Neutral Citation No:  NICA 70
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
2017 No. 11928
DEENY LJ (delivering the judgment of the court)
"The Summons was grounded on an affidavit by the Plaintiff dated 3 February 2017, the salient paragraphs of which for the purpose of this judgment at this stage, are as follows:
'4. I applied for the BBC1 musical talent television show entitled 'Let it Shine' by an online application in or around September 2016. …
5. There was nothing in the form asking contestants about their family background. As a result of my application I had to attend an audition at the Europa Hotel in Belfast. At the Europa Hotel there was a vocal coach employed by "Let it Shine" and I auditioned before him.
6. After the September 2016 audition, I was notified by email that I had been selected to attend the next stage to sing in front of the producers of the show at Media City London. I auditioned three songs there before a panel. I was asked by one of the producers was there anything in relation to my family that would result in publicity. I told the show that my Uncle Declan had been murdered in Loughgall. She said that this was very sad and that was the end of the matter. However, she did take a note of this. I did not see how any previous criminal convictions my father had were in any way relevant to my participation in the show and it had not occurred to me to refer to them in response to this informal query raised by the show's producers. I also view the fact that my father has criminal convictions is a private and confidential matter as it relates to me personally.
7. It was shortly after this audition I received a call from the producer, Claire, who informed me that I had been picked to attend the television audition due to take place in Manchester in October 2016 before a studio audience and the celebrity judges' panel …
8. Getting through to the televised audition was the highlight of my amateur singing career. I have invested a huge amount of time and effort and I was extremely proud that I had made it through to this stage. I had hoped the televised audition would help me grow my musical career whether or not I made it through the next round of the competition.
9. The show was pre-recorded and was first broadcast on BBC1 on Saturday 7 January 2017. My audition was a success and I beg leave to refer to a recording of the same when available. I believe that I presented as a likeable contestant. In the pre-audition discourse with the judges' panel, when asked what I wanted to achieve honestly answered that "I wanted to be known for my singing". My mother was pictured in the audience but not my father. Unlike some other contestants, no pre-audition VT was shown relating to my family life or background. I performed the well-known Sinatra song "New York, New York" and received an excellent reaction from the crowd and the judges' panel. I received enough marks or "stars" from the judges' collective vote to proceed to the next round of the competition.
12. A week after the broadcast of my televised audition, the Sun Newspaper in its online editions carried articles which I believe breach my privacy and data protection rights. … The online article remains published at the date of the issuance of these proceedings.
13. On 14 January 2017, the Sun Newspapers and the online edition (at 10:41 pm) published a story, displayed in its original/existing format below under the following Banner:
"BAD DAD of a wannabe star on Gary Barlow's new talent show 'Let it Shine' was an IRA terrorist who was jailed for 25 years: Deaghlan Arthurs, 18, is the son of ex-IRA Bridgade Commander, Brian, who was jailed for 25 years."
14. The story that the Article is seeking to "exclusively" tell the reader is the fact that my father was an IRA terrorist. I was born after the ceasefire and had no involvement or knowledge of events in respect of my father. I believe that the fact that my father's conviction is a matter in respect of which I have a reasonable expectation of privacy and that the publication of the same amounts to processing of my personal and sensitive personal data by the defendant.
15. Implicit within the title is that there is some relevance of my father's criminal convictions to my worth or ability as a contestant in a singing talent show. I dispute this – his convictions have nothing to do with assessing my worth or ability as a contestant on the talent show.
16. The article continues:
'Let it Shine hopeful Deaghlan Arthurs is the son of a convicted IRA terrorist who was jailed for 25 years. Deaghlan, 18, of County Tyrone, Northern Ireland, was seen last week reaching the next stages of the BBC contest singing New York, New York. The fresh-faced hopeful impressed the Let it Shine judging panel last week with his charismatic rendition of Frank Sinatra's New York New York. The performance saw him win a standing ovation from all four judges while Gary Barlow gushed he was "amazing, absolutely amazing". But his dad Brian, 51, is an ex-IRA Brigade Commander jailed for possessing explosives. He was released in 2000 after 5 years under the terms of the Good Friday Agreement. In 2012 he was convicted of a £250,000 mortgage fraud and given a suspended jail term. In 2014 he was named as the chief perpetrator of a gang funding letter bombs by selling counterfeit fags. He was then said to have "strong" links to the New IRA. Deaghlan's family were not featured in any video clips on the show'."
"There is no dispute about the accuracy of [the father's] convictions or about the criminal background of his father. His reason for not saying anything [to the BBC] is that it was "a private and confidential matter" as it related to him personally."
Right to respect for private and family life
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.
Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
"66. These dicta are couched in different language, but they are to the same general effect, and assist in understanding what Lord Macmillan is likely to have intended when he said that the trial judge might be shown "otherwise to have gone plainly wrong". Consistently with the approach adopted by Lord Thankerton in particular, the phrase can be understood as signifying that the decision of the trial judge cannot reasonably be explained or justified.
67. It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified."
"The approach which should be adopted on an appeal of this kind is not, we think, in dispute. Although the exercise upon which the judge was engaged was not the exercise of a discretion it was similar in that it involved carrying out a balancing exercise upon which different judges could properly reach different conclusions. In these circumstances it is now well settled that an appellate court should not interfere unless the judge has erred in principle or reached a conclusion which was plainly wrong or, put another way, was outside the ambit of conclusions which a judge could reasonably reach."
in privacy cases. The Master of the Rolls cited the judgment of Lord Nicholls in Campbell v MGN Limited  2 AC 457 at paragraphs ,  and in particular :
"Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy."
At paragraph 23 of the judgment in Browne the Master of the Rolls said this:
"As we see it, the approach required by Section 12 arises in this way. The court should first consider whether this is a case in which Article 8 is engaged. It should then consider whether Article 10 is engaged and, critically, whether the applicant for relief has shown that he is likely to establish at a trial that publication should not be allowed within the meaning of Section 12(3) of the HRA."
At paragraph 24:
"The first question under Article 8 is whether in respect of the disclosed facts the claimant has a reasonable expectation of privacy in the particular circumstances of the case."
"The cases make it clear that, in answering the question whether in respect of the disclosed facts the claimant has a reasonable expectation of privacy in the particular circumstances of the case the nature of any relationship between the relevant persons or parties is of considerable potential importance."
Here we are not concerned with that relationship, but we are concerned with "the disclosed facts". Clearly there is no relationship of confidence between APD and the defendant.
"32. That is clear, for example from Lord Nicholls' formulation of the test, namely whether in respect of the disclosed facts the claimant has a reasonable expectation of privacy – our emphasis. As we see it the test must be applied to each item of information communicated to or learned by the person concerned in the course of the relationship.
37. If, in respect of particular information, there is a reasonable expectation of privacy, Article 8 is engaged. The question is then whether interference with those rights should be permitted under Article 8(2)."
"The law is to be applied broadly, taking account of all the circumstances of the case. In Lord Steyn's famous phrase, in law context is everything. "
Consideration of first stage expectation
"91. The role or function of the person concerned and the nature of the activities that are the subject of the report and/or photo constitute another important criterion, related to the preceding one. In that connection a distinction has to be made between private individuals and persons acting in a public context, as political figures or public figures. Accordingly while a private individual unknown to the public may claim particular protection of his or her right to private life the same is not true of public figures (see Minelli v Switzerland (App. No. 14991/02) (Admissibility Decision, 14 June 2005) and Petrencov Moldova  EMLR 77 at paragraph )."
"In oral argument it was accepted by both sides that the ordinary rule is that the press, as the watchdog of the public, may report everything that takes place in a criminal court. I would add that in European jurisprudence and in domestic practice this is a strong rule. It can only be displaced by unusual or exceptional circumstances. It is, however, not a mechanical rule. The duty of the court is to examine with care each application for a departure from the rule by reason of rights under Article 8. In that case it was accepted that Article 8 was engaged."
That is radically different from the position here of a young man seeking to make a career in the public eye.
"Freedom of expression
(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(2) If the person against whom the application for relief is made ('the respondent') is neither present nor represented, no such relief is to be granted unless the court is satisfied—
(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—
(a) the extent to which—
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.
(5) In this section—
'court' includes a tribunal; and
'relief' includes any remedy or order (other than in criminal proceedings)."
(i) Declan Arthurs was and is of full age and not in law a child.
(ii) He was not some young person upon whom public attention had fallen through no choice of his own e.g. by some spontaneous act of bravery or excellence. He wished to be a performer. He entered the competition to seek to perform on television. He obtained that ambition and performed very creditably. He therefore put himself in the public eye.
(iii) He was expressly asked about "anything in relation to my family that would result in publicity" according to his own affidavit of 3 February 2017. He did not say that he wished to have no enquiry about his family but keep that entirely private. That might have had an adverse effect on his chances of being selected for the next broadcast stage of the competition. Rather he chose to refer to his uncle's death without disclosing his father's convictions which were at least as relevant.
(iv) His relationship to his father would have been well-known in the neighbourhood in which he lived.
(v) The link to the father was disclosed in the Irish News newspaper circulating in Northern Ireland prior to publication by The Sun, albeit without setting out his convictions.