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Con & Ad Law > Article 8 > Flashcards

Article 8 Flashcards

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1
Q

What are the 4 preliminaries?

A

Standing (victim), time limit, UK jurisdiciton, public authority

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2
Q

Explain standing

A 
S 7(1) HRA 1998 illustrates that the claimant must be victims in order to bring a claim under the act
S 7(7) states that ‘victim’ is given the same definition as that in Art 34 ECHR. Klass v Germany further defines this as any  person who is ‘directly affected’ by the interference
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3
Q

What is the time limit in the preliminaries?

A

The action must be brought within a year of the violation (s 7(5) HRA)

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4
Q

What is the UK jurisdiction in the prelims?

A

Under Art 1 ECHR the UK has a duty to protect the Convention rights of any individual, regardless of nationality, within their jurisdiction

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5
Q

What is the public authorities in the prelims?

A

s6(1) HRA - unlawful for public authority to act incompatibly with the Convention. No precise definition for public authority in the HRA.
The courts have distinguished between core and hybrid public authorities (Aston Cantlow)

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6
Q

What constitutes core public authority?

A

A body will be core if its public role is such an inherent part of its nature that it is obviously public (Aston Cantlow v Wallbank)
It is liable for all that is done

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7
Q

What constitutes hybrid public authorities?

A

Bodies performing FUNCTIONS of a public nature s6(3)(b).

Only liable for the PUBLIC functions they carry out; not if ‘the nature of the act is PRIVATE’ (s 6(5)).

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8
Q

What is article 8?

A

Article 8 – Right to a private and family life

The state must respect each person’s right to a private and family life, his home and his correspondence (A 8(1))

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9
Q

How may one interfere with article 8?

A

(A 8(2)):
Prescribed by law
Necessary in a democratic society
Pursuant of a legitimate aim

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10
Q

Interference - what is ‘prescribed by law’?

A

Three-part test set out in Sunday Times:
1. The interference must be based on a valid legal authority.

  1. i) The relevant law must be accessible to the individual

ii) The law must be clear and predictable to enable citizens to regulate their conduct
– look out for ‘any’ / vague wording

  1. It must not be possible to apply the act in an arbitrary way/give unfettered power (sufficiently narrowly prescribed to avoid excessively wide-ranging powers) (Gillan and Quinton v UK)
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11
Q

Interference - what is ‘in pursuit of a legitimate aim’?

A

Must fall in one of these categories:
national security, public safety, economic well-being of country, prevention of disorder of crime, protection of health or morals, protection of rights and freedoms of others.

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12
Q

Legitimate aim: national security

A

An assertion of national security will not automatically be accepted
The creation of a database on individual’s political opinions/activities was disproportionate; it was a serious interference (Segerstedt-Wilberg v Sweden)
A 16hr control order and detention 150 miles from family disproportionate (SOS HD v AP)

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13
Q

Legitimate aim: public safety

A

Deportation of an individual convicted of manslaughter was lawful (Ziya Uder v Netherlands)

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14
Q

Legitimate aim: economic well-being of country

A

Obtaining a residence permit may require an individual to prove that they will not be a burden on the state (Da Silva v Netherlands)
Working illegally and not paying taxes threatens the economic interests of the country

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15
Q

Legitimate aim: prevention of disorder or crime

A
  • Holding DNA samples indefinitely of suspects cleared of offences was unlawful (S and Marper v UK)
  • Wainwright v UK - intimate search of mother and disabled son when visiting family member in jail unlawful.
  • Disclosure to all his contracts of conviction for indecent assault of a child was disproportionate because he did not work with children as part of his affiliation with these organisations (R (H) v A City Council)
  • Blanket disclosure of all criminal matters, even tiny ones from years back (stolen bikes at 11, accidentally not paying for something 10 years back) (harder to get jobs) in an ECRC went beyond what was necessary to prevent crime and disorder (R (T and Others) v CC of Greater Manchester)
  • Statutory scheme preventing serious convictions from ever being ‘spent’ not a blanket policy, as it distinguished between serious offences and those that were not (R (T and Others) v CC of Greater Manchester)
    not allowing private life.
  • Data retention (Catt v Acpo)
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16
Q

Legitimate aim: protection of health or morals

A

Intimate strip searches of prison visitors disproportionate (Wainwright)

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17
Q

Legitimate aim: protection of rights and freedoms of others

A

‘Interests of others’ often raised in relation to a right of freedom of expression by the media
An employer’s monitoring of calls / emails / internet a violation (Copland v UK)
Screening a scene of an individual’s private family life without their consent was a breach (T v BBC)

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18
Q

Interference: what is the test for ‘necessary in a democratic society’?

A

Handyside v UK

  1. The actions must be in response to a pressing social need
  2. The actions must be a proportionate response to that need
    - Preventing homosexuals serving in the military disproportionate (Smith and Grady v UK).
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19
Q

Private life: What does a8 protect?

A

Name and image, personal identity (Von Hannover v Germany)
A person’s physical (Osman v UK - also positive obligation) and mental (Costello-Roberts v UK) integrity
A person’s right to die (R (Purdy) v UK)
Right to notification of presence on the sex offenders’ register (R (Thompson & F) v HS
Sexual orientation (Dudgeon v UK)
Sexual activities conducted in private (ADT v UK)
It does not protect a person’s right to hunt (R (Countryside Alliance) v AG)

Peck v UK- bbc showed man on cctv going to commit suicide

20
Q

Private life: searches of the person by a public authority

A

Searches may violate A 8. To engage A 8 they must reach a certain level of seriousness (R (Gillan) v Commissioner of Police for the Metropolis)
The searches must not be arbitrary and any violation will depend on the seriousness of the circumstances in which they are carried out - phd student and photographer at arms fair(Gillan and Quinton v UK)
Intimate strip searches of prison visitors were disproportionate (Wainwright v UK)

21
Q

Private life: surveillance by the state

A

State surveillance measures require a statutory basis (Khan v UK - hotel cctv discussing drugs). This has been provided for by the Regulation of Investigation Powers Act 2000, which insists that authority be obtained for covert surveillance
Intrusive use of CCTV and retention of photographs beyond a reasonable time may breach A 8 depending on the circumstances (R (Wood) v Commissioner of Police of the Metropolis)

22
Q

Family life: definition and whom it involves?

A

‘Family life’ is broadly defined and not solely confined to marriage based relationships (Kroon v Netherlands)
Children born outside of marriage are covered by ‘family life’ (Kroon v Netherlands)

Any action by a public authority which may disrupt the family unit may be challenged under A 8

23
Q

Family life: Includes which right? What would be disproportionate?

A

Family life includes the right to prevent artificial insemination against one’s will (Evans v UK)

Blanket bans in pursuit of legitimate aims will be disproportionate
A blanket ban on awarding marriage visas to persons under 21 not a proportionate means of preventing forced marriages (Quila v SOS HD)
A blanket ban on access to artificial insemination facilities for prisoners (Dickson v UK)

24
Q

Family life: What kinds of visits unsuccessful?

A

Challenges to A 8 by prisoners refused conjugal visits have been unsuccessful (Aliev v Ukraine).
Detention intrinsically limits family and private life but prison authorities must assist prisoners in maintaining effective contact with their family
A restriction on conjugal visits may be justified for the prevention of disorder and crime

25
Q

Quality of home life?

A

There is a right to be free of interferences. In Hatton v UK excessive noise from night flights engaged A 8

Home life can extend to business premises (Halford v UK)

McKennitt v Ash - sanctity of home and privacy rights. (eg cctv)

26
Q

What happens if someone has been assured they can remain in a specific care home?

A

Moving them would engage article 8 (R (Coughlan) v N and E Devon Health Authority)

27
Q

Can one evict a tenant from public housing?

A

Not if it would be disproportionate, even if their technical right of occupation has ended in domestic law (Pinnock v Manchester CC)
Pinnock applied to ‘demoted tenancy’. Houslow LBC v Powell extended this to include ‘introductory tenancy’

28
Q

Correspondence: what does it extend to?

A

Letters, emails. texts. telephone.

29
Q

Correspondence: is interception of postal/telephone communications a breach?

A

Yes it can be (Malone v UK)

30
Q

Correspondence: interception of mail between applicant and solicitor?

A

breach if the order allowing it has expired (Foxley v UK)

31
Q

Correspondence: phonecalls from a business premise?

A

Engages art 8 (Halford v UK)

32
Q

Correspondence: monitoring emails and internet usage by public employer?

A

Engages art 8 (Copland v UK)

33
Q

Correspondence: High protection prisoners rights in relation to communication with lawyers

A

Considerable protection afford to a prisoner’s correspondence with a solicitor. The protection of the right to confidentiality over privileged legal correspondence was all the more important because prisoners had lost other basic rights (Lord Bingham in (R (Daly) v SOS HD)
If reasonable cause exists the correspondence should be read in the prisoner’s presence (R (Daly) v SOS HD)

34
Q

Prisons’ correspondence

A

Prison authorities may only open a letter from a lawyer to a prisoner when they have reasonable cause to believe that it contains an illicit enclosure which the normal means of detection have failed to disclose (Campbell v UK)
The letter should only be opened and should not be read (Campbell v UK)
The letter should be opened in the presence of the prisoner (Campbell)
The letter may only be read if there is reasonable cause to believe that the prisoner is abusing the confidentiality privilege (Campbell v UK)

35
Q

Reasonable expectation of privacy?

A

There is no general right to privacy under common law (Wainwright v UK).
An article 8 action may be brought against a private body for either breach of confidence or misuse of private information. This is possible because the courts, as a public authority under (s 6(3)(a)), would breach their duty to act compatibly with Convention rights (s 6(1)) by not interpreting and developing the common law in accordance with the ECHR (Douglas v Hello)

36
Q

Reasonable expectation of privacy: breach of confidentiality

A

In order for a breach to occur there must be no public interest defence.
Coco v AN Clark sets out three further requirements for an action under the law of confidence:
- The information must be confidential
- It must have been given in confidence
- The use of the information must be unauthorised and harmful to the party imparting it

37
Q

Reasonable expectation of privacy: misuse of private information

A

In order for private information to have been misused:

(1) The victim must have a reasonable expectation of privacy
(2) A balancing of A 8 & A 10 must weigh in favour of A 8

38
Q

Reasonable expectation of privacy: misuse of private information
(1) The victim must have a reasonable expectation of privacy

A

Test set out in Campbell v MGN:
Is the information obviously private?
Private information is personal information that the person would not intend to disclose to the public (Douglas v Hello (No. 3)
If the information is not obviously private would a person with sensibilities find disclosure offensive if placed in the same situation?

There can be no reasonable expectation of privacy where the information is in the public domain (Browne v Associated Newspapers)
An individual can waive their expectation to privacy by placing information in the public domain (Mckennitt v Ash). Note: revealing aspects of personal life does not open up their whole personal life to scrutiny
Photographs taken of a person in public may engage A 8 depending on whether (Murray v Express Newspapers):
Consent was obtained
The photo was taken secretly
The individual is a child
Whether the nature of the activities the engaged in are private or not (Von Hannover (No 1)

There is no reasonable expectation of privacy online, even where attempts are made to conceal one’s identity (The Author of a Blog v Times)
A reasonable expectation of privacy can be forfeited by perjury (Browne v Associated Newspapers)

39
Q

Reasonable expectation of privacy: misuse of private information
(2) A balancing of A 8 and A 10 must weigh in favour of A 8

A

The media will argue for its right to publish guaranteed under A 10
Both parties must justify the interference they propose to make to the other’s right
ECtHR set out five relevant criteria for balancing rights in Von Hannover v Germany (no. 2):
Whether the information is in the public interest
The public’s knowledge of the person and story in question
The previous conduct of the individual
The form and consequences of publishing the information
The circumstances in which the photograph was taking, including whether consent was obtained
The court will then consider whether publishing the information is proportionate (Re S (a child)):
Contends of a public figure’s journal private despite their political nature (HRH Prince of Wales v Associated Newspapers)
A public figure’s sexual activities are private even though they have the potential to engage the public interest in certain circumstances (Mosley v News of the World)
No privacy when doing an essentially public activity, i.e. blogging (The Author of a Blog v Times)

40
Q

When do extra-jurisdictional rights apply? (3 situations)

A

Bankovic v Belgium
Extra territorial jurisdiction can apply in three situations:
- Diplomatic staff abroad
- Effective control of the relevant territory as a result of military occupation
- State’s responsibility engaged because of acts producing effects outside their own territory

Al-Skeini and Other v UK
In a military base abroad + areas that are under UK military control

Smith, Allbutt and Ellis v Ministry of Defence
British person abroad outside

41
Q

2 examples of core public authorities

A

Police - (s 6(1)) as they are a governmental body fulfilling the five criteria set out by Lord Nichols in Aston Cantlow v Wallbank.
Courts and tribunals - s6(3)(a).

42
Q

Examples of when a body is likely to be a hybrid public authority?

A

It receives publically funding (YL v Birmingham CC)
It has been granted special powers by the public authority (Poplar Housing Association v Donoghue)
It is assisting in carrying out a public function or carrying out a public function in lieu of a public authority (R (Weaver) v London & Quadrant Housing)
It is exercising statutory power (YL v Birmingham CC)

43
Q

When will a hybrid public authority not be exercising a public function?

A

Where there is no material distinction between the services provided to privately funded individuals and those funded by a public authority (R (Heather) v Leonard Cheshire Foundation).

44
Q

Case examples for ‘necessary in a democratic society’

A

Handyside v uk, wood v commissioner of pftm, f and thompson v sshd, and marper v uk, quila v sshd

45
Q

Does right to a family life extend to spouses from non-EU countries?

A

Not necessarily (Abdulaziz and Balkandali v UK - can’t bring non-EU husband)

Con & Ad Law (3 decks)

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