4. Art 8

Question 1

Costello-Roberts v UK

Answer 1

Breach of person’s ‘physical and moral integrity’ through corporal punishment could engage Art 8

Question 2

McDonald v UK

Answer 2

States have wide margin of appreciation over allocation of scarce resources – here no violation

Question 3

Dudgeon v UK

Answer 3

Criminal prohibition on homosexual conduct between consenting adults in private existing in Northern Ireland breached Art 8

Question 4

Gillan

Answer 4

Stop and search powers in Terrorism Act 2000, ss 44-47 not incompatible with Art 8

Question 5

Gillan and Quinton v UK

Answer 5

ECtHR held that the powers under TA 2000 were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse

Question 6

Khan v UK

Answer 6

Surveillance measures would only be in accordance with law for purposes of Art 8(2) where clear statutory framework existed

Question 7

Wood

Answer 7

Retention of police photographs of peaceful demonstrator held to engage protection of Art 8

Question 8

Kroon v Netherlands

Answer 8

‘Family’ is not limited to relationships dependent on marriage

Question 9

Evans v UK

Answer 9

Requires balancing of competing interests under Art 8 - court found in favour of man’s right not to be forced into paternity over woman’s right to use embryos jointly created by them

Question 10

Dickson v UK

Answer 10

Life prisoner successfully argued that denial of access to IVF engaged Art 8

Question 11

Abdulaziz and others v UK

Answer 11

Art 8 does not impose obligation on state to respect choice by married couples of their country of matrimonial residence and accept non-national spouses for settlement in that country

Question 12

Quila v Secretary of State for the Home Department

Answer 12

Rules on grant of marriage visas, where either party to marriage was under 21 years old, breached right to family life guaranteed by Art 8 - measure was disproportionate and thus ‘not necessary in a democratic society’

Question 13

Coughlan

Answer 13

HA proposing to move paraplegic patient from accustomed place of residence was held to have violated Art 8

Question 14

Harrow LBC v Qazi

Answer 14

Art 8 cannot be used as defence when tenant was facing eviction

Question 15

Manchester City Council v Pinnock

Answer 15

SC held UK courts should, in certain circumstances, take into account proportionality of requiring tenant to leave home, even when their technical right of occupation had ended in domestic law

Question 16

Hatton v UK

Answer 16

Gvt not directly responsible for noise levels around Heathrow, but has obligation to manage it

Question 17

Malone v UK

Answer 17

Interceptions of applicant’s postal and telephone communications by police for purpose of prevention and detection of crime violated Art 8

Question 18

Foxley v UK

Answer 18

Mail intercepted between applicant and his solicitors breached Art 8

Question 19

Campbell v UK

Answer 19

Reading of letter from solicitor to inmate violates Art 8 - should only be opened where there is reasonable suspicion contains illicit material, and only opened, not read (other than in exceptional circumstances)

Question 20

Daly

Answer 20

Blanket policy allowing prisoners’ cells to be searched in absence held to violate Art 8

Question 21

Secretary of State for the Home Department v AP

Answer 21

SC held that the imposition of a 16-hour curfew and requirement that appellant live 150 miles from his family under TA 2005 was a violation of his right to family life

Question 22

Da Silva v Netherlands

Answer 22

Art 8 violated when Dutch authorities refused to grant Brazilian residence permit on grounds her interest in staying near daughter (Dutch national) was outweighed by interests of economic wellbeing of Netherlands

Question 23

Marper

Answer 23

Police’s policy of retention and use of DNA samples and fingerprints after suspects had cleared of offence compatible with Art 8

Question 24

S and Marper v United Kingdom

Answer 24

ECtHR disagreed – blanket and indiscriminate nature of the DNA retention policy was seen to be disproportionate, and notably different to practices in other European countries – violates Art 8

Question 25

T and others

Answer 25

Regime of disclosure of previous criminal convictions - disproportionate in relation to minor offences which undermine applicants’ career prospects, but not in relation to more serious offence

Question 26

Wainwright v UK

Answer 26

Applicants subject to strip and intimate body searches while visiting inmate in prison – Art 8 violated (though in accordance with law and pursued legitimate aim, held to be disproportionate)

Question 27

Campbell v MGN

Answer 27

Two elements for ‘misuse of private information’
• (1) Whether the applicant has a reasonable expectation of privacy so as to engage Art 8(1)
(i) Is information obviously private?
(ii) If no, consider whether reasonable person of ordinary sensibilities, if placed in same situation, would find disclosure offensive

• (2) If Art 8(1) is engaged, the next stage of the inquiry is to conduct a balancing exercise between Arts 8 and 10, and to consider whether the publication was necessary

Question 28

Douglas v Hello!

Answer 28

‘Private information’ includes information that is personal to person who possesses it and is not intended for general public

Question 29

Browne v Associated Newspapers

Answer 29

No reasonable expectation regarding information in public domain

Question 30

Von Hannover v Germany (No 2)

Answer 30

Art 8 extends ‘zone of interaction of a person with others, even in a public context’

Criteria to be considered when carrying out balancing exercise
• (1) Whether info contributes to debates of general interest
• (2) How well known person is and subject matter of report
• (3) The prior conduct of the individual concerned
• (4) Consent, form and consequences of publication
• (5) Circumstances in which the photos were taken, in particular whether the person photographed gave his consent

Question 31

HRH Prince of Wales v Associated Newspapers

Answer 31

(1) C had reasonable expectation of privacy with respect to diary written during visit to HK; (2) balance fell in favour of preserving the confidentiality of the journal

Question 32

Mosley v News of the World

Answer 32

M had reasonable expectation of privacy with respect to story alleging Nazi-themed SM orgy (Nazi theme untrue; had it been true, there may have been legitimate public interest in story)

Question 33

The Author of a Blog v Times Newspapers

Answer 33

C could have no reasonable expectation of privacy regarding his identity because blogging is ‘an essentially public activity’