Unauthorised police surveillance in public place does not violate right to privacy

Kinloch (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2012] UKSC 62 (19 December 2012) Summary

The UK Supreme Court held that an unauthorised police surveillance operation did not breach an individual’s right to respect for their private life under article 8 of the European Convention on Human Rights. This was because the surveillance occurred in public places and the subject of the surveillance had no reasonable expectation of privacy.

Facts

The appellant, Mr Kinloch, was observed by police as part of a planned surveillance operation. He was seen leaving his flat with a bag, entering and leaving other cars and locations and entering a taxi with what appeared to be a heavy bag. The police approached the taxi and detained the appellant. The police carried out various searches and large sums of money were recovered.  However, the police had not sought authorisation for the surveillance operation under the Regulation of Investigatory Powers (Scotland) Act 2000. The 2000 Act provides that surveillance carried out under a valid authorisation is lawful.

The appellant was found guilty of money-laundering offences. The appellant appealed against his conviction and after a somewhat atypical procedural route, a discussion of which is beyond the scope of this case note, the matter came before the UK Supreme Court. Here the appellant argued that:

• the observations by the police, not having been authorised under the 2000 Act, breached the appellant’s right to privacy under article 8; and, consequently
• leading the evidence derived from that surveillance at trial was incompatible with the appellant’s right to a fair trial protected by article 6 of the European Convention on Human Rights.

Decision

The Court noted at the outset that:

• evidence obtained through unauthorised surveillance was not of itself inadmissible at common law (Lawrie v Muir 1950 JC 19); and
• even if the evidence was obtained in a manner which breached article 8, it did not automatically follow that using the evidence at trial would breach the appellant's article 6 rights (Khan v United Kingdom (2000) 31 EHRR 1016).

Nevertheless, because the appellant argued it was the use of evidence acquired in breach of article 8 which caused the breach of his right to a fair trial under article 6, the starting point was to consider whether there had in fact been a breach of article 8.

The Court noted that the situation whereby police had recorded movements of a person suspected of criminal activity as part of their investigations had not yet been considered by the European Court of Human Rights. Nevertheless, the ECHR regards "private life" as a broad term that has no exhaustive definition. As such, the question of whether a person's article 8 rights have been interfered with will always depend upon the particular circumstances in which the interference is said to have taken place.

The Court acknowledged that in the present case the alleged interference occurred while the appellant was in various public spaces. It found (at [19]) that although there is a "zone" of interactions in a public context which may fall within the scope of private life, without more, measures effected in a public place outside private premises will not interfere with one's rights under article 8.

The Court held that the answer in the present case was "to be found by considering whether the appellant had a reasonable expectation of privacy while he was in public view" (at [21]). The Court stated this was the unarticulated basis of the decision in Gilchrist v HM Advocate 2005 (1) JC 34, which was the current leading authority in the area. As such, the Court held Gilchrist was rightly decided.

The Court found that the appellant "engaged in his activities in places where he was open to public view by neighbours, by persons in the street or by anyone else who happened to be watching" (at [21]). Indeed, the appellant took the risk of being seen and of his movements being recorded. It was held that the appellant had no reasonable expectation of privacy and any criminal aspect of his public actions were not a part of his private life that he was entitled to keep private.

In relation to the first issue in the appeal, the Court found that police's actions had not interfered with the appellant’s article 8 right to respect for his private life. Consequently, in relation to the second issue in the appeal, the Court found there had been no breach of article 6. This is because the only ground for arguing a breach of article 6 was that there had been a breach of article 8.

Commentary

Section 13 of the Victorian Charter on Human Rights establishes a right to privacy, which states that “a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with”. The Information Privacy Act 2000 (Vic) also contains privacy protections. The Information Privacy Act 2000 (Vic) protects information privacy by requiring specified organisations to handle personal information in compliance with the ten Information Privacy Principles.

It is interesting to compare Kinloch to the recent case of Caripis v Victoria Police (Health and Privacy) [2012] VCAT 1472 (27 September 2012) which addressed how material obtained through police surveillance is to be treated in light of Victorian privacy laws. In both Kinloch and Caripis a critical question for the Court was whether the surveilled party had a reasonable expectation of privacy. In Caripis the Victorian Civil and Administrative Tribunal held that the police’s retention of photographs and video footage taken during a protest did not infringe a protestor’s right to privacy. In determining whether the protestor’s right to privacy was violated the Tribunal considered whether the protester had a reasonable expectation of privacy, as well as the seriousness of the intrusion. Relevant to the Tribunal's decision was the fact that the protestor took part in the public protest knowing that protest organisers intended to take and publish images from the event, that multiple photographs of the event were taken and uploaded on social media and that the material retained by the police contained limited personal information that would allow the protestor to be identified.

This decision is available online at: http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2011_0251_Judgment.pdf

Kate Siopis is a lawyer and Jessica Ham a Senior Associate at Allens in Perth.