Article 8 Flashcards
What are the four ways the article can be engaged?
Private life
Family life
Home life
Correspondence
Home life can be interfered with in what ways?
COUGHLAN v DEVON: moved care homes; breach.
HARROW v QUAZI: cant claim breach if social housing and not paid rent.
HATTON v UK: heathrow.
Family life can be interfered with in what ways?
KROON v NL: family is not just those married.
QUILLA: under 21 licence licence blanket ban, disproportionate so breach.
ABDULAZIZ: spouse immigration; but ultimately declined due to sham marriage.
DICKINSON: insemination; wife of prisoner; blanket ban for breach.
EVANS: his sperm not to be used by ex wife.
ALIEV v UKRAINE: conjugal visits denied; no breach.
How can private life be interfered with?
- IMAGE RIGHTS: VON HANNOVER.
- NO REVIEW: if on list of offenders: THOMPSON (sex offenders) & R v CC MANCHESTER: CRB CHECKS.
- PHYSICAL/MORAL INTEGRITY: DUDGEON (sexuality)/COSTELLO-ROBERTS.
- SURVEILLANCE
- SEARCHES.
How is surveillance a breach?
R (WOOD): excessive cctv.
KHAN: need permission
REGULATORY INVESTIGATORY POWERS ACT: need permission.
When are searched a breach?
WAINWRIGHT: body search into prison.
R (GILLAN): must be a serious interference.
ECHR: GILLAN v UK: possessions searched; breach.
How can correspondence be interfered with?
MALONE: phone bugged; breach.
FOXLEY: mail between solicitor and client.
HALFORD: includes business correspondence.
Specifically for prisoners, how is correspondence governed?
CAMPBELL: can only be opened, not read, if have reasonable cause to believe abusing the privilege.
DALY: must be present during the search.
What are the criteria for a violation of the right to be legal?
- s8(2) PRESCRIBED BY LAW (SUNDAY TIMES: accessible and clear)
Extended by GILAN & QUINTON: how narrowly prescribed is the power. if wide, likely to be a breach.
- NECESSARY IN A DEMOCRATIC SOCIETY (SMITH v GRADY):
Is there a pressing social need?
Was the response proportionate to this aim?
- PURSUANT TO A LEGITIMATE AIM
What are the legitimate aims a violation can be pursuant of listed at 8(2)?
NATIONAL SECURITY: SEGERSTEDT-WILBERG v SWEDEN: disproportionate to have files on every citizen.
PUBLIC SAFETY: ZLYA v NETHERLANDS: deportation satisfied (manslaughter).
ECONOMIC WELL BEING: DE SILVA v NL: denied visa.
PREVENTION OF DISORDER/CRIME: MARPER: keeping DNA & holding indefinitely is a breach/ Wright: list of offenders.
HEALTH AND MORALS: WAINWRIGHT.
RIGHTS OF OTHERS: COPLAND v BBC: no breach. T v BBC: breach; adoption.
Is there a general right to privacy?
No: WAINWRIGHT.
But: DOUGLAS & ZETA v HELLO: breach of confidence tort attached onto a breach of article 8.
There must be a reasonable expectation of privacy; balance 8 & 10.
MURRAY v UK: reasonable expectation: JK.
BROWNE v ASS. NEWSPAPERS: lied about meeting BF; not given reasonable expectation.
RE S: STEYN: neither article takes precedence, should focus on comparative importance of each fact, the justification for interference and proportionality.
