Articles 8 and 10 Flashcards
What is the key objective of Art 8 and the four protected interests?
(Family life)
To protect individual citizens against arbitrary interference in their private life
1. Private life
2. Family life
3. Home
4. Correspondence
Broader concept than earlier protections i.e. death and torture
Is Art 8 an absolute, limited or qualified right?
Qualified
What is meant by a qualified right?
State is able to interfere with right but only where interference is:
1. In accordance with the law
2. Pursuant to one of the legitimate aims
3. Necessary in a democratic society
What does it mean for proportionality to be key to the idea of ‘necessary in a democratic society’?
Fair balance between general interest of community and requirements of protection of individual’s fundamental rights
When will interferences be considered necessary in a democratic society?
If they answer a pressing social need and are proportionate to the legitimate aim pursued
What does ‘private life’ under Art 8 cover?
- Physical and moral integrity
- Personal identity
- Human dignity
Will reduction in medial assistance constitute a breach of human dignity under Art 8?
Potentially - subject to the wide margin of appreciation re allocation of resources
Does the right to die come under Art 8?
Unanswered (Nicklinson) - issue for Parliament to assess
Is sexual orientation under Art 8 protected only in private homes?
No - sexual orientation is covered by people’s right to privacy in the workplace too
Are searches - police officers, security guards, airport staff - a prima facie interference with right to private life?
Only if stop and search powers have insufficient safeguards and are not in accordance with the law
Search powers generally - i.e. airport bag searches - not breach
When will state surveillance breach right to private life?
When it is not in accordance with a clear statutory framework
Can police photographs be retained so as to not breach Art 8?
Yes - especially if retained beyond a reasonable period of time where it had become apparent subject had not committed any crime
Is the right to private family life confined to the traditional family unit?
No - comprises living together in order that family relationships can develop and members can enjoy one another’s comany
Not confined to marriage-based rships - but ‘de facto’ ties too
AKA partners living together outside of marriage
Will Art 8 be engaged in immigration cases to accept non-national spouses (to state residents) into the country?
I.e. lawfully settled UK citizen subsequently marries someone from country of origin - can the duty imposed by Art 8 extend to obligation on state to respect choice of country for matrimonial residence?
No - Art 8 does not extend to general obligation on state to accept non-national spouses for settlement in country
Will rules designed to pursue legitimate aim always be safe from breaching the right to family life?
E.g. banning marriage visas where either party under 21 to prevent forced marriages
No - can breach Art 8 where interference is disproportionately impactful (meaning won’t be necessary in democratic society); must achieve aim by least intrusive means
The marriage visas ban was impacting on a greater number of unforced marriages than forced marriage - ban was not achieiving legitimate aim ny least intrusive means
What happens where rights under Art 8 clash?
Evans - two former partners:
* One complained that domestic law allowed the other to withdraw consent to use by her of embryos created jointly by them (right to family life)
* Other complained that going ahead with treatment without consent - making him a parent against his will (right to private life)
Country is under a positive obligation to protect rights through enacting legislation (even if dispute is between individuals) - and legislation must be balanced
Applicant’s right to respect for decision to become a parent should not be accorded greater weight than her former partner’s right to respect his decision not to have genetically-related child with her - legislation appropriately balanced
As well as the idea that a person’s home should be protected from invasion/intrusion, what does the protected interest of home extend to?
Maintaining the situation to which a person has become accustomed
Coughlan - health authority went back on promise not to move a paraplegic woman who had become accustomed to her adapted residence - breached Art 8
Will warrants and (unannounced) visitis for monitoring purposes breach Art 8?
Only if they are overly frequent and can disclose private information about an offender to neighbours - otherwise policy designed to achieve legitimate aim of protecting rights of vulnerable people
Will the quality of an individual’s home life fall under Art 8?
E.g. smell, noise, leaking of waste
Yes - but subject to margin of appreciation
Although quality might not be reduced by public body - e.g. noise from airports taking off - the state has positive obligation to manage it to protect rights
What is covered by the protected interest of ‘correspondence’ under Art 8?
Lettes, email, texts, and other modern forms of communication
Will the monitoring by an employer of emails and internet usage engage Art 8?
Yes
Can prison authorities open a letter from a lawyer?
Only if they have reasonable cause to belive it contains an illicit enclosure which normal means of detection could not disclose
Can prison authorities read a letter to a prisoner if they open it?
Only in exceptional circumstances when authorities have reasonable cause to belive privilege is being abused
If a letter must be opened, what should be provided by prison authorities?
Suitable guarantees preventing the reading of the letter e.g. opening letter in presence of prisoner