Chapter 11: ECHR Article 8 Flashcards
- Introduction
The key objective of article 8 ECHR is to protect individual citizens against arbitrary interference in their private life. The idea is that, as human beings, we should have freedom and autonomy to be allowed to lead and improve our lives, to fulfil personal aims and ambitions, and to develop our individuality. This is clearly a broader concept than the more specific protections against death,
harm and unlawful detention, discussed in previous chapters.
Article 8(1)
Declares that the state must respect each person’s private and family life, their home and correspondence.
Four very broad protected interests
Are distinct ideas, although they overlap in various situations. These freedoms can be restricted, however, as article 8 is a ‘qualified’ right. In accordance with para 8(2), the state is able to interfere with these rights but only where the interference is ‘in accordance with the law’, is pursuant to one of the legitimate aims set out in 8(2) and is ‘necessary in a democratic society’.
The structure of Article 8 is as follows:
Article 8(1): Is article 8 engaged?
Article 8 will be engaged if the state has interfered with a person’s right to respect for their
private life, family life, home, or correspondence.
Article 8(2): Can the state justify the interference? (Article 8 is a qualified right)
The interference must be:
- In accordance with the law’ ie PBL? (Sunday Times test);
- In pursuit of a legitimate aim (refer to the list in article 8(2));
- Necessary in a democratic society ie proportionate
1.1 ‘Necessary in a democratic society’
It is important to note that the principle of proportionality is infused into the jurisprudence of the ECtHR. In Soering v UK, the court stated: ‘[I]nherent in the whole of the Convention is a search for
a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.’
Direct application of this principle
The phrase ‘necessary in a democratic society’, common to the qualified rights, represents the
most direct application of this principle. In the case of Handyside v UK (1976) 1 EHRR 737, the ECtHR held that interferences will be considered necessary in a democratic society if they
answer a pressing social need and are proportionate to the legitimate aim pursued.
- Private life
Article 8 will be engaged if a person can show that there has been an interference with their private life. The categories of private life in article 8 are not closed, nor are they clearly defined.
The Convention is a ‘living instrument’ and the concept of ‘private life’ has been given a wide meaning by Strasbourg.
Costello-Roberts v UK (1995) EHRR 112
Physical and moral integrity
The court considered that ‘private life’ covered a person’s ‘physical and moral integrity‘. Costello-Roberts was a young boy at boarding school who had been given corporal punishment. He argued a breach of articles 3 and 8. The court found that the
actual punishment did not amount to a breach of article 3. It also asked whether the punishment
represented sufficient interference with his ‘physical and moral integrity’ to engage article 8 but found against him on this point too
Von Hannover v Germany (2004) 40 EHRR 1
The ECtHR stated that article 8 extended to
aspects relating to personal identity, such as a person’s name or a person’s picture and could cover a ‘zone of interaction of a person with others, even in a public context’. (This case is
discussed further in the next section.)
2.1 Human dignity; right to die
McDonald v UK [2014] ECHR 492
The issue was whether the applicant’s dignity had
been respected when her local authority decided to reduce the level of night-time assistance she
received as part of a disability care package. The ECtHR re-stated its position that the ‘very essence‘ of the Convention was respect for human dignity and freedom, and it accepted that the distressing implications of the reduction in her care package impinged on this right.
Wide margin of appreciation
However, it reaffirmed that states have a particularly wide margin of appreciation in matters relating to
allocation of resources and did not consider that the circumstances were compelling enough to
amount to a violation of article 8.
R (Nicklinson) v Ministry of Justice [2014] UKSC 38
The applicant had become paralysed following a severe stroke. He wanted the court to make a declaration that it would be lawful for a doctor to assist him in ending his life or, in the alternative, that the state of UK law was
incompatible with his rights to a private life and autonomy under article 8
Majority of Justices
The majority of the
justices took a cautious line, concluding that the compatibility question involved a consideration
of issues which Parliament is inherently better qualified than the courts to assess, and therefore that the court should respect Parliament’s assessment in the current situation. They declined to
make a declaration.
2.2 Sexual orientation
Sexual orientation and fulfilment are bound up with the respect for private life. This is not only
relevant to discussions of people’s privacy at home, but also to people’s rights to privacy in the workplace
Dudgeon v UK [1982] 4 EHRR 149
A large majority of the ECtHR held that the criminal
prohibition on gay conduct between consenting adults in private, existing at that time in Northern
Ireland: […] constitute(d) a continuing interference with the applicant’s right to respect for private life
(which includes his sexual life) within the meaning of Article 8(1).
ADT v UK (2001) 31 EHRR 33
Held that consensual sexual activity between five adult
men in the applicant’s home was a matter of private sexual behaviour protected by article 8 and criminalisation of such activity under UK law was a breach of their right to respect for private life.
2.3 Gender recognition
Bellinger v Bellinger [2003] UKHL 21
The law lords made a declaration of incompatibility in respect of s 11(c) of the Matrimonial Causes Act 1973 because it made no provision for the recognition of gender reassignment and was therefore deemed incompatible with
articles 8 and 12.
R (C) v Secretary of State for Work and Pensions [2017] UKSC 72
The Supreme
Court was asked to decide whether the Department of Work and Pensions’ (DWP) policy of retaining information relating to reassignment of gender on its ‘Customer Information System’ database represented a proportionate interference with the individual’s article 8 rights.
Proportionate Policy
It concluded that the interference with the right to a private life of transgender people in C’s
position was very significant. However, the provision of safeguards in limiting the access of
frontline DWP staff to the database records, combined with the notable complexities and expense
of running a national information system, for which leeway should be given to the government,
meant that the policy was ultimately seen as a proportionate one
2.4 Searches of the person
Prima Facie Interference
Individuals are often required to submit to a personal search of the body and their belongings,
whether by police officers or security guards when entering public buildings or at airports. Are such searches a prima facie interference with the right to respect for private life?
R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12
The House of Lords held
that the stop and search powers in the Terrorism Act 2000, ss 44–47 were not incompatible with Article 8, and that an ordinary superficial search of the person and an opening of bags, of the kind to which passengers generally uncomplainingly submit at airports, did not amount to a violation of article 8.
ECtHR as Gillan and Quinton v UK [2009] ECHR 28
However, when the case was taken to the ECtHR as Gillan and Quinton v UK [2009] ECHR 28 (considered with reference to the ‘PBL’ test in the chapter on article 5), the court held that article
8 was engaged.
Insufficient safeguard in domestic legislation
There were insufficient safeguards in the domestic legislation to protect the individual against arbitrary interference with their article 8 rights. The stop and search powers were not, therefore, ‘in accordance with the law’ and it followed that this had enabled violations of article 8.
2.5 Surveillance by the State
Khan v UK (2001) 31 EHRR 1016
Where the police had
installed a hidden listening device in a hotel and obtained a recording of the applicant discussing
a drugs deal. At the time of the investigation and trial there was no legislation in the UK governing the use of such apparatus by the police.
Surveillance measure in accordance with law
The ECtHR asserted that the use of surveillance
measures would only be ‘in accordance with the law‘, for the purposes of article 8(2), where a clear statutory framework existed. As this was not the case, there had been an unlawful
interference with the applicant’s right to respect for his private life.
Regulation of Investigatory Powers Act (RIPA) 2000
Since the events in the Khan case, the Regulation of Investigatory Powers Act (RIPA) 2000 has been passed, which provides a clear test for whether state surveillance is legal or not. Authority must be obtained for the carrying out of covert surveillance, and this must take into account
‘necessity’ and ‘proportionality’.
R (Wood) v Commissioner of Police of the Metropolis [2009] EWCA Civ 414
The retention of
police photographs of a peaceful demonstrator, who was a member of the Campaign Against Arms Trade, was held to engage article 8. Moreover, the retention of the photographs beyond a
reasonable period of time, when it had become apparent that he had not committed any crime in
relation to the event he was protesting about, was seen to be disproportionate and hence a breach of his article 8 rights.
Wilson v Metropolitan Police Commissioner IPT/11/167/H (30 September 2021)
The case of Wilson v Metropolitan Police Commissioner IPT/11/167/H (30 September 2021) involved a far greater degree of state surveillance with significant consequences.
As part of an undercover surveillance operation, Mark Kennedy, a police officer, infiltrated
environmental and political activist groups who met at the Sumac Centre in Nottingham. He ended up entering into sexual relationships with several of the women, one of whom was Kate Wilson, without revealing his true identity.
Investigatory Powers Tribunal
Argued that
several of her protected rights under article 3, 8, 10, 11 and 14 had been violated. The respondent
admitted violations under articles 3, 8, and 10. The Tribunal found that there had been violations
under all of the pleaded articles. With respect to article 8, it held that the infringements to Kate
Wilson’s private and family life under article 8 went beyond the concessions made by the respondent and were disproportionate.
Regulation of
Investigatory Powers Act 2000 (RIPA) scheme
Which governed the police operation, were not in
accordance with the law: their breadth and open-ended quality failed to provide a limit on the
undercover officer’s activities. Notwithstanding the Tribunal’s decisions and that it was critical of
aspects of the RIPA scheme, it did not ultimately find that the scheme itself was incompatible with
Convention rights.
- Family life
Respect for family life as a broad concept
Article 8 will be engaged if a person can show that there has been an interference with their family life. The right to respect for family life will be important in cases and disputes involving spouses, partners and children. It is important to note that ‘family’ in Convention terms is a broad concept; it is not restricted to the traditional family unit. The object life is living together in order
that family relationships can develop normally, and family members can enjoy one another’s company.
Kroon v Netherlands (1995) 19 EHRR 263
Demonstrates that the word ‘family’ in article
8 is not limited to relationships dependent on marriage. In that case, a child was born to a stable
relationship between Mrs Kroon and Mr Zerrouk while Mrs Kroon was still married to Mr Kroon. Under Dutch law, it was impossible to obtain recognition of the biological father’s paternity unless the husband denied paternity. The applicants complained of a violation of article 8.
The court said
The Court recalls that the notion of “family life” in Article 8 is not solely confined to marriagebased relationships and may encompass other de facto “family ties” where partners are living together outside marriage.
3.1 Family life - immigration cases
Decisions by states to expel a person from a country or refuse to admit someone, may result in the separation of spouses or partners, or of parents and children. Although the Convention does not recognise a right to reside in a particular country, any action by a public authority that might
disrupt the family unit may engage article 8.
Abdulaziz, Cabales and Balkandali v UK (1985) 7 EHRR
Where the three
women applicants, who had lawfully settled in the UK, had subsequently married husbands from their countries of origin.
Not extending to general obligation
The court held that the duty imposed by article 8 could not be considered as extending to a general obligation on the part of the state to respect the choice by married couples of their
country of matrimonial residence and to accept non-national spouses for settlement in that
country.
Quila v Secretary of State for the Home Department [2011] UKSC 45,
The Supreme Court held
that a ban contained in the Immigration Rules on the grant of marriage visas, where either party
to the marriage was under 21 years old, breached the right to family life guaranteed by article 8.
The Home Secretary had argued that the raising of the age limit from 18 to 21 was justified on the
basis that it sought to prevent forced marriages.
Disproportionate impact
Although the Immigration Rules were found to pursue the legitimate aim of protecting those who
might be forced into marriage, it was held that the interference with the right to family life was not
‘necessary in a democratic society’. The Supreme Court found that the interference
disproportionately impacted on a greater number of unforced marriages than forced marriages. The ban did not, therefore, achieve the legitimate aim by way of the least intrusive means.
R (Johnson) v Secretary of State for the Home Department [2016] UKSC 56
The Supreme Court
found in favour of the appellant as they considered that his liability to deportation, by reason of
the accident of his birth outside wedlock, was unlawfully discriminatory in breach of rights under
article 14, read together with article 8.
