Article 8 Evaluation Flashcards
I- What is Article 8?
The right to respect for family, private life, home and correspondence.
I-Proportionality
Balance between individual and community.
I-Margin of appreciation
Amount of discretion the ECHR will give state.
I-Living instrument principle
State has positive obligation to review law and change if necessary.
I-Living instrument principle case
Sheffield
I-Qualified right
Limited in certain circumstances set out in Art8(2)
I-What must limitations be ?
In accordance with law
Meet legitimate aims
Necessary in democratic society
I-Legitimate aims
Protection of national security
Public safety
Prevention of disorder or crime
Rights of freedoms of others
I-When is ART8 restricted?
When state security and ART10 are prioritised.
Family Life A01
Includes various types of family relationships.
Right of a child will always be paramount.
Removing a child from family needs to be proportionate.
Removing a child from family needs to be proportionate case
Johansen
Family life A03 Positive
Wide definition and under living instrument so recognise families take different forms.
Right seen as important so protected.
HRA principles of Human dignity and freedom are protected.
Recognise families take different forms example
Same sex marriages
Right seen as important so protected
Johansen
Family life A03 negative
Having boyfriends did not stop uk refusal of application of two woman living in the Uk illegally.
State has power to take children which the ECHR does not intervene with.
refusal of application of two woman living in the Uk illegally case
agyrako
Private life A01
Includes photographic images and personal data.
Includes phone conversations.
Includes Medical records.
Photographic images and personal data
Gillian
Phone conversations
Halford
Medical records
Axon
Private life A03 positive
Wide definition lots of protection to individuals.
Many of Uk and ECHR cases protect right and are quick to find a violation.
Acts of parliament protect the right.
Acts of parliament protect the right
Axon
Data protection
What does Axon protect?
Medical data
What does Data protection protect?
Personal data
Private life A03 Negative
Cases highlight there could still be an improvement.
Celebrities have benefited more than the public.
What case highlights private life could be improved?
Marper
What happened in Marper?
DNA samples held by police of people never charged with offence.
Correspondence A01
Includes telephone conversations, text, email.
Investigatory powers act 2016 allows state hacking and surveillance for public safety.
Investigatory powers act 2016 example
Snoopers charter
Correspondence A03 Negative
Investigatory powers act 2016 allows hacking and surveillance which is deemed as a breach of Art8.
GCHQ monitor millions of communications and share with USA.
ECHR rarely intervene.
Correspondence A03 Positive
Effectively balances rights between individuals and the way community deals with correspondence.
Access items by using 3 requirements in Art8(2)
Strict uk laws argue need to protect from potential terrorists.
What are the three requirements in Art8?
In accordance with law
Meet a legitimate aim
Necessary in a democratic society
Accordance with law example
Data protection
Accordance with law case
Germany
Meet a legitimate aim example
National security
What does it mean for something to be necessary in a democratic society?
Proportionate
Margin of appreciation
What did Lord Walker say about family life?
Words are unclear so rights developed from article could be seen as ‘volatile and abstract’
How is private life established?
On a case law basis so key areas can be set out.
Case law basis case
Pretty
No general right to privacy case
Peck
Celebrities have benefited more than the public case
Campbell
Many of UK and ECHR cases protect right and are quick to find a violation case
Handyside
National security A01
IPA
Wide scope
IPA scope
Snooper’s charter
National security A03 Positive
State is able to protect from terroritsts.
State is able to protect from terrorists case
Ripper
National security A03 Negative
Rarely intervene
Too much power to state
Failed to take into account the discriminatory impact of facial recognition.
Wide national security leaves citizens not properly protected.
Failed to take into account discriminatory impact of facial recognition case
South Wales
Private life case
Cliff Richard
Cliff Richard case
Judge realised the situation was one of ‘public concern’ but the individual was still given reasonable expectation to privacy.
Judgement of private life
Law does effectively balance rights of the individual and those in community in relation to media stories about celebrities
