Riotgrrl wrote:I think the Sheriff's comments about the woman being entitled to her privacy were his opinion, rather than a matter of law and should be read alongside his comments about chivalry.
This was not a privacy case, it was a BOP, and the crime was because the woman had been caused fear and alarm by his behaviour. If she had not seen him taking her photograph, then no crime would have been committed.
I think.
Not entirely so, ever since the Naomi Campbell case in 2004 were she successfully sued OK for the drug rehab pictures (which were also taken in a public place) the courts have been pretty confident in using Article 8 of the European Charter on Human Rights, "Everyone has the right to respect for his private and family life, his home and his correspondence" in cases involving unwanted pics being taken. Even were this not mentioned specifically by the Sheriff it will have undoubtedly informed his reasoning, given he must ensure all his decisions are compliant were possible, although admittedly prior cases in this area have generally involved publication of the offending images, which hasn't occurred here.
Whilst the ECHR technically cannot be relied upon between two private parties (supposedly it only applies in cases between the state and a private party, in practice this hasn't been the case, due to 'horizontal effect'), courts as a public body are bound to follow it since the Human Rights Act in 1998, hence its famous (among lawyers anyway!) use in the Campbell case. Its a pretty interesting area of law, especially as article 8 appears to often conflict with article 10 which protects freedom of expression (this of course includes the taking of photos).
Breach of the peace of course does also apply and appears to have been used as the basis of the fine. However it could still be BOP even if she
had not seen him take the picture, it would still be a crime. BOP can apply to any behaviour which the police believe
could cause distress or alarm to the average member of the public (or the
lieges, as a judge would no doubt call them), even were such conduct has not caused any such distress. This is why BOP is such a controversial offence. Technically anything can be BOP. But that's another can of worms...
To cut a long story short, British citizens do have a legal right to privacy and are a matter of law, and courts have affirmed it in the past.