CCTV v ECHR – Molloy v BPHA Ltd [2021] EWCA Civ 1035

CCTV can often be said by people to be a ‘breach of human rights’ but is that correct? And can CCTV be considered a breach of the right to a private family life?

The recent Court of Appeal matter of Molloy v BPHA Limited [2021] EWCA Civ 1035 (“Molloy”) considered that question, alongside other matters on appeal.

In considering the decision in Molloy, the background is relevant in that Mr Molloy (and his wife) had had an injunction under the Anti-Social Behaviour, Crime and Policing Act 2014 granted against them. That injunction was granted on the basis of complaints from Mr Molloy’s neighbour (known only as Ms B in the appeal). Ms B and Mr Molloy occupy adjoining properties in a small terrace; they share a short communal pathway leading from the street to their front doors.

The injunction prohibits Mr Molloy from using racist, offensive or abusive language or gestures against Ms B, any member of her family or visitors and from intimidating or attempting to intimidate Ms B, amongst other requirements which were not relevant to the appeal.

Ms B had installed CCTV outside the front of the property on the advice of the Police. The CCTV recorded further instances of alleged abuse and BPHA (housing association and landlord of both properties) brought committal proceedings against Mr Molloy.

Within the committal proceedings, findings were made in relation to 1 of the allegations (with no findings being made on 5 others) and Mr Molloy had a suspended sentence of imprisonment imposed upon him. In relation to the finding made, the evidence was in the form of a CCTV recording which showed the Molloys getting out of their car, Mrs Molloy asking if she should lock it, Mr Molloy saying yes and then as they walk through the gate, Mr Molloy making what the Judge describes as a ‘racist expletive’ [see paragraph 18 of the judgment] and using his thumb to point over his shoulder (the expletive is included within the judgment but I will not include it in this article).

Within the committal proceedings, the Judge also amended the injunction to add a new term that prohibits Mr Molloy from “using abusive language, in particular racially abusive language or gestures, (including spitting), in the public area outside [the properties] or on the communal pathway” [19]. This addition seems to be in part due to the fact that the Judge felt there was difficulty in making findings that there was a breach of the term of using racist, offensive or abusive language ‘against’ Ms B without that use of language being face to face.

The appeal was brought on two grounds – the first related to the finding that was made and the second related to the amendment made in the adding of the new term, which will be this article’s focus.

Ground 2 stated that by adding the new term, the Judge had wrongly infringed on Mr Molloy’s “reasonable expectation of privacy when talking outdoors beyond earshot of other people, because it required him to modify and alter his behaviour for the benefit of persons eavesdropping on his private conversations in a public place.” It was further said that in amending the injunction, the Judge had wrongly legitimised the ‘mission creep through which the CCTV camera installed outside his home had changed its function from being a device passively used to record behaviour….into a surveillance and eavesdropping device” [21].

The appeal upon Ground 1 was dismissed, Peter Jackson LJ describing Ground 1 as “hopeless” [23]. However, Ground 2 was described as “slightly more substantial” [28]. The Court of Appeal were referred to the General Data Protection Regulations (2016/679 EU), the Protection of Freedoms Act 2012, the Surveillance Code of Practice and guidance issued by the Information Commissioner about the use of CCTV in public spaces, together with Article 8 of the European Convention on Human Rights (“ECHR”). Article 8 is the right to respect for private and family life.

It was asserted before the Court of Appeal that the Court had overridden Mr Molloy’s “reasonable expectation that conversations with his wife, carried on in the absence of other persons, are private ones and that it is disproportionate interreference with his Article 8 to require him to regulate his behaviour for the benefit of, as he puts it, “the operator of a CCTV system eavesdropping on such conversations” [29].

Peter Jackson LJ stated that those submissions “miss the point” [30]. If there had been no history of anti-social behaviour, there would be no justification for this use of CCTV but Mr Molloy had to take account of the effect of his behaviour on Ms B. It was determined in this case, that the Article 8 rights of Ms B and her family “overwhelmingly outweigh” [31] any considerations of privacy which Mr Molloy and his wife would normally be entitled to expect and that the circumstances here “undoubtedly justified a departure from the norm” in that one would not normally expect to be recorded by a neighbour leaving or arriving home [31].

It was said that the complaint about the use of CCTV was “patently overblown” [32] and that the CCTV was used only to defend Ms B and her family from Mr Molloy’s behaviour. The logic of Mr Molloy’s argument would be to leave him free to flout court orders without the inconvenience of being recorded doing so.

Peter Jackson LJ said of the amendment that to “most people the obligation to behave in a civilised manner in a shared area in front of their home would not be very burdensome, but the imposition of an order of this kind must still be justified” [34]. It was determined that Ground 2 of the appeal also failed.

The consideration of Article 8 rights in relation to the CCTV in this matter was determined on the facts and the circumstances of the case in that it was considered on the basis of the past behaviour of Mr Molloy and a weighing up of Ms B and Mr Molloy’s rights. Within this matter, Ms B was also advised by the Police to install CCTV (and the judgment notes that Mr Molloy has been convicted of a racially aggravated offence relating to events underlying the injunction) and it was in the hearing conceded that the installation was entirely appropriate upon that advice.

The matter of CCTV in communal/public areas infringing on Article 8 rights will need to be considered on a case-by-case basis, including consideration of the other pieces of legislation and guidance listed above. However, this case highlights a particular set of facts upon which installation may be appropriate.

A copy of the Molloy judgment is available here: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1035.html

The numbers in square brackets related to the paragraph numbers of the judgment.

Member of Becket Chambers are able to provide advice and representation in a variety of civil matters, such as this; please contact the clerks on clerks@becket-chambers.co.uk or 01227 786331 for further details.