Wood v Commissioner of Police for the Metropolis  EWCA Civ 414 (21 May 2009) The England and Wales Court of Appeal has held that the police taking photographs of an individual in a public space (and retaining those photographs) breached that individual's right to privacy under art 8(1) of the European Convention on Human Rights, which states that every person has the right to respect for their private and family life, their home and his correspondence.
Andrew Wood was a media co-ordinator of an organisation known as the Campaign against Arms Trade ('CAAT'). He had never been arrested and had no previous criminal convictions. As a shareholder, he had attended the annual general meeting of a company whose subsidiary organised a trade fair for the arms industry. He asked a question at the meeting and then left once formal business was over.
As he left, Wood was photographed outside by the police. He and other members of CAAT were spoken to by the police. Wood declined to identify himself or answer any questions about the meeting.
The police took the photographs in order to be able to identify possible offenders at the AGM or the trade fair, in case offences had been, or would be, committed. The police kept a database of images for intelligence purposes, although Wood's image was not added to the database.
The police submitted that art 8(1) of the ECHR was not engaged by the mere taking and retention of the photographs, because the circumstances did not elevate the case to the necessary level of seriousness. They submitted that the photographs had been taken in a public street where people could have taken photographs at any time, which meant that there was no expectation that Wood would not be photographed.
However, Wood submitted that art 8(1) was engaged and that the police action was not in accordance with the law for the purposes of art 8(2), because any legal justification the police offered was not sufficiently clear or precise, and the police's actions were disproportionate to their aim.
The Court noted that the bare act of taking a photograph in a public place was not of itself generally capable of engaging art 8(1) of the ECHR. However, taking the photograph had to be considered in the particular context. Here, the police action in taking photographs with no explanation carried with it the implication that the images would be kept and used. This amounted to a sufficient intrusion by the state into the individual's own space and integrity to amount to a prima facie violation of article 8(1) of the ECHR. The appellant enjoyed a reasonable expectation that his privacy would not be invaded in the way it was.
Even though the police's actions were in the pursuit of a legitimate aim (for the prevention of crime and in the interests of public safety), the interference could not be justified under art 8(2). The police's justification for retaining the photographs for more than a few days after the AGM did not bear scrutiny. Once it had become clear that the appellant had not committed any offence at the AGM, there was no reasonable basis for fearing that, if he went to the trade fair, he might commit an offence there. It was for the police to justify as proportionate their interference with Wood's art 8 rights, and they had failed to do so. Therefore it was not necessary to decide whether the interference was in accordance with the law, as it was not proportionate in any event.
Lord Justice Laws dissented on the issue of proportionality. In contrast to the other judges, his Lordship believed that the police's actions were legitimate and proportionate. His Lordship believed it was impossible to categorise what was done as outside the margin of operational discretion the police possess in such circumstances.
Relevance to the Victorian Charter
Wood suggests that the bare act of taking a photograph in a public place will not of itself offend s 13 of the Victorian Charter, which protects individual privacy and reputation. However, where the circumstances are such that taking photographs may amount to a state invasion of an individual's own space and integrity, a lack of proportionality means that those actions are likely to violate s 13 of the Victorian Charter. This is particularly likely to arise where no explanation is offered for the photographs being taken, in circumstances which convey an impression that the images will be kept and later used. As the Court found in Wood, such behaviour can intimidate or cause fear, and where it is not proportionate to a legitimate aim, can amount to an unjustified and arbitrary interference with a person's right to privacy and reputation.
The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2009/414.html.
Benjamin Dendle, Human Rights Law Group, Mallesons Stephen Jaques