Judgment Approved by the court for handing down.
Ali & Aslam v Channel 5 Broadcasting Ltd
35.
Although the complaints of the Appellants and Cross-Appellants are specific, in such
a case as this the issues and findings interlock. The judge’s conclusions rest to a
considerable degree on his overall assessment of the case.
36.
The judge assessed the material under various heads, beginning with “the sanctity of
the home”. He concluded firstly that the property concerned remained the Claimant’s
home until the writ was executed at 9:39 and for the few minutes thereafter (until
9:45), given that their presence in the property for that short period “was tolerated”:
see paragraphs 144/145. The judge noted the point of law established in McDonald v
McDonald [2016] UKSC 28, [2017] AC 273, that where a landlord is seeking an
order for possession against a private sector tenant, Article 8 does not require the
court to consider the proportionality of such an order. But he rejected the Defendant’s
submission that this was in any way relevant to the present case.
37.
In paragraphs 51/54 of his judgment, Arnold J set out the relevant professional
standards for HCEOs and HCEAs and noted Mr Bohill’s acceptance in the light of
those standards that it would be wrong and in breach of confidence for him to
describe the contents or events inside a home. Those matters went to underpin the
reasonable expectation of privacy. The judge considered that:
“Channel 5’s main answer to this point is to rely upon the open
justice principle.”
He considered that principle later in his judgment (paragraph 147).
38.
The Claimants contended that the programme “showed them at their lowest ebb,
being evicted without prior notice, in a state of shock and very distressed”, causing a
loss of dignity, a point the judge noted to be relevant to Lord Hoffmann’s statement in
Campbell at paragraph 51, that a claim for misuse of private information bears on
“human autonomy and dignity”. The judge noted that “Channel 5 did not dispute that,
absent other factors considered below, the programme would have caused the
Claimants to suffer some loss of dignity”: paragraph 148. The judge went on to
reject the Claimants’ submission that the fact Mr Ali was wearing bedclothes during
some of the filming was relevant, since all that could be seen was that he was wearing
a “t-shirt or vest” (paragraph 149).
39.
Applying the dicta of Lord Phillips of Worth Matravers MR in Douglas v Hello Ltd
(No. 3) [2005] EWCA Civ 595 [2006] QB 125, to the effect that photographic images
could be “particularly intrusive”, the judge accepted that this was relevant to the
present case (paragraphs 150/151).
40.
The judge considered the fact that a proportion of the events complained of took place
not in the home but in the street outside the home. The Defendant contended the
Claimants had no reasonable expectation of privacy in respect of events taking place
in a public street. Relying upon the dictum of Lord Dyson in Weller v Associated
Newspapers Ltd [2015] EWCA Civ 1176, [2016] 1 WLR 1541, to the effect that “a
person’s privacy …. may be infringed even in relation to things done in a public
street”, the judge rejected the Defendant’s broad submission, indicating that “a more
fact-sensitive assessment is called for”: paragraph 158.
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