Guest post: Identity Crisis?

Guest post by @Super__Cyan

Who said it only happened to super heroes?

Though not quite as enthralling as its DC counterpart, this post takes a look at the very recent High Court decision and argues that Article 8 of the European Convention on Human Rights could have helped too.

The decision of the High Court in Mengesha v Commissioner of Police of the Metropolis is a welcomed reminder that public authorities (such as the police) aren’t allowed to do what they aren’t legally prescribed to do (hence it being unlawful). Basically, the claimant, as a legal observer, attended a public sector trade union march. There was some trouble which prompted the Chief Superintendent to authorise police containment because of an apprehended further breach of the peace, the legal basis for containment was not the issue at hand.

The crux of the legal dispute arose because the Chief Superintendent decided that those who were being released from the containment would be filmed and asked for their details. The claimant enquired about what authority the police acted upon in requesting such information, but this was not answered until after filming and details were disclosed. So the important question was whether disclosure of details was a voluntary condition for being released from containment, which the Commissioner accepted such an instance would be unlawful. But the Commissioner argued that the information disclosed was done on a voluntary basis, thus the identity crisis continued.

After looking at all the relevant evidence, Moses LJ, using a staff instead of his gavel concluded to ‘let my people go’ – ok, not quite, but that would have been awesome had the judgment had been on the containment itself. What Moses LJ actually believed was that the evidence was ‘overwhelming’ as those leaving the containment were required to give their details and to be filmed before they were allowed to be released, which was also conceded by the Chief Superintendent. Moses LJ maintained that ‘[i]t was not lawful for the police to maintain the containment for the purposes of obtaining identification, whether by questioning or by filming.’ Importantly Moses LJ in finding against defendant uttered that the absence of any statutory power to obtain identification in the circumstances in this case establishes conclusively the unlawfulness of the police action in requiring the claimant to be filmed and give her name and address and date of birth before she was released from containment. This therefore seemed to be a case of simple ultra vires (acting beyond ones powers) (see Attorney General v Fulham Corporation [1921] 1 Ch 440). So to sum that up, the law does not allow police officers to contain and then only release those contained on the basis that they will give out details.

Here is where Article 8 of the European Convention on Human Rights (ECHR) comes into play. The wording of Article 8 is as follows:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

So everyone has a right to privacy, you know, mind your own business and all? This can be compromised in certain circumstances, which is why it is regarded as a qualified right. It is accepted that Article 8 arguments were not used for this particular issue but instead used for the filming and retention of said information. The interesting question is, would an Article 8 argument also have succeeded in regarding to the involuntary disclosure of information? For any violation of Article 8, first it has to be engaged or interfered with. Private life which is not susceptible to exhaustive definition which includes an individual’s name and other means of personal identification (the claimant’s address and date of birth) therefore falling within the ambit of private and family life for the purposes of Article 8 (see S and Marper v United Kingdom 30562/04 [2008] ECHR 1581)

The Grand Chamber in S and Marper noted that in determining whether the personal information retained by the authorities involves any of the private-life aspects mentioned above, the Court will have due regard to the specific context in which the information at issue has been recorded. This therefore would suggest importance is attached to the way in which information pertaining to private life has been obtained. This is precisely so as the European Court of Human Rights (ECtHR) in Friedl v Austria (1996) 21 E.H.R.R. 83, at para 52 noted that:

“The questioning of the applicant on 19 February 1988 in order to establish his identity, and the recording of these personal data, though taking place in the course of the above public incident, was closely related to his private affairs and constituted, therefore, an interference with the right guaranteed by Article 8(1) of the Convention.”

As said earlier, Article 8 is qualified and therefore interference with that right can be justified if it meets the requirements of Article 8(2), the qualified limb. This is determined by going through a series of (let us call them) legal tests, firstly is whether interference is in accordance with the law. This requires there to be some basis in domestic law for the power exercised. The High Court already accepted that personal details were unlawfully obtained this would be sufficient to not satisfy the in accordance with the law requirement and would ultimately lead to a violation. What this seems to suggest is that had the claimant had relied upon Article 8 in this context, it would have been violated.

But it does at least in the circumstances of this case show that the common law can be just as useful as the Convention, because pursing the argument either way would have resulted in the conduct being unlawful.