Von Hannover v Germany

The constitutional arrangements emphasised in this passage do not of course apply to the Ministerial or Departmental act of introducing, or the omission of not introducing, a measure of subordinate legislation commencing a dormant provision of primary legislation. However they provide the point of departure in any consideration of the discrete regime constituted by the combined provisions of sections 6 and 21 HRA 1998. The legislative policy thus proclaimed was one of excluding the court from adjudicating upon a failure to make primary legislation. The separate legislative policy of insulating Government Ministers and Departments in the matter of commencing (or not) dormant provisions of primary legislation is comparable, particularly when one reflects on practicable realities. In this context the following observations in Administrative Law (Wade and Forsyth, 10 th Edition) at page 731ff are of note:

“ Parliament is obliged to delegate very extensive law making power over matters of detail and to content itself with providing a framework of more or less permanent statutes …

Administrative legislation is traditionally looked upon as a necessary evil, an unfortunate but inevitable infringement of the separation of powers. But in reality it is no more difficult to justify it in theory than it is possible to do without it in practice. There is only a hazy borderline between legislation and administration and the assumption that they are two fundamentally different forms of power is misleading …. There is an infinite series of gradations, with a large area of overlap, between what is plainly legislation and what is plainly administration. ”

Thus one must be alert to the practical outworkings of the constitutional truism that the executive has no legislative power.

[38] When the court invited the parties to address this discrete issue there was no dissent from either on the correctness of the foregoing analysis. It follows that the appellant’s case against DOJ is unsustainable and the appeal must fail.

Reflections on the appellant’s Primary Human Rights Case

[39] While strictly unnecessary to do so, given the foregoing conclusion, we consider that it would be of benefit to address the substantive issues raised, taking into account that the court received full argument.

[40] As regards the appellant’s primary case the battle lines between the parties are drawn in the following way. The starting point of the submissions of Mr Ronan Lavery QC and Mr Sean Mullan (of counsel) on behalf of the appellant is the proposition that the State must provide adequate measures to protect the anonymity of children who are formally suspected of criminal conduct. The contrast between the situation in which the appellant found himself, namely a child suspected, but not accused, of a criminal offence and the protections available to children who are thus accused and are inconsequence the subject of criminal court proceedings. The essential ingredients of the appellant’s primary case are encapsulated in the following passage in counsel’s skeleton argument:

“ The learned judge erred in law in determining that the Respondent has not acted in breach of the Applicant’s rights in accordance with Article 8 ECHR. The Respondent bears the burden to ensure that this vulnerable child has his privacy protected at all stages of the criminal process. This positive obligation is not being fulfilled and was not fulfilled as evidenced by the factual matrix for this Applicant ….

The learned judge erred in law in finding that adequate protection of the Applicant’s rights under Article 8 ECHR exists by way of civil action and/or press regulation. The Applicant’s circumstances showed the ineffectiveness of this approach. For example the Applicant, as a child, was forced to seek high court injunctions against national newspapers and global American corporations (Google and Twitter). By the time this was all achieved the damage was already caused. Bearing in mind the vulnerability of the Applicant, he and his family were forced to uproot and move home due to the pre-charge naming. ”

We shall consider infra the main decided cases upon which the appellant advances these submissions.

[41] The riposte of Mr Tony McGleenan QC and Mr Aidan Sands (of counsel) on behalf of DOJ entails the following primary contention. The civil law provides adequate mechanisms for the protection of the appellant’s rights and the positive obligation dimension of Article 8 ECHR does not require DOJ either to provide further protection by legislation or to commence section 44 of the 1999 Act. It was further submitted that a human rights challenge of the species advanced by the appellant is not possible having regard to s 6(3) of the Human Rights Act.

[42] The civil law protections invoked by DOJ focus mainly on the tort of misuse of private information. DOJ also relies on the IPSO’s COP (noted in [20] above). Counsel also emphasised the margin of appreciation available to Council of Europe States Parties in their adoption of measures designed to give effect to Convention rights. The latitude which this entails, it was submitted, is at its most extensive in the specific context of Article 8 positive obligations imposed on the State.

[43] We turn to consider the main decided cases invoked in the competing contentions of the parties. In X and Y v The Netherlands [1985] 8 EHRR 235 the ECtHR considered the case of a mentally handicapped young person whose allegation of rape did not give rise to a prosecution. The Article 8 ECHR complaint which ensued focused on the absence of any domestic law mechanism whereby the victim could appeal against this decision. The Strasbourg Court decided that a breach of Article 8 was established by virtue of the State’s failure to legislate so as to provide a right of appeal. The effect of this failure had been to violate the complainant’s right to respect for private life. The court expounded the positive obligation doctrine at [23]:

“ The Court recalls that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. 7 These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. ”

At [27] the court rejected the Government’s contention that available civil law remedies provided adequate protection for the complainant’s right to respect for private life:

“ The Court finds that the protection afforded by the civil law in the case of wrongdoing of the kind inflicted … is insufficient. This is a case where fundamental values and essential aspects of private life are at stake. Effective deterrence is indispensable in this area and it can be achieved only by criminal law provisions; indeed, it is by such provisions that the matter is normally regulated. ”

[44] In Mosley v United Kingdom [2011] 53 EHRR 30 , a prominent national newspaper published an article concerning the Applicant’s alleged engagement in sadomasochistic activities. The publication extended to still photographs and, on the internet, a video. The Applicant’s application for an interim injunction was refused on the ground that the offending material was already in the public domain. He was subsequently awarded £60,000 damages for invasion of his privacy and breach of confidence. His ensuing application to the ECtHR centred on his complaint that the Government had failed to discharge its positive obligations under Article 8 ECHR by failing to require the media organisation to notify the Applicant in advance of its publication intentions, thereby giving him the opportunity to apply to the court for a prohibitive injunction. The ECtHR dismissed the Applicant’s case. The following are the key passages in the court’s judgment, which require to be reproduced in full at [118] - [132]:

(i) The margin of appreciation

(ii) The clarity and effectiveness of a pre-notification requirement

(iii) Conclusion

[132] However, the Court has consistently emphasised the need to look beyond the facts of the present case and to consider the broader impact of a pre-notification requirement. The limited scope under art.10 for restrictions on the freedom of the press to publish material which contributes to debate on matters of general public interest must be borne in mind. Thus, having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court is of the view that art.8 does not require a legally binding pre-notification requirement. Accordingly, the Court concludes that there has been no violation of art.8 of the Convention by the absence of such a requirement in domestic law.

[45] In earlier passages, at [106] ff, the court reflected on the positive obligation under Article 8 ECHR to which the State may sometimes be subjected. It emphasised inter alia “ the importance of a prudent approach to the State’s positive obligations to protect private life in general and of the need to recognise the diversity of possible methods to/ secure its respect ”, adding:

“ The choice of measures designed to secure compliance with that obligation in the sphere of the relations of individuals between themselves in principle falls within the Contracting States margin of appreciation. ”

In the next sentence the court used the term “ discretion ”, simultaneously recording its earlier decision in X and Y v The Netherlands : see [107]. The court developed this theme at [108]:

“ The Court recalls that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be accorded to the state in a case in which art.8 of the Convention is engaged. First, the Court reiterates that the notion of “respect” in art.8 is not clear-cut, especially as far as the positive obligations inherent in that concept are concerned: bearing in mind the diversity of the practices followed and the situations obtaining in the contracting states, the notion’s requirements will vary considerably from case to case. Thus Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. In this regard, the Court recalls that by reason of their direct and continuous contact with the vital forces of their countries, the state authorities are, in principle, in a better position than the international judge to give an opinion on how best to secure the right to respect for private life within the domestic legal order.

At [109] the court adverted to the attenuation of the State’s margin of appreciation where the interference with private life is particularly serious, for example where it concerns something especially intimate, as in Dudgeon v United Kingdom [1981] EHRR.

[46] Continuing, at [110] the court reasoned that the extent of the State’s margin of appreciation where positive Article 8 obligations are canvassed is further measured where there is an absence of consensus among Contracting Parties either about the relative importance of the interest at stake or the best means of protecting it, stating that “ … where no consensus exists, the margin of appreciation afforded to States is generally a wide one … ”. Next the court highlighted its (well established) willingness to take into account “ any standards set out in applicable international instruments and reports ”.

[47] The court then turned its focus to Article 10 ECHR, first identifying the familiar balance principle at [111]:

“ In cases where measures which an applicant claims are required pursuant to positive obligations under Article 8 would have an impact on freedom of expression, regard must be had to the fair balance that has to be struck between the competing rights and interests under Article 8 and Article 10 … rights which merit, in principle, equal respect …. ”

[Emphasis added.]

In the ensuing passages the judgment emphasises the pre-eminent role of the press in informing the public and imparting information and ideas on matters of public interest and notes that methods of objective and balanced reporting may vary considerably, thereby limiting the adjudicative role of the court.

[48] In what follows the judgment highlights the distinction between reporting facts, including controversial facts, capable of contributing to a debate of general public interest in a democratic society (on the one hand) and making tawdry allegations about an individual’s private life (on the other); makes a distinction between the more powerful audio visual media and the less potent print media; recalls that the balancing of competing interests would take into account whether the publication of a person’s photograph made any additional contribution to a debate of general interest; highlights the importance of taking into account also the nature and severity of any sanction imposed on the press in respect of a given publication, emphasising once again the importance of “ matters of legitimate public concern ”; and, finally, states at [117]:

“ Finally, the Court has emphasised that while art.10 does not prohibit the imposition of prior restraints on publication, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest. 58 The Court would, however, observe that prior restraints may be more readily justified in cases which demonstrate no pressing need for immediate publication and in which there is no obvious contribution to a debate of general public interest.”

[49] The decision of the ECtHR in Von Hannover v Germany [2004] EHRR [2005] 40 EHRR 1 is an illustration of the court finding that the domestic laws of the Contracting State concerned failed to strike a fair balance between the applicant’s right to respect for private life and the competing right to freedom of expression of media publishers. In a nutshell, Princess Caroline, a well-known public figure internationally, had litigated in the German courts for a period of some ten years attempting to secure effective domestic remedies against the repeated publication of photographs of a male associate, her children and the Princess, coupled with articles, publishing details of her private life. The determinative consideration for the court was that the publications made no contribution to a debate of general interest, given that the Princess exercised no official function and the published materials related exclusively to details of her private life, there being no legitimate public interest in knowing where she was and how she behaved in her private life: see [76] - [77]. In a sentence, the State’s margin of appreciation did not come to its rescue because its laws and courts had failed to strike a fair balance between the competing interests.

[50] In Richard v BBC and Another [2019] Ch 169 the claimant, a high-profile entertainer, was the subject of a police investigation into an allegation of a historical sexual offence, in the course whereof the police gave advance notice to a broadcaster of a search of the claimant’s home. Prominent television coverage followed. In the event no charges were brought. The court ruled that prima facie a suspect has a reasonable expectation of privacy in relation to a police investigation. This was based on what the court considered to be a general rule that third parties had no need to know of police investigations, coupled with the pragmatic consideration that wider knowledge could have potentially damaging consequences. The claimant was considered to have a reasonable expectation of privacy vis-à-vis both the police force and the broadcaster. As a result his right to respect for private life under Article 8 ECHR was engaged.

[51] The balancing exercise which the court then conducted under Article 8(2) ECHR was resolved in favour of the claimant by reference to three particular considerations: first, there was no public interest in identifying the claimant as the subject of the investigation; second, very serious consequences for the claimant, magnified by the dramatic and sensationalist style of the broadcaster’s publications, had ensued; and, third, there had been no engagement by the broadcaster with the claimant in advance of publication. In these circumstances the claimant’s rights under Article 8 were considered to outweigh the broadcaster’s rights under Article 10. The proceedings involved the claimant and the broadcaster only, the police having accepted liability, having apologised and having paid the claimant damages and costs.

[52] The heart of the reasoning of the trial judge, Mann J, can be ascertained from [248] - [251] of his judgment:

“[248] It seems to me that on the authorities, and as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation, and I so rule. As a general rule it is understandable and justifiable (and reasonable) that a suspect would not wish others to know of the investigation because of the stigma attached. It is, as a general rule, not necessary for anyone outside the investigating force to know, and the consequences of wider knowledge have been made apparent in many cases: see above. If the presumption of innocence were perfectly understood and given effect to, and if the general public were universally capable of adopting a completely open and broad-minded view of the fact of an investigation so that there was no risk of taint either during the investigation or afterwards (assuming no charge) then the position might be different. But neither of those things is true. The fact of an investigation, as a general rule, will of itself carry some stigma, no matter how often one says it should not. This was acknowledged in Khuja v Times Newspapers Ltd [2019] AC 161 (the PNM case renamed in the Supreme Court). The trial judge had acknowledged that some members of the public would equate suspicion with guilt, but he considered that members of the public generally would know the difference between those two things: see para 32. Lord Sumption JSC was not so hopeful. He observed, at para 34: “Left to myself, I might have been less sanguine than he was about the reaction of the public to the way PNM featured in the trial.”

[249] In the same case the minority justices (Lord Kerr of Tonaghmore and Lord Wilson JJSC) quoted, at para 52, from Cobb J's observations in Rotherham Metropolitan Borough Council v M [2016] 4 WLR 177 with approval.

‘Then Cobb J quoted from a leading article in The Times on 19 October 2016 as follows: ‘False rape and abuse accusations can inflict terrible damage on the reputations, prospects and health of those accused. For all the presumption of innocence, mud sticks.’ In the end Cobb J concluded that the restriction orders against identification of the men should be continued indefinitely. He said, at para 46: ‘I have reached the firm conclusion that there is no true public interest in naming the four associated males, against whom, in the end, no findings have been sought or made. [Their] article 8 rights … would be in my judgment significantly violated were they to be publicly exposed in the media as having been implicated to a greater or lesser degree, but not proved to be engaged, in this type of offending.’ These observations seem to us to show great insight and to resonate strongly with the facts of the present case.’

[250] These judicial remarks demonstrate at least some of the reasons why an accused should at least prima facie have a reasonable expectation of privacy in respect of an investigation. They are particularly appropriate to the type of case referred to there (of which, of course, the present case is an instance) but they are generally applicable, to varying extents, to other types of cases.

[251] That is not to say, and I do not find, that there is an invariable right to privacy. There may be all sorts of reasons why, in a given case, there is no reasonable expectation of privacy, or why an original reasonable expectation is displaced. An example was given by Sir Brian Leveson in the extract quoted above, and others can be readily thought of. But in my view the legitimate expectation is the starting point. I consider that the reasonable person would objectively consider that to be the case.”

[53] Mosley contains extensive guidance on how the appellant’s Article 8 ECHR challenge should be resolved. The starting point in the analysis, as already noted, is the uncontroversial one that the offending information about the appellant which was published by the media belongs to the realm of his private life, thus qualifying for protection under Article 8(1) ECHR. The second step in the analysis, again uncontroversial, is that while the media publications interfered with the appellant’s enjoyment of this right this interference was not perpetrated by the public authority DOJ, against whom the appellant’s case is brought. Rather the interference attributed to DOJ is a failure to have acted in a manner which could - not would - (our characterisation) have protected the Appellant against the offending publications. As already noted, this broad formulation telescopes to the narrower specific complaint that DOJ has interfered with the appellant’s right to respect for his private life by failing to commence section 44 of the 1999 Act ( supra ). As the responsibility for taking this step rests by statute exclusively on DOJ by virtue of the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010, DOJ is the appropriate respondent in these proceedings.

[54] DOJ’s response to the appellant’s case, in a sentence, is that the non-commencement of section 44 of the 1999 Act lies within its margin of appreciation (in Strasbourg terms), or discretionary area of judgement (in domestic law terms), and, therefore, does not constitute an interference by omission with the appellant’s right to respect for private life. The evidential foundation of the DOJ case is summarised in [18] - [19] above. In short, Parliament (initially) and DOJ (latterly) have been engaged in a balancing exercise. The ingredients of the equation, in addition to Article 8 and Article 10 ECHR, have included the potential for media reporting to protect children in certain instances - see [17](ii) above - the desirability of responsible self-regulation by the media, the willingness of the latter to fortify this mechanism, the availability of civil law remedies, the absence of concerns expressed by relevant agencies and persons and, finally, that in the experience of DOJ post-devolution since April 2010, viz in a ten year period, the appellant’s case is the only one of its kind to have materialised.

[55] The various facts and factors summarised immediately above bear on the reach of the margin of appreciation available to the respondent, DOJ. In its evaluation of the scope of DOJ’s margin of appreciation, this court further takes into account that the offending publications did not involve the dissemination of something belonging to the inner sanctum of the intimate aspects of the appellant’s private life; the criminality stimulating the appellant’s arrest and interview and the ensuing publications was a matter of legitimate public interest; the subject matter of the publications was not of the lurid or salacious variety; the measures adopted to secure a person’s right to respect for private life are not the subject of broad consensus among Council of Europe Contracting Parties; the two rights lying at the heart of the balancing exercise - Article 8 and Article 10 - are in principle are worthy of equal respect; the offending publication was effected by the print media and not the audio visual media; and the restraints for which the appellant contends would have been operative at the pre-publication stage, thereby imposing a blanket prohibition on dissemination of the information under scrutiny. The legitimacy of the court taking into account all of the foregoing facts and considerations derives from the decided cases, in particular Mosley , considered above.

[56] In addition to the foregoing, it has been a constant theme of the ECtHR jurisprudence that State agencies rather than courts are, in principle, better equipped to undertake the kind of evaluative judgements involved in determining how best to secure the right to respect for private life within the domestic legal order and in weighing the panoply of considerations bearing on the balance to be struck between the competing Article 8 and Article 10 rights.

[57] Mr Lavery QC understandably points out that self-regulation by the press and the availability of civil remedies were not efficacious to prevent the publications of which the appellant complains. Furthermore we accept that the COP, considered in [19] above, contains no specific provision either exhorting against or prohibiting the offending publications. On the other hand, the correspondence considered in [48] infra is indicative of a general inclination towards self-restraint by the media in the matter of publishing information concerning “pre-charge children”. This serves as a reminder that Article 8(1) ECHR does not establish rights of an absolute nature.

[58] The evidence before the court includes a letter dated 15 December 2015 written by the Managing Editor of Guardian News and Media Limited to the Standing Committee for Youth Justice. This contains the statement:

“ There is no specific legal impediment to naming children (by which I mean those aged 17 or under) who are suspected of criminal activities before charge. ”

Narrowly construed, this statement may be correct. However it overlooks the very issue raised by the present challenge namely that in certain circumstances a publication of this kind could violate a child’s right to respect for private life protected by Art 8(1) ECHR, subject to the machinery of the Human Rights Act applying. The author, correctly, acknowledges in the ensuing passage the influence of the torts of defamation and misuse of private information. However, in what follows, one finds the terminology “ a child accused of crime pre-charge ”. This phraseology suffers from palpable confusion. Unless and until a charge is formally levelled against a person there is no accusation of a criminal offence under UK law. Rather, the scenario is one of suspicion . The Managing Editor’s letter blurs this important distinction. Subject to those observations, one can readily identify within this letter, coupled with the voluntary withdrawals from publication which followed, indications of the responsible self-regulation of the media forming one of the pillars of DOJ’s response to this challenge.

[59] The relevant factual matrix contains a multiplicity of ingredients which do not unremittingly point in the same direction. It is incumbent on the court to stand back and view these as a whole, while giving effect to the principles derived from the ECtHR jurisprudence. This requires the formation of a judicial evaluative judgment which is alert to the operation of certain constraints on the judicial role in this kind of case. One aspect of this is that this court should exercise “ caution ” (in the language of the Strasbourg Court) given the wide margin of appreciation available to the State in this discrete litigation context.

[60] Weighing all of the foregoing, had it been necessary to resolve the appellant’s primary human rights case we would have concluded that the failure of DOJ to act in the manner of which the appellant complains, namely its non-commencement of section 44 of the 1999 Act, did not as regards the offending publications by non-State actors interfere with the appellant’s right to respect for his private life. In short, DOJ has not exceeded its margin of appreciation.

[61] We would add that as decisions such as Von Hannover make clear, the appellant’s Art 8 case has been played out, and determined, by the court within the framework of Article 8(1). For the reasons given, no i nterference by DOJ with the appellant’s right to respect for private life has been established. Therefore the court’s enquiry does not progress to Article 8(2).

[62] In passing, if and insofar as the appellant’s legal challenge has highlighted any possible lacuna in the COP, the response to this will be a matter for the agencies concerned.

[63] We would add the following, bearing in mind that courts conducting criminal proceedings to which Article 22(1) and (2) of the 1998 Order apply, will benefit from a little guidance on how they should exercise the judicial discretion created by these statutory provisions. We refer to the analysis in [9] - [15] above. As noted in [47], the Strasbourg Court has described the rights guaranteed by Article 8 and Article 10 ECHR as deserving of “ equal respect ”. This requires some analysis. In cases where it falls to the court to balance these rights the context will of course be all important. Thus in cases to which Article 22(1) and (2) apply the age of the defendant will be a matter of unmistakable significance. The open justice principle is at its strongest in respect of the right of the press to publish a fair and accurate account of court proceedings. Even here, however, the legislative steer is towards the anonymisation of children and young people charged with offences. The court concerned will be obliged to act compatibly with the defendant’s right to respect for private life under Article 8 ECHR. This exercise will entail balancing the principle of open justice and the freedom of expression rights enjoyed by media organisations under Article 10 ECHR. We consider that in such cases the international standards rehearsed in [21] - [25] above will be of particular importance. As a matter of legal doctrine, these standards influence how Article 8 is to be applied in any given case and how balancing exercises involving inter alia Article 8 are to be resolved. The clear and consistent orientation of these standards is to allocate to an elevated plane the importance of protecting the privacy of children involved in the criminal justice system. This is expressed in the terms of an imperative, with a clearly explained rationale. Thus it is to be expected that the Article 8 rights of children involved in criminal proceedings will prevail in all but the most exceptional circumstances.

[64] Logically, the aims and objectives of the international standards and the protection provided by Article 8(1) ECHR must apply with equal force to children whose encounter with and involvement in the criminal justice system is at a preliminary stage (as in this case) falling outwith the framework of Article 22(1) and (2) of the 1998 Order. The express terms of the UNCRC provisions considered above, in tandem with the open textured language of the other international standards highlighted, strongly support this analysis. Thus cases in which a public authority can lawfully depart from this norm - such as Re JR 38 [2015] UKSC 42 - will be rare. It follows that if a public authority such as the PSNI or the DPP had made the publications impugned by the appellant it is highly unlikely that justification could have been established.

[65] We consider the foregoing to be harmonious with what the Supreme Court stated in Re S (Children) [2004] UKSC 47 at [16] - [17], per Lord Steyn:

“ It is, however, the interaction between articles 8 and 10 which lies at the heart of this appeal. They provide as follows:

"Article 8

Right to respect for private and family life

"Article 10

Freedom of expression

By section 12(4) of the Human Rights Act 1998 Parliament made special provision regarding freedom of expression. It provides that when considering whether to grant relief which, if granted, might affect the exercise of the Convention right to freedom of expression the court must have particular regard to the importance of the right. …

The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232 . For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.”

Reflections on the appellant’s alternative case: Articles 6 and 8 ECHR in tandem with Article 14

[66] The late emergence of this alternative case when the appeal was first listed before this court gave rise to the remittal order pursuant to which Colton J delivered a second judgment. At the same time this court permitted amendment of the appellant’s pleading. Whereas the appellant’s primary case is founded on an asserted breach of his right to respect for private life protected by Article 8(1) ECHR his alternative case, invoking Article 14 ECHR, entails the contention that he was the victim of discriminatory treatment within the ambit of not only Article 8 but also Article 6. This is reflected in the corresponding relief now pursued:

“ A declaration that the failure to provide the [appellant] with pre-charge anonymity created unlawful discrimination contrary to [his] rights under Article 14 [ECHR] in conjunction with Article 6 and/or Article 8. ”

[67] In the final incarnation of the appellant’s Order 53 pleading, his Article 14 ECHR case was formulated in the following terms:

“ Unless read in a Convention compliant manner under section 3 of the Human Rights Act 1998, Article 22 of the [1998 Order] is necessarily inconsistent with, and in violation of, the rights of the Appellant under ……. Article 14, in conjunction with Article 6 and Article 8 ECHR by virtue of representing infringements of those rights which are neither proportionate nor necessary in a democratic society.

Particulars

(i) [Article 22] unlawfully discriminates against the Appellant contrary to Article 14 in conjunction with Articles 6 and 8 ECHR by disadvantaging him on the basis of his status when compared to comparable persons in analogous situations without reasonable justification.

(ii) The Appellant has suffered discrimination on the basis of the following statuses as created by the provisions of Article 22:

(a) A minor concerned in criminal proceedings not protected by Article 22(2).

(b) A minor concerned in criminal proceedings including a criminal investigation where no court proceedings have been commenced.

(c) A minor concerned in criminal proceedings where no court hearing has taken place.

(iii) When one compares the Appellant with those persons who are protected by the reporting restrictions set out in Article 22(2) he has been treated less favourably with no reasonable justification.

(iv) The Appellant has also suffered indirect discrimination by the operation of Article 22 on the basis of his age by making no distinction between the treatment of him as a child and an adult in equivalent circumstances, namely:

(a) An adult concerned in criminal proceedings where no criminal proceedings have been commenced, or

(b) Where proceedings have been commenced but no court hearing has taken place. ”

[68] Every Article 14 case requires the court to pose and answer in a disciplined way a series of questions:

(i) Does the case fall within the ambit of any of the substantive Convention rights invoked?

(ii) Does the claimant possess either a status expressly specified in Article 14 or some “ other status ” falling within its embrace?

(iii) Is the claimant the victim of differential treatment when compared with others in analogous situation?

(iv) Is such differential treatment on the ground of the claimant’s Article 14 protected status?

(v) Applying the relevant test , has the public authority concerned discharged its burden of establishing justification for the differential treatment, by the demonstration of one of the specified legitimate aims and a proportionate means of achieving this?

We shall elaborate infra on the relevant test applicable to (v).

[69] The Article 14 tests operate in a cumulative way. Thus each of the questions must be answered in a manner favourable to the claimant before proceeding to the next. If the resolution of any of the questions is unfavourable to the claimant, the Article 14 claim must fail.

[70] It is not contested on behalf of DOJ that the appellant’s case satisfies the ambit test vis-à-vis both Article 6 and Article 8. There are two features in particular of Article 6 which resonate in the case of this appellant. First, the autonomous concept of a “ charge ” within the Article 6(1) framework materialises when the situation of the person concerned is substantially affected : see Ambrose v Harris [2011] UKSC 35 , at [62] and O’Neill v HM Advocate (No 2) [2013] UKSC 36 , together with the recent review of the leading authorities in the decision of this court in R v Dunlop [2019] NICA 72 at [25] - [26]. In the present case, while the information available is not particularly detailed, we are disposed to accept the agreement between the parties that this test was satisfied in the relevant circumstances, namely the arrest of the appellant on suspicion of having committed the relevant offence, ensuing interviews by the police and his release from custody without any withdrawal of the suspicion of his criminality. In Article 6 terms the criminal process involving the appellant had begun.

[71] The second resonant feature of Article 6(1) on the facts of the appellant’s case concerns the protections against publicity which Article 6 is capable of providing. Article 6 specifically permits derogation from the general principle of publicity where inter alia the interests of juveniles or the protection of a party’s private life so require. The submissions of Mr Lavery QC and Mr Mullan reminded the court of the importance which the ECtHR attributed to this derogation in the high profile case of T and V v United Kingdom [2000] 30 EHRR 121 . Given the two features noted we are prepared to accept the parties’ joint position that the ambit test is satisfied in this case.

[72] Progressing to the second test, the starting point is that the appellant cannot lay claim to any express status in the Article 14 “list”. The question therefore becomes whether he possesses an “ other status ”. Having taken account of the elaborate pleading reproduced above, we consider that the “ status ” of the appellant at the material time was that of a child suspected of, but not charged with, a criminal offence in the context of a continuing police investigation. Counsels’ submissions invoked the decision of the Supreme Court in R (Stott) v Secretary of State for Justice [2018] UKSC 59 . The issue in that case was the lawfulness of the different treatment in the matter of early release from prison of extended determinate sentence prisoners and that of other sentenced prisoners. The Supreme Court, by a majority of 4/1, held that this was an “ other status ” within the framework of Article 14. By a different majority of 3/2 the substantive Article 14 case was rejected. The aAppellant’s “ other status ” case in the present appeal rests on a single passage in the leading majority judgment, that of Lady Black JSC, at [81]:

“ Bearing in mind that, although not open-ended, the grounds within Article 14 are to be given a generous meaning, bearing in mind the warning of the ECtHR that there is a need for careful scrutiny of differential early release schemes, less they run counter to the very purpose of Article 5 and considering all of the case law I would conclude that the difference in the treatment of extended determinate sentenced prisoners in relation to early release is a difference within the scope of Article 14, being on the ground of other status .”

[73] As Lady Black noted at [14], within the jurisprudence of the ECtHR on Article 14 cases there is one particular passage which arises with notable frequency. In Kjeldsen and Others v Denmark [1976] 1 EHRR 711 the court stated at [56]:

“ The court first points out that Article 14 prohibits, within the ambit of the rights and freedoms guaranteed, discriminatory treatment having as its basis or reason a personal characteristic (‘status’) by which persons or groups of persons are distinguishable from each other. ”

It is the adjective “ personal ” which has assumed most prominence in later cases.

[74] In R (Clift) v Secretary of State for the Home Department [2007] 1 AC 44 the appellant, unable to lay claim to any of the expressed Article 14 grounds, invoked the “ other status ” of a prisoner sentenced to a determinate term of 15 years or more. The House of Lords rejected this contention. The ECtHR disagreed: see Clift v United Kingdom ( Application no. 7205/07 ). In its judgment it stated that Article 14 –

“ … does not prohibit all differences in treatment but only those differences based on an identifiable, objective or personal characteristic , or ‘status’, by which persons or groups of persons are distinguishable from one another … ”

(At [55])

The court noted at [56] that the words “ other status ” have generally been given a wide meaning. Decisions such as James v United Kingdom [1986] EHRR 123 and Chassagnou v France [1999] 29 EHRR 615 demonstrated that the specified ground of “ property ” could not be considered an innate characteristic or inherently linked to the identity or personality of the individual. The court rejected arguments that the treatment of which the claimant complains must exist independently of the “ other status ” asserted. The court concluded that the “ other status ” advanced by the appellant fell within the embrace of Article 14.

[75] Clift was decided by the House of Lords in 2007. The advent of the Strasbourg Court’s decision occurred in 2010. Between these two events the House found itself seized of the “ other status ” conundrum again, in the case of R (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311 . It was held that the homelessness of the claimant was an “ other status ” within the scheme of Article 14. Lord Neuberger of Abbotsbury, delivering the leading judgment, specifically espoused the “ personal characteristic ” formulation of Kjeldesen – at [41] - simultaneously accepting that the words “ other status ” should adopt a generous meaning, taking into account the context of enforcing anti-discrimination legislation in a democratic state in the 21 st century: see [42]. He added at [45]:

“ Further, while reformulations are dangerous, I consider that the concept of personal characteristic (not surprisingly, like the concept of status) generally requires one to concentrate on what somebody is, rather than what he is doing or what is being done to him. ”

(The qualifying word “ generally ” will be noted.) Finally, Lord Neuberger drew on the decision of the House in Clift .

[76] Lord Walker of Gestingthorpe, in a short judgment, added a notable contribution to this subject at [5]:

“ The other point on which I would comment is the expression "personal characteristics" used by the European Court of Human Rights in Kjeldsen, Busk, Madsen and Pedersen v Denmark (1976) 1 EHRR 711 , and repeated in some later cases. "Personal characteristics" is not a precise expression and to my mind a binary approach to its meaning is unhelpful. "Personal characteristics" are more like a series of concentric circles. The most personal characteristics are those which are innate, largely immutable, and closely connected with an individual's personality: gender, sexual orientation, pigmentation of skin, hair and eyes, congenital disabilities. Nationality, language, religion and politics may be almost innate (depending on a person's family circumstances at birth) or may be acquired (though some religions do not countenance either apostates or converts); but all are regarded as important to the development of an individual's personality (they reflect, it might be said, important values protected by articles 8, 9 and 10 of the Convention). Other acquired characteristics are further out in the concentric circles; they are more concerned with what people do, or with what happens to them, than with who they are; but they may still come within article 14”.

Lord Walker, notably, identified a nexus between the more remote kinds of status and justification :

“ The more peripheral or debatable any suggested personal characteristic is, the less likely it is to come within the most sensitive area where discrimination is particularly difficult to justify. ”

The other four members of the judicial panel expressly agreed with Lord Walker: see [1], [2], [7] and [41].

[77] The status asserted by the appellant is neither an innate characteristic nor something personal to him. It is, rather, something which he has acquired by conduct attributed to him (which, in passing, he eventually admitted). In this way he became a person suspected of the commission of a criminal offence. In Clift the Strasbourg Court stated at [60]:

“ The question whether there is a difference of treatment based on a personal or identifiable characteristic in any given case is a matter to be assessed taking into consideration all of the circumstances of the case and bearing in mind that the aim of the Convention is to guarantee not rights that are theoretical or illusory but rights that are practical and effective. ”

The terminology of this passage is consistent with the elasticity which has characterised the approach to “ other status ” in some of the decided cases. In jurisprudential terms one searches in vain for a bright line test. Arguably the clearest guidance in the decided cases is that contained in the judgment of Lord Walker in RJM ( supra ). Yet even this is not framed in doctrinaire terms as the qualifying words at the end of the passage reproduced above (“ but they may still come within Article 14 ”).

[78] The requirement to have regard to all the circumstances includes, in the present case, the direct connection between the status which the appellant asserts and the offending treatment which occurred. His asserted status was the only reason for this treatment. The same is true of the claimants who made good their “ other status ” claims in Clift , RJM , Stott and other cases in this field. We further take into account that while both the ECtHR and the Supreme Court have had ample opportunity to declare that this sometimes troublesome phrase should be construed by the implication of the word “ comparable ” between “ other ” and “ status ” neither has done so. The single principle which probably emerges most clearly from the fog is that the judicial determination of “ other status ” in a given case should incline towards the expansive and not the restrictive.

[79] As the deliberations in the preceding paragraphs demonstrate the answer to the Article 14 “ other status ” question in this case has not emerged as obvious. Our conclusion, not without reservations, is that the status asserted by the appellant namely, in his short hand, that of pre-charge suspect, ranks as an “ other status ” within the embrace of Article 14 ECHR.

[80] The first two of the sequential and cumulative Article 14 tests having been resolved in the appellant’s favour, we come to the third, namely (in shorthand) that of comparator. Having regard to the treatment of which the appellant complains, is the situation of the members of the group with which he seeks to compare himself analogous? The appellant’s chosen comparator group is, per his latest amended Order 53 pleading, children who have been charged with a criminal offence and are ipso facto the subject of a prosecution - thereby qualifying for the exercise of the discretionary judicial non-publicity prohibition order under Art 22(1) of the 1999 Order. For the purpose of answering the “comparator” question, the relevant characteristics of the appellant are that he was suspected of having committed a criminal offence, arrested by the police, questioned and then released without charge.

[81] The key characteristic of the members of the appellant’s chosen comparator group is that they have been charged with a criminal offence and are the subject of a prosecution and, thereby, engaged in a court process. As such they can lay claim to all of the statutory and common law rights enjoyed by an accused person. These rights are mainly, though not exhaustively, laid out in legislation via the Police and Criminal Evidence (NI) Order 1989 and the Codes of Practice made thereunder. Viewed through the prism of section 6 of the Human Rights Act and Article 6 ECHR the following panoply of rights arises:

· A fair and public hearing.

· Trial within a reasonable time.

· Trial by an independent and impartial tribunal established by law.

· The pronouncement of judgment in public.

· The presumption of innocence.

· To be informed promptly in a language which the accused person understands and in detail of the nature and cause of the accusation against him.

· To have adequate time and facilities for the preparation of his defence.

· To defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.

· To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

· To have the free assistance of an interpreter if he cannot understand or speak the language used in court.

[82] The trigger for this series of rights is that the person concerned be the subject of a “ criminal charge ”. There must be an “ accusation ”. There must further be extant legal proceedings. There must be an adversarial process. At most, the presumption of innocence, specifically protected by Article 6(2), applied to the appellant in his pre-charge situation. However, none of the menu of other specific rights specified in Article 6(1) and Article 6(3) had any meaningful application to him. Having been released from custody unconditionally (subject at most to some modest bail requirement), he was a free person, subject to no compulsion or restriction of any kind. This analysis applies both through the prism of Article 6 ECHR and the other familiar provisions of domestic law.

[83] In determining whether, in an Article 14 challenge, groups are in a relevantly analogous situation it is incumbent upon the court to have regard to the particular nature of the complaint being advanced: see, for example Clift v United Kingdom at [66]. We are mindful that satisfaction of this test does not require the demonstration of exact equivalence. Rather the requirement is the less exacting one of sufficient similarity: AL (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1434 at [25] per Baroness Hale.

[84] In his consideration of this issue Colton J, in his second judgment, drew attention to the distinction between the investigatory stages of a criminal process and the post-charge phase: see [59] - [61]. We consider that he was correct to do so. As our analysis above amply demonstrates, there are multiple distinctions between the situation of a person (merely) suspected of an offence and that of a person charged with (or accused of) an offence. The factors common to these two situations are few. While each falls within the realm of criminal justice, or the criminal process, and each typically involves the police agency, with lawyers usually involved, this in substance is the extent of the comparison. The differences between the two situations, both practical and legal, are material and extensive. The analogy between the two situations is in our view vague and flimsy. We consider that the members of the comparator group chosen by the appellant differ from him so substantially that, within the Article 14 framework, they cannot be considered to be in a relevantly analogous situation.

[85] Having regard to the analysis and conclusion in the immediately foregoing paragraphs, had it been necessary to determine the appellant’s alternative Article 14 case we would have rejected it. If and insofar as we would have been wrong to do so we turn to consider the last of the Article 14 tests, namely justification in shorthand and, more precisely, legitimate aim and proportionality. This requires us to consider in particular the decision of the Supreme Court in R (DA and Others) v Secretary of State for Work and Pensions [2019] UKSC 21 , a path traversed recently in the decision of this court in Re Stach [2020] NICA 4 :

“ [72] DA represents the most comprehensive recent exposition by the Supreme Court of the correct approach to Art 14 ECHR cases, providing welcome clarity on certain important issues. In the context of the instant proceedings its most arresting feature is the unequivocal espousal by the majority of the “manifestly without reasonable foundation” test in the determination of the issue of justification in Art 14 cases. The decision also makes a contribution to the frequently challenging issues of “other status” and comparators. There is much learning in the five judgments delivered.

[73] Lord Wilson, delivering the main judgment of the majority, suggested that where the court, in a Convention context, enquires into the justification of the effect of a measure of economic or social policy and, more specifically, the question of fair balance there are two possible approaches, namely the court answers the question for itself or applies the test of manifestly without reasonable foundation: see [64]. Lord Wilson’s espousal of the second of these approaches was expressed in trenchant terms: see [65]. This is followed by an important passage in [66]:

[86] Mr McGleenan QC accepted realistically that there is some continuing debate about whether the DA test of “ manifestly without reasonable foundation ” extends beyond the realm of socio/economic policy cases. In Langford v Secretary of State for Defence [2019] EWCA Civ 1271 , the central issue was the appellant’s entitlement to benefit under the Armed Forces (Compensation Scheme) Order 2001 following the death in service of her long-standing partner. The Minister’s decision refusing to pay her benefit was based upon her enduring marriage to an estranged husband. The thrust of her case was that the impugned decision discriminated against her unlawfully. The Court of Appeal, applying the “manifestly without reasonable foundation” test allowed her appeal. The single judgment, that of McCombe LJ contains a valuable review of the relevant UKSC jurisprudence at [29] - [56]. The differential treatment of the appellant was found to be manifestly without reasonable foundation. This was, patently so, a case belonging to the broad socio-economic realm.

[87] In a different context, which involved issues of immigration policy, landlord and tenant law, race discrimination and Article 8 ECHR the English Court of Appeal considered obiter that the test is not thus confined: see R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2020] EWCA Civ 542 at [133] - [135].

[88] Most recently, in R (Drexler) v Leicestershire County Court [2020] EWCA Civ 02 the matter under challenge was the Council’s decision to amend its policy regulating home to school transport for pupils with special educational needs, which operated to the detriment of the appellant. The Court of Appeal highlighted that the challenge was to the Council’s amended policy, rather than any specific decision taken pursuant thereto: see [99]. It was contended on behalf of the appellant that the “ manifestly without reasonable foundation ” test is confined to cases belonging to the field of welfare benefits: see [59]. The court rejected this argument, nothing that in its original incarnation this test was devised by the ECtHR in a case involving interference by the State with property rights under Article 1 of Protocol No 1, unconnected with Article 14 equal treatment. The court held that this test is of broad application. It further decided that in the particular context the application of this test and that of the “ conventional proportionality test ” yielded the same outcome: see [75] - [77].

[89] In Re Stach (ante) this court applied the DA test in the context of a measure of economic and social policy. This court further observed at [92] that the question of burden of proof may require more detailed consideration in a suitable future case. The decision of the English Court of Appeal in Drexler draws attention to a dichotomy, or twin track, of proportionality tests namely that of “ manifestly without reasonable foundation ” (on the one hand) and the so-called “ conventional proportionality test ” on the other. Through a series of decisions of the UKSC the contours of the latter test are well settled. In Brewster v Northern Ireland Local Government Officers Superannuation Committee [2017] UKSC 8 Lord Kerr, having noted earlier decisions of the court, quoted from Bank Mellat v HM Treasury (No 2) [2014] AC 700 at [74]:

“ It is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective and (4) whether, balancing the severity of the measures effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter … ”

[90] We would express the following views. There are evident parallels between the correct approach to the inter-related issues of legitimate aim and proportionality (or the single issue of justification, in shorthand) and our consideration of the margin of appreciation issue at the forefront of our views on the appellant’s primary case under Article 8(1) ECHR. The evidential matrix for each of these challenges is the same.

[91] In our consideration of that challenge we have expressed the view that the State agency concerned, DOJ, did not, by the omission under scrutiny, violate the appellant’s Article 8(1) right to respect for his private life as it had carried out a legitimate exercise of balancing this right with the competing right to freedom of expression enjoyed by media organisations under Article 10(1) ECHR in an equation involving two qualified Convention rights of equal importance. We have rehearsed the essential elements of this exercise in [53] - [61] above. They include, but are far from limited to, the fact that the appellant’s case is the only one of its kind in this jurisdiction.

[92] The application of the conventional proportionality template to the present context yields the following analysis. By s 12 (4) of the Human Rights Act the court is enjoined to have “ particular regard” to the Convention right to freedom of expression. The objective in play is that of respecting the right to freedom of expression; there is an indisputably rational nexus between the non-commencement of section 44 of the 1999 Act and this objective; there is no suggestion of the availability of a less intrusive measure which would not have unacceptably compromised achievement of the objective - this being, as Mr McGleenan highlighted, a “bright line” matter; and the admittedly unpleasant and unwelcome time limited intrusion on the appellant’s private life was comfortably outweighed by the strength of the competing interest in play, namely the right to freedom of expression enjoyed by several media agencies.

[93] While we recognise the discretionary area of judgement available to DOJ, which finds expression in its affidavit evidence, we view this as a factor of some, but not undue, weight in the present context. We also bear in mind Lord Walker’s analysis in RJM - [58] supra - that the “ other status ” on which the appellant relies lies outwith “ … the most sensitive area where discrimination is particularly difficult to justify ” viz cases involving immutable personal characteristics.

[94] To summarise, DOJ made a choice in the exercise of its discretion. This occurred in a context of competing qualified Convention rights which the ECtHR has described as of equal stature and importance. There is no indication that in making its choice it left anything material out of account or permitted the intrusion of anything immaterial or extraneous. Nor is there any suggestion of the careless or capricious. The fact that this measured choice had unwelcome and unpleasant, though short lived, consequences for the appellant - and only him - does not warrant the conclusion that a proper and fair balance between the two competing Convention rights was not struck. In DA terms, the balance has to be merely tenable. In non- DA terms, the balance must withstand somewhat more rigorous judicial scrutiny. We consider that the application of both standards of review yields the same result.

[95] Thus on the assumption that our rejection of the appellant’s “comparator” case - [84] above - is erroneous, had it been necessary to do so we would have held that his Article 14 challenge must fail in any event.

Omnibus Conclusion

[96] Given our conclusion in [35] and [38] of this judgment, namely that the appellant has no sustainable case against DOJ under the Human Rights Act we dismiss the appeal. As appears from [40] - [95] we would have dismissed the appeal on its merits in any event, for reasons differing somewhat from those of the trial judge.