Article 8 Flashcards
What is Article 8?
Article 8 is the right to respect for private and family life. This is a qualified right which means the right can be limited in accordance with the law and if it is to meet a legitimate aim (Article 8 (2)). Limitations must be proportionate and in accordance with the law. There should be a fair balance between the rights of the individual and of the community as a whole
Step 1: Article 8 (1) protects 4 rights
- private life
- family life
- home
- correspondance
Step 2: Article 8 (1) - Private life
right to private life is not the same as privacy
Botta v Italy: private life includes a ‘person’s physical and psychological integrity’
Step 2: Article 8 (1) - Private life
What is included in a person’s physical and psychological integrity?
- physical and social identity, gender indentity, name and sexual orientation
- Pretty v UK
- their sex life and gender
- reputation
- autonomy and dignity
- Peck v UK
- photos
- personal data
Step 2: Article 8 (1) - Private life
Sexual identity and gender
The ECtHR is a living instrument which develops in line with society.
Private life includes sexual orientation and freedom (Dudgeon v UK) with includes transgender men and women, any laws treating homosexuals less favourably are also key features (Peck v UK).
Goodwin v UK: barriers imposed on a transgender person violated Article 8
Step 2: Article 8 (1) - Private life
Police Searches
police searches may be jusified if the aim of the state is to prevent crime or uphold national security. Any interference must have a legal basis and be proportionate
Gillan and Quinton v UK: police extended powers under s.44 Terrorism Act 2000 to stop and search any person without reasonable suspicion (usually required). Despite wide margin of appreciation in issues of national security, the ECtHR believed this was a disproportionate use of power
Step 2: Article 8 (1) - Private life
Surveillance
Halford v UK: police were listening to the telephone conversations of the Assistant Chief Constable whilst she was at work. There was no legal basis allowing the monitoring of the police telecommunication system, therefore, this was a breach
Step 2: Article 8 (1) - Private life
Personal data
medical data is considered confidential for adults (MS v Sweden) and children who are considered Gillick competant (ie, old enough to consent to medical treatment without the permission of their parents)
Axon v Secretary of State for Health: If the child is considered Gillick competant then the parental righ to determine medical treatment is ended
Step 2: Article 8 (1) - Private life
Personal data
DNA
Criminal Justice and Police Act 2001 allows police to retain DNA samples on a database for offenders. ECtHR in S and Marper v UK rules blanket retentio of DNA profiles taken from innocent people posed a disproportionate interference with the right to private life
Protection of Freedoms Act 2012 only people convicted of an offence will have their fingerprint records and DNA profiles retained indefinately
Step 3: Article 8 (1) - Family life
ECtHR defined ‘family life’ to include different types of family relationships including: children, grandchildren, adoptive and foster relationships (Gaskin v UK), relationships after divorce, other relations with close family ties, married couples and co-habiting unmarried couples
Same sex couples were at one time categorised under ‘private life’ however, since Schalk and anor v Austria they can be categorised under family life
Step 3: Article 8 (1) - Family life
What constitutes a family
what constitutes a family depends on close family ties and is a mtter of fact and degree (Lebbink v Netherlands)
Art 8 gives people the right to enjoy these family relationships without interference by the state. This includes the right to live with or have regualr contact with your family. There are many aspects of family life that is affected by the state, for example:
- care proceedings (including taking a child from their home into care)
- access to a child
- forced breakup of a family due to immigration rules
Step 3: Article 8 (1) - Family life
Children
family family proceedings cases involve child contact and care decisions. The decision of the state to remove a child into care must be done proportionately as there is a wide margin of appreciation in these cases. However, the child’s rights are paramount (Yousef v Netherlands)
Johansen v Norway: court stated that particular weight should be attached to the best interests of the child, which may override those of the parent
Step 3: Article 8 (1) - Family life
Removal from the state
removing people who have a family life can cause issues with immigration rules, for example, if people are in a relationship where one cannot remain in the ocuntry due to immigration rules but the other does have the right to stay
Agyarko and Ikuga v Secretary of State for the Home Department: both women wanted to stay in the UK to be with their family, but were here illegally. Only in exceptional circumstances would they be allowed to stay, ie. where there are insurmountable obstacles in the way
The state can in some cases, deport criminals. However, this didn’t occur in Nasri v France where a convicted rpaist who was deaf, unable to speak and illiterate was allowed to stay in France as that is where his family lived
Step 3: Article 8 (1) - Family life
UK examples of family and private life
the positive obligations from Art 8 and the provisions of the HRA have led to developments in the UK law to protect both family and private life
Wood v Commissioner of Plice of the Meteropolis: police taking and retaining photos of protestors opposed to the arms trade was a violation
R (T) v CC Greater Manchester Police and ors: blanket disclosure of minor previous convictions during employment checks was disporoportionate under Art 8
s.83 Sexual Offences Act 2003 requires a person who has been sentences to more than 30-moth imprisonment for a sex offence to notify the police where they are living and any travel they do for the rest of their life. Later the UK SC held the inability to review this requirement was disproportionate and was a violation
AB v Secreyary of State for Justice: no justification to refuse a pre-op transgender woman who was held in a male prison the right to move to a female prison = violation
Step 4: Article 8 (1) - Home
‘home’ is given a wide definition, yet there’s no right to have the state provide a person with a home (apart from some people, eg. the state doesn’t have to provide accomodation for the severly disabled)
The article palces a duty on the state to respect a person’s existing home, this means the state must allow access to the home and the right to live in it (ie. peaceful enjoyment of their property)