R (on application of Bryant & Ors) v The Commissioner of Police of the Metropolis [2011] EWHC 1314 (Admin)

The police may have a duty under Article 8 of the European Convention on Human Rights (the right to privacy) to inform members of the public that their phone calls have been intercepted.

This was only a judicial review permission hearing, which means that the full “substantive” judicial review will still have to be argued at a later date. In short, the case is the latest in the long-running News of the World phone hacking affair (see this post and this one on Inforrm’s Blog for the latest developments).

However, this is certainly one to watch. The defendant in this case is not the News of the World itself but rather the Metropolitan Police, whose conduct of their initial 2005/6 investigation into the affair is being challenged. Chris Bryant MP, Brendan Montague, Brian Paddick and Lord Prescott – all of whom claim to have had their phones hacked by the newspaper – claim that their article 8 rights were violated by the Met’s refusal to investigate whether their phones had been hacked, despite allegedly having information that they may had been. The claim was prompted by a New York Times article in September 2010.

The claimants’ application was originally refused on 3 February by Mr Justice Mitting in the High Court. However, there have been significant developments in the case since it was first brought, including the Director of Public Prosecutions announcing that the investigation would be reopened.

It was argued for the claimants that the police were under a “positive obligation” as a result of article 8 to notify them in 2005/6 that their phones had been hacked.

Article 8 is almost always characterised as a negative obligation; that is, it stops authorities doing things which interfere with private and family life rather than making them positively do things to ensure those protections.

However, it has sometimes been found to impose positive obligations. For example, in Guerra v Italy (1998) 26 EHRR 357, the European Court of Human Rights held that a breach of Article 8 had occurred when local residents were not provided with information about health risks and safety measures taken to mitigate them in respect of a local chemical plant. Had the information been provided, it would have allowed the residents to take steps to protect themselves from health risks.

In a similar vein, the claimants in this case argued that had they known that they were targets or potential targets, they “would have been able to take simple measures to protect their privacy, such as changing their telephone numbers or the pin codes for accessing their telephone message boxes.”

Mr Justice Foskett held that the claimants had at least an arguable case. There are clearly scenarios where the police must come into possession of a great deal of information from a variety of sources that could “indicate that someone’s right to respect for his or her private life is potentially threatened“. And although courts have been slow to impose positive obligations upon the police as a result of human rights law, they have been found, for example, under a positive obligation to take steps to safeguard a person’s physical integrity (Osman v UK (2000) 29 EHRR 245, paragraphs 124-130)

The judge raised a concern that a scenario involving famous individuals particularly those who “intentionally or otherwise, court controversy” tends to “obscure the underlying principle, perhaps the more so when that which underlies the illegal activity is an attempt to find out intimate details about their private lives.” He is likely to have had in mind the ongoing controversies over privacy law in which celebrities have generated almost no sympathy from the public.

However, Mr Justice Foskett did envisage a scenario involving more sympathetic members of the public, where

“local police force comes into possession of information that suggested that elderly residents in a particular community were likely to be the target of a team of confidence tricksters and that the confidence tricksters were hacking into the mobile phones of the relatives of these elderly residents to find out when the residents would be alone in their homes”.

That scenario would “raise an arguable case under Article 8 that the police owed a positive obligation to take steps to alert those who might be targeted if they can be identified“.

This may be an interesting decision. However, in my view it is doubtful that the claimants will succeed in the substantive judicial review. In the past the courts have been reluctant to impose duties upon the police either in negligence or under human rights law. There is a strong argument that the police need to be able to get on with their jobs without fear of being sued at a later date, or having to constantly attend court to defend claims. And article 8 does not generally impose positive duties in any case.

That said, the police are not always immune from being sued. They are still a public authority and therefore subject to human rights claims, for example in relation to false imprisonment under article 5. It may be that this case, despite it being about controversial celebrities rather than little old ladies as the judge might have liked, is the one to buck the trend.

This post originally appeared on the UK Human Rights blog and reproduced with permission.