Article 8

Question 1

What does Article 8 protect?

Answer 1

Privacy, family life, home life, and correspondence

Question 2

Is Article 8 an absolute or qualified right?

Answer 2

Qualified

Question 3

What steps need to be met to warrant limiting Art 8?

Answer 3

Any limitation should be prescribed by law, pursuant of a legitimate aim, which is necessary in a democratic society.

Question 4

What legitimate aims are given in Art 8(2) that may limit the right to privacy?

Answer 4

1. National security
2. Public safety
3. Economic well-being of the country
4. Prevention of disorder or crime
5. Protection of health and morals
6. Protection of rights and freedoms of others

Question 5

What is the test used to determine whether a limitation on Art 8 is in accordance with law?

Answer 5

Does the limitation have a legal basis? Is the statutory provision clear and accessible? (Sunday Times v UK)

Question 6

What did the courts consider came within the definition of privacy in the case of Costello-Roberts v UK?

Answer 6

physical and moral integrity

Question 7

How did the courts extend the meaning of privacy in the case of Von Hannover v Germany?

Answer 7

They extended privacy to include a person’s name or picture and a ‘zone of interaction … with others, even in a public context.’ Abuse of a person’s identity of zone could engage Art 8.

Question 8

Which case imposes a positive obligation on the state to protect peoples’ right to privacy?

Answer 8

Osman v UK

Question 9

What was held to be ‘a continuing interference with the applicant’s right to respect for private life’ in the case of Dudgeon v UK?

Answer 9

Criminal prohibition on homosexual conduct between consenting adults.

Question 10

What was the conclusion of the ECtHR in Smith & Grady v UK?

Answer 10

The ban on homosexuals from the armed services, although pursuant of a legitimate aim ie national security, was not necessary in a democratic society.

Question 11

What provisions did the courts have to consider as a possible breach of Art 8 in R (Gillan) v Commissioner of Police of the Metropolis?

Answer 11

Stop and Search powers under ss44-47 Terrorism Act 2000.

Question 12

What was Lord Bingham’s conclusion in R (Gillian) v Commissioner of Police of the Metropolis?

Answer 12

Searches would have to reach a level of seriousness and an ordinary superficial search could not be regarded as violating Art 8.

Question 13

What did the ECtHR decide in Gillan and Quinton v UK?

Answer 13

Stop and search orders had inadequate legal safeguards against abuse.

Question 14

How did the claim succeed in Wainwright v UK?

Answer 14

The strip searches were prescribed by law (Prison Act 1952) and in pursuit of a legitimate aim, but the searches were not considered proportionate to the aim of preventing crime.

Question 15

How was Art 8 engaged in Khan v UK?

Answer 15

The police had installed listening devices in the claimant’s hotel room.

Question 16

Did the claim succeed in Khan v UK?

Answer 16

Yes, the police’s surveillance was conducted without a warrant and so it was not done in accordance with the law.

Question 17

What was held to engage Art 8 in R (Wood) v Commissioner of Police of the Metropolis?

Answer 17

Retention of police photographs of a peaceful demonstrator beyond a reasonable time when it was apparent the claimant would not commit a crime. This was considered disproportionate.

Question 18

What is meant by ‘family’ in Kroon v Netherlands?

Answer 18

The ECtHR did not limit ‘family’ to marital relationships.

Question 19

What were the claimants not able to do in Abdulaziz, Cabales and Balkandali v UK?

Answer 19

Bring their non-EU husbands into the UK to reside.

Question 20

What was a violation of the claimant’s rights in Quila v SSHD?

Answer 20

Ban on under-21s marriage visas.

Question 21

What was the Home Secretary’s argument in Quila? Why did the court dismiss it?

Answer 21

The ban had a legitimate aim of dissuading forced marriages. The court found that it disproportionately effected those in unforced marriages.

Question 22

What were the two competing arguments in Evans v UK? Which did the court side with?

Answer 22

The appellant argued that the State should protect her right to have a baby. Her former partner argued that he had a right not to have a genetically-related child with her. The court felt bound to protect the former partner’s right over the appellants rather than impose a positive obligation on the State.

Question 23

What engaged Art 8 in the case of Dickson v UK?

Answer 23

Ban on artificial insemination facilities preventing a life prisoner from having a child with his wife.

Question 24

What was the claimant denied in Aliev v Ukraine? Why?

Answer 24

Conjugal visits were prohibited for the prevention of crime.

Question 25

Does Article 8 grant a right to be provided a home?

Answer 25

No, it grants respect for home life and restricts invasion or interference with home life.

Question 26

What was the breach in R (Coughlan) v North and East Devon HA?

Answer 26

The appellant was moved from her home despite a promise that she wouldn’t be moved. She was paraplegic and had grown accustomed to her home. The move was emotionally distressing and anti-therapeutic.

Question 27

Which case overturned the decision in Harrow LBC v Qazi that Art 8 could not be used as a defence against eviction from social housing?

Answer 27

Manchester City Council v Pinnock

Question 28

What test was put forward in Manchester City Council v Pinnock?

Answer 28

Proportionality

Question 29

Why were Manchester City Council seeking a possession order against Mr. Pinnock?

Answer 29

His children were repeatedly committing crimes in the vicinity.

Question 30

Does Art 8 also apply to interferences of home life such as noises, smells, and other nuisances?

Answer 30

Yes

Question 31

In which case did the appellant demand that the State reduce the noise levels of Heathrow airport as it infringed on his home life? Was he successful?

Answer 31

No, the noise was allowed within the margin of appreciation (Hatton v UK).

Question 32

What was held to a breach of Art 8 in Malone v UK? Why?

Answer 32

Interception of post and telephone calls by the police, because the actions were not in accordance with law, which was unclear as to its scope and discretion of public authorities.

Question 33

In Foxley v UK mail was intercepted between the claimant and his solicitor. Despite lawful justification (Insolvency Act 1986) why was the act not in accordance with law?

Answer 33

The intercepts continued after the order had expired.

Question 34

What was held to engage Art 8 in Halford v UK?

Answer 34

Interception of telephone calls from a business premises.

Question 35

Which case confirms that monitoring emails and internet usage by a public employer was in breach of Art 8?

Answer 35

Copland v UK

Question 36

What did the ECtHR hold in Campbell v UK?

Answer 36

Prisoner’s correspondence can only be opened by authorities when there is ‘reasonable cause’ it contains illicit enclosure which has failed to be detected by normal means. The letter may only be opened, not read, and it should be done in the presence of the prisoner. The letter should only be read if there is reasonable cause to believe the right is being abused.

Question 37

What was the breach in R (Daly) v SSHD? Why did Lord Bingham regard this as a breach of the right to confidentiality?

Answer 37

A blanket policy to search prisoners’ cells in their absence was considered a violation against a person’s right to confidentiality because correspondence with their legal advisors could be checked and it could inhibit prisoners from divulging to their solicitors. The policy was considered disproportionate.

Question 38

In which case was it held that storing personal data relating to a person’s political opinions, affiliations and activities was not justified in the name of national security?

Answer 38

Segerstedt-Wilberg v Sweden

Question 39

What limitations upon the defendant in SSHD v AP were not justified by national security?

Answer 39

Anti-terrorism control order imposing a 16 hour curfew and the requirement to live 150 miles away from his family.

Question 40

Which case illustrates public safety is a legitimate aim in limiting Art 8(1)? What were the facts?

Answer 40

A Turkish national had his permanent residence taken away after he was convicted of manslaughter (Ziya Uner v Netherlands).

Question 41

What was the legitimate aim argued in Da Silva v Netherlands? Did the court agree?

Answer 41

The Netherlands argued that Da Silva (a Brazilian) was not allowed a residence because she worked illegally and did not pay taxes, and was a burden on the economic well-being of the country. The court disagreed. Da Silva had a child, who had Dutch nationality and to deport her would breach her right to family life.

Question 42

What was justified for the prevention of crime in R v CC South Yorkshire, ex parte LS?

Answer 42

Retention and use of fingerprints and DNA samples after suspects had been cleared of the offence for which the samples had been taken.

Question 43

In which case did the ECtHR challenge the judgment in R v CC South Yorkshire, ex p LS?

Answer 43

The ECtHR said the blanket policy of retaining all fingerprint and DNA evidence was disproportionate (S and Marper v UK)

Question 44

What two legitimate aims did the authorities argue made strip searching justifiable in Wainwright v UK?

Answer 44

1. Prevention of crime

2. Protection of prisoners’ health

Question 45

What was the authorities’ argument in Copland v UK?

Answer 45

Monitoring telephone calls, emails and internet usage during work at a public authority was necessary to protect the rights of others.

Question 46

What did the BBC argue should be protected over a person’s private life in T v BBC? Did the court agree.

Answer 46

Freedom of expression. The court held the claimant’s right to privacy outweighed the BBC’s rights in this case.