Art 8 Flashcards
Article 8
Right to respect for; family life, home life, correspondence and private life
Not an absolute right, can be infringed by the art 8(2) categories
Osman v UK
Art 8 has a positive obligation
R v AG
Private life does not extend as far as to protect hobbies (foxhunting)
Costello-Roberts v UK
Private life extends to personal well being. Corporal punishment prohibited
Von Hannover v Gemany
Art 8 extends to image
Dudgeon v UK
Art 8 extends to sex life. Art 8 violation to prohibit homosexuality
ADT v UKq
Art 8 infringed by police raid on gay S + M orgy
R (Gillan) v UK
UK court judged that stop and search powers were not a serious enough to be an art 8 violation
Gillan and Quintox v UK
Stop and search powers appealed to Strasbourg and judged that stop and search powers were an art 8 violation as the powers were not clearly enough defined to be prescribed by law. At what level stop and search became a violation was not set so was an art 8 infringement
Wainwright v UK
- Search where woman was strip searched without discretion for privacy was art 8 violation
- The infringement was not proportionate
Khan v Uk
Recording of a drug deal was art 8 violation
R (Wood) v Police Commisioner
Retention of photographs of a protester was an art 8 violation due to length of time retained
Peck v UK
Council’s use of images from CCTV camera were beyond what was proportionate in the prevention of crime, as submitted for an article in a newspaper. To interfere with right to privacy in pursuit of prevention of crime would have been justified but for the disproportionate use of his image
R (Wright) v SOS Health
Provisional listing of nurses as inappropriate to work with vulnerable adults was not proportionate to aim of protecting health and morals of others because there had been no conviction.
H + L v A City COuncil
Disclosure of past convictions where it was irrelevant to the job was an art 8 infringement as disproportionate to aim of protecting health and morals
McKennit v Ash
Right to home life fiercely protected
Pinnock v MCC
In infringing someone’s right to home life there must be proportionate consideration of the impact of the decision on the individual and wider society
S + Marper v UK
Indefinite retention of DNA regardless of offence was not justified as the nature of the crime/how long ago it was was not considered. Therefore disproportionate.
T v BBC
Decision to block publication of footage showing mother verbally abusing child was taken on the basis of proportionality. Her right to family and private life was more important then the BBC’s art 10 right to freedom of expression
Kroon v Netherlands
Right to family life extends to co-habiting couples
Evans v UK
Respect for family life judged less important than respect for private life. Proportinoality assessment of husband’s right not to become a father and a wife’s right to respect for her family life
Dickinson v UK
Denying prisoners right to use artificial insemination was disproportionate as it was a blanket ban. If it had been considered on a case by case basis then the case may have been approved
Aliev v UK
Conjugal visit ban, interfering with right to family life, judged to be proportionate as sex not essential to having kids and lack of sex was a disincentive to commit crime, so was a proportional interference
R (Coughlan) v Devon
Paraplegic given assurances that she would not be moved homes…moved. Art 8 interference right to respect for home life
Harrow v Qazi
Evicted after not paying rent, argued art 8 infringement. Infringement justified, however subsequent cases have emphasised the need for proportionality in denying someone a home. How will this affect the individual? How will this affect society?
Hatton v Uk
Right to home life extends to respect for quality of home life. Planes flying overhead.
Halford v UK
Cannot tap phones
Copland v UK
Cannot monitor internet usage to prevent misuse of company property. Disproportionate interference in relation to goal.
Malone v UK
- Cannot intercept post
- Right not clearly enough defined
Campbell v UK
Correspondence between a prisoner and solicitor can only be read if there is reasonable cause and it is opened in the presence of te prisoner. This is a proportionality requirement.
Daly v SSHD
Searching prisoners cells in their absence was an art 8 breach due to disproportionate application of power. if was in their presence then would be proportinoate
Sunday Times v UK
Art 8 infringement must be prescribed by law;
- Clear
- Accessible
- Legal basis
What 3 requirements are their for an art 8 infringement to be justified?
- Prescribed by law
- In pursuit of legitimate aim
- Necessary in a democratic society
Handyside v UK
NIDS is a proportionality requirement
Smith + Grady v UK
The question in assessing proportionality is whether it is answering a ‘pressing social need’
Segerstedt -Williberg v Sweden
Storage of personal information regarding political affiliations was judged disproportionate to the goal of national ssecurity
SHD v AP
Control order imposing a 16 hour curfew and living 150 miles from his family was a proportionate infringement due to real risk posed by individual and goal of national security
Ziya Uner v netherlands
Deportation for manslaughter was proportionate to aim of public safety
Da Silva v Netherlands
Denying citizenship on the basis of economic well being was disproportionate. Look at impact on individual in comparison to impact on society. Is it answering a pressing social need? NO
Ex p LS
Indefinite retention of fingerprints and DNA was art 8 violation. Temporary retention based on crime would have been proportionate
Defence of a public body to a art 8 infringement?
S6(2) - in adherence to domestic primary legislation.
Not available if S3 interpretation used.
What section are remedies?
S8 HRA 1998
What is the section for the fast-tracking of a decision?
S10 HRA 1998
In deciding whether a S3 interpretation will be available consider the following case law;
R v A - ‘As far as possible’
Re S & Re W - Cannot rewrite legislation
Bellinger v Bellinger - Cannot interpret where legal impact will be very large
Wilkinson - Cannot interpret agaisnt original meaning
Ghaidan v Godin-Mendoza - Can read in to the point of being linguistically strained.
