It has been apparent since the decision of the European Court of Human Rights in the Princess Caroline case (Von Hannover v. Germany [2004] E.M.L.R. 21) that taking photographs of another in a public place might in appropriate circumstances violate the right to respect for private life under Article 8 ECHR. Much of the recent jurisprudence concerns photography taken by the privately owned media. There has been less litigation where the intrusion has been effected by or at the behest of a public agency of the state such as the police. Police forces routinely make extensive photographic records of public demonstrations for the purposes of identification and subsequent prosecution. This lends interest to the decision of the Administrative Court in R. (Wood) v. MPC [2008] EWHC 1105 (Admin) in which the claimant asserted that he had been photographed at the behest of the police as he left an Annual General Meeting of a company in which he had recently acquired a single share. There was no suggestion that he had committed a criminal offence, either on that or any previous occasion. He fell under suspicion because he was a media co-ordinator for an organisation (Campaign Against Arms Trade (“CATT”)). At least one former member of CATT was also present in the meeting; she had convictions arising from previous protest activity and was ejected from the meeting itself “apparently after chanting slogans”. The photographs in contention had been taken only when Wood began speaking to the woman who had been ejected. He sought declarations to the effect that the conduct of the police amounted to a violation of his private life rights under Article 8 of the ECHR and to various rights under other articles. He also sought an order requiring destruction of any photographs still in police possession.

The police countered that they had reasonable grounds to suspect that criminal offences might be committed in connection with the meeting and that it was necessary to photograph Wood for identification purposes should their fears be realised. The defendants also asserted that, although the images were retained as part of a dossier on CAAT members, they were kept under strict conditions in compliance with the Data Protection Act 1998 (although no precise regulatory instrument is identified as regulating the practices in the Law Report). Police practices in the collection, retention and use of other modes of identification (fingerprints and DNA samples) had been the subject of relatively recent unsuccessful challenge before the House of Lords in R. (on the application of S) v. Chief Constable of South Yorkshire (S and Marper) [2004] UKHL 39, [2004] 1 W.L.R. 2196, and thence to Europe, but (as was noted by the judge) at the time of the hearing in Wood a decision of the Grand Chamber of the ECHR in Marper was still awaited.

The judge held that none of the causes of action was made out. He took the view that the cases by which he was bound (including Marper) decided that the taking of a photograph in public without the consent of the subject was not ipso facto a cause for complaint – much depended upon the facts in an area of litigation that is particularly fact sensitive. If he was wrong about that, the interference in this case was relatively trivial. Nor could the subsequent retention and use of the photographs be challenged in this case, since the exercise of that power was subject to public law control and the Data Protection Act. The common law power relied upon by the defendant was sufficient to satisfy the requirements of Article 8(2) that any intrusion must be “in accordance with the law” and proportionate for the purposes of that provision.

In support of this last proposition, the learned judge cited and relied upon the broad statement of Lord Parker C.J. in Rice v. Connolly [1966] 2 Q.B. 414 that “ … it is part of the obligations and duties of a police constable to take all steps which appear to him to be necessary … for preventing crime”. This seems a rather exiguous basis from which to infer the existence of a common law power to take photographs of another without consent. Indeed, the amendment of the Police and Criminal Evidence Act 1984 in 2001 creating a statutory power to take photographs of suspects detained at a police station either with consent or without it “if the appropriate consent is withheld or it is not practicable to obtain it” rather suggests that no clear common law power exists.

The second prop for the conclusion that the photographs were taken and used in accordance with the law was to be found, ruled the judge, in the decision of the Court of Appeal of Northern Ireland and then the ECHR in Murray v. United Kingdom (1995) 19 E.H.R.R. 193 whose effect was said to be that “a finding that the conduct in issue was not unlawful of itself provided a sufficient basis on its own for holding that that conduct was ‘in accordance with the law’”. Counsel for the claimant was unable to persuade that in the light of the enactment of the Human Rights Act 1998, this was no longer a satisfactory basis on which to proceed. As the judge reminded himself, at [28], he was obliged to follow the precedents of the higher courts of this country, even if there is conflict between those decisions and ECHR jurisprudence.

Marper in the House of Lords was one such decision, typifying what the judge described as a “very robust approach” to alleged interferences with Article 8, including the taking and subsequent retention of photographs in public places. The force of the law there articulated has been seriously undermined by the decision of the ECHR (S and Marper v. United Kingdom (App Nos 30562/04 and 30566/04, 4 December 2008)) that British practices are not in compliance with Article 8, particularly as to what will now satisfy the “in accordance with the law” requirement, at [95]–[99]. It is no criticism of the judge to say that the United Kingdom law and practice in this area will have to continue to develop apace to align themselves with this very different perspective.