What does it take to establish a breach of your Right to Private and Family Life as protected by the Human Rights Act?
This was the question at the heart of a case of mine which concluded at Liverpool County Court earlier this week against Merseyside Police and which the Police Force chose to use as a test case.
Article 8 of European Convention on Human Rights provides:
“Right to respect for private and family life
- Everyone has the right to respect for his private and family life, his home and his home and his correspondence.
- 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”.
My clients, husband and wife, Richard and Michelle Hall live in St Helens, Merseyside with their children. (Mr and Mrs Hall have kindly given me permission to use their details.)
On 4 December 2015, Mr Hall was arrested and detained by the police.
During the course of Mr Hall’s detention in police custody, Merseyside Police Officers, including PC Allen carried out a search of Mr Hall’s home address.
Upon Mr Hall’s release later that day, he viewed his home CCTV and was concerned about what he saw, believing that the search was conducted in a disrespectful and unprofessional way and that during the search PC Allen had taken a packet of crisps from his home. (Watch the CCTV footage on the Liverpool Echo’s website.)
A few days later, Mr Hall made a Police complaint against PC Allen about the conduct of the search (“the first complaint”).
The complaint was investigated by Merseyside Police’s Professional Standards Department (“PSD”).
During the course of the investigation into the first complaint, PC Allen was placed on restricted duties. PC Allen was also interviewed.
On 11 February 2016, PC Allen was informed that he was no longer being investigated in relation to the first complaint and that the restriction on his duties had been removed. One of the findings was that whilst PC Allen had been eating crisps during the search, he had not stolen them from the Halls.
At or around 07:30 on 12 February 2016, Mr Hall left the premises to take his children to school.
Shortly after 08:00, Mrs Hall, who was upstairs at the time, noticed a police vehicle parked outside.
The driver of the police vehicle parked outside of the premises was PC Allen. He was with a fellow officer, PC J.
Mrs Hall got dressed, went downstairs and went outside.
Upon closer inspection of the police vehicle, Mrs Hall was surprised, alarmed and upset to see PC Allen in the van (whom she recognised from the CCTV footage of the search on the 4 December).
Mrs Hall tried to attract the attention of the officers in an attempt to establish the reason for their presence.
Neither officer acknowledged Mrs Hall.
Mrs Hall returned inside and called her husband and informed him of PC Allen’s presence outside. She felt intimidated and was extremely upset.
PC Allen and PC J remained outside of the premises for approximately 13 minutes.
By the time Mr Hall returned to the premises, PC Allen and PC J had driven away.
On 13 February 2016, Mr Hall made a further police complaint and alleged that PC Allen’s conduct on 12 February 2016 amounted to harassment (the “second complaint”).
Mr Hall’s second complaint was again investigated by Merseyside Police PSD.
On or around 22 February 2016, the investigation report into Mr Hall’s first complaint was sent to him and he was informed that his first complaint had not been upheld and/or that there was no case to answer, except for Mr Hall’s allegation that PC Allen had failed to leave a copy of the search record at the premises, prior to leaving, which was upheld. PC Allen was deemed to
“need no more than words of advice regarding the importance of documenting all items any damage caused and the correct process regarding the completion of the PCE 10 search record”.
On 10 March 2016, PC J provided an account to Merseyside Police PSD, in which she stated that PC Allen had made the decision to park up at the premises on 12 February 2016. PC J further stated that she did not personally have any enquiries to conduct in the area that day.
On 12 March 2016, PC Allen provided an account to the PSD in which he claimed to have gone to the area to engage in high visibility patrol on 12 February 2016. PC Allen further stated that he had parked the police vehicle outside the premises as he had “finished late the night before and thought that an opportune moment to complete [his] notebook”. PC Allen confirmed in that account that he was aware that Mr Hall lived at the premises, as he had performed a search of the premises previously.
On 21 June 2016, the investigation report into Mr Hall’s second complaint was sent to him and Mr Hall was informed that his complaint against PC Allen of oppressive conduct/harassment had been upheld and that PC Allen was deemed to require management action. In particular, it was found that PC Allen and PC J had been tasked to respond to another job whilst they were parked outside the Hall’s home but had failed to do it immediately. The following was also stated in the investigation report:
“…It is…reasonable to believe that the only logical explanation that Constable Allen has parked outside the Hall’s home address is to either cause annoyance, in response to the complaint made against him previously by Mr Hall, or because he himself was annoyed because of the serious allegations which had been made against him and, the more serious ones had not been proven…”
Was Article 8 engaged?
In order for there to be a Breach of the Right to Privacy, a minimum threshold has to be met. The Human Rights Act “is not a panacea for every ill”, per Sedley L.J. in A. v. Essex CC (2008 ) EWCA Civ 364.
What is the basic minimum for Article 8 to be breached? The phrase used is “a minimum level of seriousness”.
In R (Gillian) v Commissioner of Police of the Metropolis  2 AC 307, Lord Bingham said,
“It is true that ‘private life’ has been generously construed to embrace wide rights to personal autonomy. But it is clear Convention jurisprudence that intrusions must reach a certain level of seriousness to engage in operation of the Convention, which is, after all, concerned with human rights and fundamental freedoms……”
Here, the issue was whether Mr and Mrs Halls’ rights had been interfered with.
The definition of interference is “the act or an instance of hindering, obstructing or impeding”.
Merseyside Police argued that Article 8 was not engaged because there was no evidence of invasion or intrusion into the Hall’s family life; PC Allen had parked up on a public road outside the Hall’s home but had not blocked their driveway and prevented them from coming or going; at no time did PC Allen or PC J go into or approach the Hall’s home, nor was either Mr and Mrs Hall summoned out of their home; and yet further, at no time was any word or gesture made towards either Mr or Mrs Hall by PC Allen or PC J.
Notwithstanding those valid points, PC Allen had deliberately parked up outside the Hall’s home address a day after being told that Mr Hall’s complaint had been resolved and that he was back on full duty.
The situation was analogous to Police surveillance which is clearly an interference in a persons’ private and family life, though here we argued PC Allen’s intention was to be overt rather than covert to convey the message “I’m not going to forgive and forget.”
So, if interference could be established, could PC Allen prove that he was outside the premises for a genuine policing purpose and not for any improper purpose or motive?
In response to Mr Hall’s first complaint, PC Allen had asserted that he had a legitimate reason for parking up outside the Hall’s home address; that he was in the vicinity carrying out high visibility patrol. He claimed that he was aware of and had had experience of people living in the area defrosting and demisting their cars on driveways by leaving their cars unattended with their engine running and that such vehicles were “easy pickings” for opportunistic car thieves. As he drove around he remembered that he had not completed his pocket note book from the previous day. In the circumstances, he decided to pull up, “electing a safe place …… to stop”. By sheer coincidence, it was immediately outside o the Hall’s home address. Having so parked up, and having completed his pocket notebook entry, he observed a man delivering papers. As he did so, the man left his engine running and so PC Allen advised him he was committing an offence. PC Allen obtained the man’s personal details and carried out a radio check to ensure he was insured. He was and so PC Allen gave him some words of advice and allowed him to continue. Thereafter, the officers were passed a job over the radio; to obtain a witness statement. The circumstances were complicated and it would be necessary to refer to the Police database . PC J attempted to access the database via her laptop but couldn’t get a connection and so the officers returned to the Police Station.
So, PC Allen’s policing purpose for being in the vicinity was because of concerns about opportunistic car thieves. At that morning’s briefing, there had been no tasking for high visibility patrol. Further, according to PC Allen, he did not share his concerns with his colleague PC J. Yet further enquiries with the Police Intelligence System revealed one theft of a motor vehicle in the area. There was no simply no evidence that such thefts was an issue or high priority.
In the circumstances, it was clear to me that it was PC Allen’s decision to patrol the area that morning and there was no evidence to support the reason he gave for going there and therefore no legitimate reason for his presence.
Her Honour Judge Sykes agreed and in Court ruled as follows:
“In my judgment, if powers of police are used arbitrarily, without legitimate cause, that engages Article 8. The Claimants’ submit that this case is analogous to covert surveillance. I agree that this is an appropriate analogy. A duty of respect is imposed under Article 8, it calls upon the Police not to carry out acts to intimidate or cause anxiety. I am satisfied that Article 8 is engaged. I am also satisfied that the Defendant has failed to show that the interference was in accordance with law and in pursuance of legitimate and proportionate aim”.
Merseyside Police have, in response, indicated that they may seek leave to appeal the Court’s decision.
I have no concerns if they do; I am very confident that Her Honour Judge Skyes’ findings would be upheld by the Court of Appeal, and the authority in that Higher Court would be an even stronger guarantee of peoples’ rights in the future.