Article 8 A03 Flashcards
What are the 4 WDP’s for Article 8
-qualified right
-family and private life
-conflict with Article 10
-Investigatory Powers Act 2016
+P1: Qualified right
Fair and flexible whilst still protecting the right as the state can only interfere for a legitimate aim in Art8(2) such as public safety = justified and practical
+DP1: R v Brown
restriction of sadomasochistic activities = no violation of Article 8 - justified to protect health and morals and prevent ABH and GBH, however it can be viewed as a restriction of individuals autonomy, but the rights of the community were favoured
+WDP1: living instrument principle =
rational, allows the law to evolve → Gillick WNHA modernised the law and struck a fair balance between individual and community rights
+P2: ECtHR gives a wide inclusive definition to
family - evolved to match modern societal change e.g: inclusion of same-sex couples Schalk v Austria
+DP2: private life definition also
wide and inclusive, accounts for both physical and psychological needs - Botta v Italy, also includes gender identity, Gender Recognition Act
+WDP2: Police searches under s.60 of the Criminal Justice and Public Order Act
having to be authorised by a senior officer with a legal basis ensures individual rights to a private life are upheld which is justified
-P3: A v B(Flitcroft) highlighted
the tension between Art 8 and 10 and how the courts need to effectively balance the conflicting interests creating a level playing field which is fair
+DP3: justified that the courts often side with Art 8 for celebrities over newspapers like
Campbell v MGN where it was fair and just that it was a violation to publish Campbell attending a drug rehabilitation centre as this is not in her best interest or the publics interest
+WDP3: the courts hold children’s safety of paramount importance as seen in
Murray v Express which ensures that children are protected regardless of celebrity status which is just and reasonable, promoting equality
-P4: Investigatory Powers Act 2016
ustified for public policy and national security reasons, however extensive surveillance powers are controversial as it appears the govt have unprecedented disproportionate power
+DP4: however, the Data Retention & Acquisition Regulations 2018
were passed in response to these criticisms which restricted and tightened these powers which upholds Art 8
+WDP: This introduced a new level of independent oversight which
creates a more effective balance between individual right and public safety, forming safeguards to protect the public
