent crime or catch a suspect.” [31]

It is my respectful submission I believe the release of the CCTV footage is not a breach of Scurry’s Human Rights. It is worthy to remember that Article 8 of the HRA is a ‘Qualified Right’ not an ‘Absolute Right’. The release of the footage may be a way of restoring the faith in the Police force. The first principle of the Police Officers Code of Conduct ‘Honesty and Integrity’ states “It is of paramount importance that the public has faith in the honesty and integrity of police officers.” [32] So the release of the footage will help to dispel the belief that the Police had previously been involved in “hot pursuits”.

According to Mark Blunden a Technology Lawyer CCTV’s have “…a notice warning of …operation if it is being used in a public place”. There are two elements to the notice: first, the need to draw attention to the existence of the system; and, second, to explain the function.” [33]

If the matter of Scurry was bought before the Courts and he was to raise the issue “what about breach of privacy?” Peter Lodder QC says that it is difficult for people to complain about being caught on camera in a public place because “you are outside your home so there is no argument based on privacy”.