MEDIA/ENTERTAINMENT Human rights - celebrities - children - photographs
David Murray (by his litigation friends (1) Neil Murray (2) Joanne Murray) v Big Pictures (UK) Ltd: CA (Civ Div) (Sir Anthony Clarke, Master of the Rolls, Lords Justice Laws, Thomas): 7 May 2008

The appellant (M), acting through his parents, appealed against the striking out ([2007] EWHC 1908 (Ch), [2007] ECDR 20) of his claim against the respondent photographic agency (B) for breach of his right to respect for his privacy under article 8 of the European Convention on Human Rights.



M, the infant son of a well-known author, had been photographed by B in the street with his parents but without their knowledge or consent. The photograph had then been published in a national magazine. The judge struck out M's claim on the basis that there was an area of innocuous conduct in a public place that did not raise a reasonable expectation of privacy, and that, even if the decision in Von Hannover v Germany (59320/00) [2004] EMLR 21 ECHR had extended the scope of protection into areas that conflicted with the principles and decision in Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457, he was bound to follow Campbell in preference.



The issue was whether the judge was right so to have concluded.



Held: (1) In deciding whether there had been an infringement of article 8, the first question to be asked was whether there was a reasonable expectation of privacy. That was an objective question and took account of all the circumstances of the case, including the attributes of the claimant, the nature of the activity in which he was engaged, the place at which it happened, the nature and purpose of the intrusion, the absence of consent, the effect on the claimant and the circumstances in which, and the purposes for which, the information reached the hands of the publisher.



If the answer to that was yes, then the second question was how the balance should be struck as between the claimant's right to privacy and the publisher's right to publish. At that stage, the question of whether the publication of those private facts would be considered highly offensive to an objective, reasonable person might be relevant, Campbell followed and Von Hannover considered.



(2) It was at least arguable that M had a reasonable expectation of privacy. The fact that he was a child had greater significance than had been attributed to it by the judge. Although the Press Complaints Commission had ruled that the mere publication of a child's image could not breach its Editors Code of Practice when taken in a public place and unaccompanied by private details that might embarrass the child, everything depended on the circumstances.



It was at least arguable that a child of parents who were not in the public eye could reasonably expect that the press would not target him and publish photographs of him, and the same was true of M, especially since the photograph would not have been taken or published had he not been the son of a well-known author.



In reaching his decision, the judge had relied on the decision in Hosking v Runting [2005] 1 NZLR 1 CA (NZ) for a significant

part of his reasoning. However, that decision was not a sufficient reason to hold that M could not show a reasonable expectation of privacy at trial.



(3) There may well be circumstances, even after Hannover, in which there would be no reasonable expectation of privacy. However, it all depended on the circumstances of the case. It was not possible to draw a distinction between activities that were part of a person's private recreation time and publication of which would be intrusive, and other activities such as a walk down the street or a trip to the grocer's to buy milk. Moreover, it was not necessarily the case that such routine activities should not attract any reasonable expectation of privacy; all depended on the circumstances.



Subject to the facts of the case, the law should protect children from intrusive media attention, at any rate to the extent of holding that a child had a reasonable expectation that he would not be targeted in order to obtain photographs in a public place for publication, where the taking of such photographs would be objected to on his behalf.



The judge had therefore been wrong to strike out M's claim. M had an arguable case and his parents were to be permitted to take the claim to trial on his behalf.



Appeal allowed.



Richard Spearman QC, Godwin Busuttil (instructed by Schillings) for the appellant; Mark Warby QC, Jonathan Barnes (instructed by Solomon Taylor & Shaw) for the respondent.





FAMILY

Human rights - local government - public law outline - capacity - care proceedings RP v (1) Nottingham City Council (2) Official Solicitor: CA (Civ Div) (Lords Justice Thorpe, Wall): 8 May 2008
 The appellant (P) appealed against care and placement orders that had been made in respect of her two-year-old daughter.



A jointly instructed clinical psychologist had commented that P had a significant learning disability, that she had a limited understanding of the proceedings and of her solicitor's role within them, and that it would be appropriate for the second respondent Official Solicitor to become involved. The Official Solicitor did become involved, did not oppose the making of a care order and accepted on P's behalf that she was not capable of giving consent to the making of a placement order, whereupon her consent was dispensed with and the order was made.



On appeal, the first respondent local authority sought guidance on the steps to be taken in care proceedings where there was an issue as to a parent's capacity.



Held: (1) The making of care and placement orders was inevitable. P had asserted, among other things, that her rights under article 6 of the European Convention on Human Rights had been breached. No such breach had been made out.



(2) One of P's McKenzie friends, a member of Parliament, had made ill-informed and tendentious criticisms of the family justice system. While the system was not perfect, this case showed that it had operated properly.



(3) The recently issued Public Law Outline Guide to Case Management in Public Law Proceedings indicated strongly not only that the question of adult capacity to give instructions needed to be addressed at the earliest opportunity, but that the local authority would be expected, in the pre-proceedings phase of the case, to be on the alert for the possibility that a parent in particular might be a protected person and might not have the capacity to give instructions in the proceedings. At that point, in many cases, the local authority would be working with the child's parents in an attempt to keep the family together. The practical answer in those circumstances was likely to be that the parent in question should be referred to the local authority's adult learning disability team (or its equivalent) for help and advice. If that team thought that further investigations were required, it could undertake them. It should, moreover, have the necessary contacts and resources to commission a report so that, as soon as the pre-proceedings letter was written, and proceedings were issued, the parent's legal advisers could be in a position, with public funding, to address the question of a litigation friend.



It was important that judgements on capacity were not made by the social workers from the child protection team. Once proceedings were issued, the question of the parent's representation became, and remained, a matter for the parent's legal advisers. The question of ensuring that, during proceedings, a parent was properly informed and understood the role of the litigation friend, in particular the role of the Official Solicitor, had to be a matter for that parent's legal team and for the Official Solicitor himself.



(4) Annexed to the judgment was an important statement of the Official Solicitor commenting on his position both generally and in relation to this case.



Appeal dismissed.



In person with McKenzie friends for the appellant; Shona Rogers (instructed by the in-house solicitor) for the first respondent; Peter Jackson QC, Robin Barda (instructed by the in-house solicitor) for the second respondent.





PERSONAL INJURY Damages - causation - death-in-service benefits - deductions - measure of damages Melanie Jane Arnup v M W White Ltd: CA (Civ Div) (Lords Justice Ward, Dyson, Smith): 7 May 2008
 The appellant (J), whose husband had been killed in the course of his employment with the respondent (M), appealed against a decision ([2007] EWHC 601 (QB), [2007] PIQR Q6) that a payment that she had received from M under a death-in-service benefit scheme should be deducted from her claim for damages. M cross-appealed against a decision that a payment that J had received under an employee benefit trust covering her late husband should not be deducted.



The judge held that section 4 of the Fatal Accidents Act 1976 did not require either payment to be disregarded in the assessment of damages, as the payments had not accrued to J as a result of her husband's death but had been paid as a result of independent decisions of M and the trustees of the employee benefit trust.



The judge then sought to apply the common-law exceptions to deductibility in personal injury cases. He concluded that the payment received under the death-in-service benefit scheme did not fall within the 'benevolence exception' and had therefore to be deducted from J's loss of dependency. He found, however, that the payment received under the employee benefit trust did fall within that exception and had, therefore, to be disregarded.



The issue was whether the judge had been correct in his conclusions.



Held: (1) The judge had not been correct in his conclusions. In the fourth supplement to the 17th edition of his book 'McGregor on Damages', Harvey McGregor QC had been right to state that, once the judge had decided that the payments did not result from the death, so that section 4 did not apply, he should then have adopted the common-law position that benefits which did not result from the death were equally to be disregarded because of that very lack of relationship with the death. If, therefore, the judge had been right about causation, he could not hold that either of the payments fell to be deducted from the loss of dependency. If they were not received as a result of the death, they were completely irrelevant to the whole question of assessment of damage. For that reason alone, the appeal had to succeed and the cross-appeal had to fail.



In any event, all benefits which came to J as a result of the death were to be disregarded. The expression 'or otherwise as a result of his death' in section 4 was wide enough to cover benefits in kind which accrued as a result of the death and any other kind of benefit which might not yet have been identified. It was quite clear that Parliament's intention in amending the 1976 act was to continue and complete the trend towards disregarding receipts so as to ensure that all benefits coming to the dependant as a result of the death were to be left out of account.



(2) (Obiter) The issue of causation was no longer a matter of any great importance in cases of this kind. Now that the statutory disregard provisions covered all benefits which accrued as a result of the death, it no longer mattered whether a benefit accrued as a result of the death; it could not be deducted in any event.



Appeal allowed, cross-appeal dismissed.



Robert Weir (instructed by Kester Cunningham John) for the appellant; Christopher Purchas QC (instructed by Fox Hartley) for the respondent.





CRIMINAL EVIDENCE

Burglary - ear prints - expert evidence - identification

R v Mark Kempster: CA (Crim Div) (Lord Justice Latham, Mr Justice Swift, Mr Justice Foskett): 7 May 2008
 The appellant (K) appealed via a reference from the Criminal Cases Review Commission against a conviction for burglary.



K had been arrested on suspicion of the burglary of an elderly woman's residence. The police had recovered an ear print from the fixed window pane to the side of the window that had been forced in order to gain entry to the property. Expert evidence at trial was that no two ears left the same mark and that the ear print found on the window pane matched ear prints subsequently taken from K.



K was convicted and sentenced to ten years' imprisonment. His appeal was dismissed.



A further expert report concluded subsequently that the prints used in K's case were not of sufficient quality to conclude safely that there was a match and that the gross anatomical features of the ear visible at the crime scene did not accord with the reference prints provided by K. K referred the matter to the Criminal Cases Review Commission, which concluded that there was a real possibility that the conviction might be overturned.



Held: The experts agreed that ear prints presented a different and more difficult problem than fingerprints, in that ears were cartilaginous structures that were flexible, and deformed when subjected to pressure, which distorted the shape of the ear and the mark that it would leave. It was clear that ear print comparison was capable of providing information that could identify a person who had left an ear print on a surface, but could only be done with certainty where the minutiae of the ear structure could be identified and matched.



Where the print was of such quality that only gross detail was visible and could be compared, there was less confidence in such a match due to the flexibility of the ear and the uncertainty of the pressure which would have been applied at the relevant time. Therefore, gross features were capable of providing a reliable match, but only where they truly provided a precise match. However, although a comparison of the print on the window pane with that taken from K was similar in shape and size, it did not provide a precise match. The extent of the mismatch led to the conclusion that it could not be relied on by itself as justifying a guilty verdict.



Appeal allowed.



Michael Mansfield QC, Alan Masters for the appellant; Paul Garlick QC for the Crown.