HR III - Articles 8 and 10 - Consolidation MCQs Flashcards
Which of the following statements best describes the scope of the protection given to “private life” under article 8 ECHR?
The right to private life has been definitively classified as covering the following interests: physical, mental, and moral integrity; sexual orientation; gender recognition; searches of the person and surveillance by the state.
Private life is a broad and evolving concept which covers a variety of interests and human characteristics, including a person’s physical, mental, and moral integrity.
The right to private life is the only one of the four protected interests under article 8 which is applied in absolute terms by the ECtHR.
The right to private life solely concerns the right to privacy with respect to searches of the person and surveillance in its many forms by the state.
The concept of private life has been given a fixed meaning by the ECtHR which can be described as relating to a person’s physical, mental, and moral integrity.
Private life is a broad and evolving concept which covers a variety of interests and human characteristics, including a person’s physical, mental, and moral integrity.
Correct. This statement accurately reflects the nature and scope of ‘private life’ under article 8 and provides an example of one of the categories that is protected under private life.
You are acting for a client who is serving a prison sentence. He has recently discovered that the letters you send to him and the letters he sends to you are being opened and read by prison officers. He is worried about this, as you are advising him on an appeal against a recent conviction for assaulting one of the prison officers. When he asked a prison officer about the opening of his letters, he was told: ‘The Governor has told us that we can read your letters. You’re trouble and she wants to know what you’re up to’. You discover that, in principle, the Governor does have the power to open letters in accordance with policy issued under the relevant statutory framework.
Which of the following statements represents the best advice to your client in challenging the opening of his letters, in relation to article 8 ECHR?
The client will not be able to successfully challenge the opening of his letters because the facts indicate that this interference with his correspondence by the prison authorities is in accordance with the law.
There is good merit in a challenge because the courts have found that a high degree of protection applies to prisoners’ communications with their legal advisors. Privileged legal correspondence should only be opened where there is reasonable cause to believe it contains a prohibited item, and letters should only be read where the authorities have reasonable cause to believe that the legal privilege is being abused. There is nothing to suggest that these circumstances apply to the client.
It is unlikely that the client can successfully challenge the decision to open and read his letters because the courts allow a wide discretion to public authorities to decide what amounts to a proportionate mechanism to achieve a legitimate aim.
There is little merit in a challenge against the governor’s decision to open and read the client’s letters because it is likely that a court would find such an interference to be proportionate with the legitimate aim of the prevention or disorder of crime, particularly as the client was convicted of an offence that happened whilst he was in prison.
There is good merit in a challenge because the courts have found that a high degree of protection applies to prisoners’ communications with their legal advisors, and privileged legal correspondence cannot be opened in any circumstances.
There is good merit in a challenge because the courts have found that a high degree of protection applies to prisoners’ communications with their legal advisors. Privileged legal correspondence should only be opened where there is reasonable cause to believe it contains a prohibited item, and letters should only be read where the authorities have reasonable cause to believe that the legal privilege is being abused. There is nothing to suggest that these circumstances apply to the client.
Correct. This statement accurately reflects the ECtHR’s position in Campbell v UK, that the opening of prisoners’ privileged legal correspondence will be a disproportionate interference, unless the particular circumstances identified in Campbell apply. Refer also to the domestic case of Daly.
You see a new client, an author, who has written a book about a far-right political group. The publishing company has told him that it has been banned from releasing the book because the Home Office considers that it disseminates and endorses unacceptable views held by the organisation. The organisation has called for direct action against some migrant communities in the UK, and it has increasingly engaged in organised violent protests. Further, the client has just found out that he has been charged with a criminal offence on similar grounds.
Your client is shocked. He tells you that he is a well-known, respected journalist and he has no affiliation to the group or its ideas. On the contrary, he wrote the book to try to expose the offensive nature of the group’s views, although this necessarily involved setting out those views in order to criticise them.
Which of the following statements represents the best advice to your client on the prospects of challenging the book ban, and any prosecution, under article 10 ECHR?
The client has good prospects of success as the ECtHR has made it clear that article 10 is capable of protecting expression that offends, shocks, or disturbs.
If it can be demonstrated that the client’s book is a work of proper, critical journalism which, whilst discussing and evaluating the group’s views, does not propound or endorse them, there is a reasonably good prospect that a court would find that the authorities’ measures are a disproportionate interference with his right to the freedom of expression.
The client has a very good prospect of successfully challenging the state’s measures because the courts will never find that such measures are proportionate in the context of journalistic freedom of expression.
The client’s prospects are poor because the courts have found that the right to freedom of expression cannot be used to protect views which are themselves, fundamentally incompatible with the Convention.
Even if the client can show that his book is a work of proper, critical journalism, it is unlikely that the measures will be found to be disproportionate because courts afford broad discretion to state authorities to decide what measures against journalists are necessary in order to achieve a legitimate aim.
If it can be demonstrated that the client’s book is a work of proper, critical journalism which, whilst discussing and evaluating the group’s views, does not propound or endorse them, there is a reasonably good prospect that a court would find that the authorities’ measures are a disproportionate interference with his right to the freedom of expression.
Correct. This statement is largely analogous with the ECtHR’s approach in Jersild v Denmark. The domestic courts and the ECtHR have recognised that journalistic freedom of expression should be afforded a higher degree of protection than some other areas which do not contribute to credible public debate.
A story concerning a former Cabinet minister and now member of the House of Lords has been published in a national newspaper. It reveals that he is the father of a child, now 12 years old, who has a severe genetic condition requiring her to have constant care and medical attention. The child was born as a result of an extra-marital affair he had at the time, which he has kept from the public eye. The story alleges that he has ignored the child and her mother completely since the pregnancy and has not paid anything towards the child’s care. The child’s mother has not cooperated in the disclosure of the story and, so far, the newspaper has not disclosed her or her child’s identity, though it is saying it will do so. The former minister wishes to obtain an injunction against any further publication of details relating to the child (and further indicates that he intends in due course to sue the newspaper for damages).
Which of the following represents the best advice in relation to his case for obtaining an injunction against further publication?
As a child is involved, the court will find in favour of the former minister and protect his article 8 rights. It will grant an injunction against any form of future publication on the matter.
Section 12(4) of the Human Rights Act requires that priority be given to freedom of expression over all other rights, as it refers specifically to the ‘particular regard’ that must be paid to freedom of expression. Therefore, it is highly unlikely that the former minister would achieve any success in his legal actions.
The court is likely to consider that although the story may be considered to be in the public interest because the former minister is a significant public figure, in relation to the further information about the mother and child, it is likely that an injunction may be granted in order to protect the privacy of the child in particular.
The minister has no reasonable expectation of privacy because he has performed, and continues to perform, a public function. His behaviour has fallen below that which expected of a public servant. His application for an injunction is therefore likely to fail.
It is unlikely that the court will grant any form of injunction to the former minister, as this is a discretionary measure only awarded in the most deserving of cases.
The court is likely to consider that although the story may be considered to be in the public interest because the former minister is a significant public figure, in relation to the further information about the mother and child, it is likely that an injunction may be granted in order to protect the privacy of the child in particular.
This is the best answer. The courts will pay special attention to the privacy rights of children, as indicated in cases such as Murray v Express and Re S (A child).
A prisoner, who is serving a sentence for armed robbery, wishes to have a baby with his long-term partner, using artificial insemination. The prison governor has agreed, after fully reviewing the case. The independent regional TV news channel for the couple’s hometown has discovered from a source in the prison that this is about to happen. They approach his partner, asking for comments from her and ‘justification’ for why this should be allowed. It is apparent that they have filmed her and her house and that they will shortly broadcast the material and the information as a five-minute feature on local news.
Which of the following represents the best advice to her if she seeks advice on attempting to restrain the story in the interests of protecting her and her partner’s privacy?
She would have minimal prospects of success as the fact that her partner has been convicted of a violent crime means that he has in reality forfeited any rights he may have enjoyed under the Convention.
The story engages the privacy rights of her and her partner so acutely that the court would almost certainly find in their favour and ban the broadcast of the feature and any associated factual reporting relating to the story.
She would not be able to argue that her or her partner’s article 8 rights could be enforced in the domestic courts as the news channel is not a public authority and so has no duty to act compatibly with Convention rights.
She has a reasonable case for arguing that broadcasting of the filming and her identity should be restrained, as the matter engages her and her partner’s private and family life in a particularly acute way. The news channel may be able to argue that the story is in the public interest and therefore that publication of the basic information may be appropriate. However, unless it can show a strong public interest justification for disclosing the identity of the couple, it is unlikely that the film footage of her and of their house will be allowed, as this will give away her identity.
The court would regard this story to be a matter of notable public interest, as issues connected to the rights and conditions of prisoners are justifiably part of the public debate. It is irrelevant therefore how or where the news channel obtained this information. She would not have any reasonable prospect of being able to restrain this story, therefore.
She has a reasonable case for arguing that broadcasting of the filming and her identity should be restrained, as the matter engages her and her partner’s private and family life in a particularly acute way. The news channel may be able to argue that the story is in the public interest and therefore that publication of the basic information may be appropriate. However, unless it can show a strong public interest justification for disclosing the identity of the couple, it is unlikely that the film footage of her and of their house will be allowed, as this will give away her identity.
This is the best answer. The actual information concerning the proposal to allow artificial insemination for a serious offender may well be considered to be in the public interest. The privacy interests (and possibly the safety) of his partner could be put at risk, however, if the film and the identification of her and where she lives is broadcast. Medical information is also seen as particularly private – see for instance Campbell v MGN – and the manner in which it has been obtained will be a further factor for the court to weigh up. See also Ashworth Security Hospital case.
Question 1
A religious group applied for planning permission to build a temple. Last week the local planning authority refused the group planning permission because one of its core beliefs is that women should have a subordinate role in society and be subject to the headship of men. As the religious group has already secured alternative premises, it does not want to challenge the refusal. However, a pressure group that campaigns for religious freedom wants to apply for judicial review of the decision. (Note that this question includes topics covered in Chapters 7 and 8).
Can the pressure group challenge the decision of the local planning authority by way of judicial review on the grounds that it infringes the religious group’s freedom of religion?
A Yes, because of the importance of the matter (the Convention right of freedom of religion) and its role as a campaigner for freedom of religion.
B Yes, because there has been a clear breach of the Convention right of freedom of religion.
C No, because freedom of religion is a qualified right and the interference with it is proportionate.
D No, because the pressure group is not a victim under the Human Rights Act 1998.
E No, because the religious group’s right to freedom of religion has not been engaged as it has found premises elsewhere.
Answer
Option D is correct. A claimant can only bring proceedings for breach of a Convention right if they are a ‘victim’; ie directly and personally affected as per s 7 of the Human Rights Act 1998. Accordingly, pressure groups will not be victims under s 7 and therefore do not have the requisite standing to bring a claim for breach of Convention rights, including freedom of religion. It may well be the case, as option C suggests, that an investigation of the situation might conclude that the interference is proportionate. Nonetheless, option D is a better answer than option C as, in the absence of a claimant with the requisite standing, the court will not need to carry out a proportionality analysis.
Option A is wrong, as it summarises what the position might have been had the pressure group been applying for judicial review on the traditional grounds (illegality, irrationality and procedural impropriety), but it is not applicable to claims based on Convention rights. (A court might nonetheless hold that the religious group would be a more appropriate challenger.)
Option B is wrong as, even if there has been a clear breach of the religious group’s Convention rights (which seems unlikely), the pressure group does not have the requisite standing. Option E is wrong because the pressure group’s right to manifest its beliefs has been engaged, even if the interference might on investigation be found to be proportionate.
Question 2
A man convicted of murder committed when he was an adult is released after serving his sentence. He changes his name and goes to live in a part of the country where he will not be recognised, as he does not want the community in which he is living to know about his past. Some newspapers have found out where he lives and want to publish the details.
Will the man be able to obtain an injunction stopping the newspapers from disclosing his identity and where he lives?
A Yes, because publication of the information will violate his right to life and right to privacy.
B Yes, because although publication of his details will not violate his right to life, it will be a disproportionate interference of his right to privacy.
C Yes, because although publication of his details will not violate his right to privacy, it will be an interference with his absolute right to life.
D No, because as he committed the murder as an adult, he has forfeited his right to privacy and there is no interference with his right to life.
E No, because publication of the information will not violate his right to life nor be a disproportionate interference with his right to privacy.
Answer
Option E is correct. Based on the Mary Bell case, it seems unlikely that the risk of harm
to the man will reach the threshold to engage Article 2 (the right to life). As regards privacy (Article 8), freedom of expression of the press is highly important and can only be interfered with in exceptional circumstances, such as existed in the Mary Bell case. No such circumstances seem to exist here.
Options A, B and C are therefore wrong because they suggest either that there has been an interference with both Articles 2 and 8 (option A) or that one of them (options B and C) have been interfered with; as explained above it is unlikely that either has been interfered with. Option D is wrong as individuals do not forfeit their rights because of criminal conduct.
Question 3
A well-known actor was photographed leaving a walk-in HIV testing clinic in Birmingham.
A newspaper has published the photograph. During her career the actor has disclosed very little about her private life.
Which of the following best describes whether the actor can bring a claim in the High Court for breach of her Convention rights?
A She cannot do so. Although the newspaper has interfered with her right to privacy, she can only bring a claim against it before the European Court of Human Rights.
B She cannot do so because freedom of expression is a more important right than the right to a private life.
C She cannot do so because English law does not recognise a tort of privacy.
D She can do so because the right to a private life is entitled to greater protection than freedom of expression.
E She can do so because the newspaper has disproportionately interfered with her right to a private life.
Answer
Option E is correct. The photograph, relating to a health condition, clearly engages Article
8, the right to a private life, whilst in publishing the photograph the newspaper will be exercising its Article 10 right of freedom of expression. Neither right has precedence over the other, hence options B and D are wrong. Instead, the court will balance the actor’s Article
8 right with the newspaper’s Article 10 right. In this instance, following the House of Lords’ judgment in Campbell, the balance is likely to fall in favour of the actor’s Article 8 right as the newspaper does not seem to have a legitimate reason for disclosing her medical condition.
Option A is wrong as the actor will be able to bring a claim in an English court under the horizontal effect principle.
Option C is wrong. Following the Supreme Court judgment in in PJS v News Group Newspapers, it is arguable that English law does recognise a tort of privacy. In any event, under the horizontal effect principle the courts will give effect to Convention rights through developing existing causes of action compatibly with the ECHR.
Question 5
A woman in the UK asserts that her rights under Article 8 of the European Convention on Human Rights (ECHR) have been infringed by a public authority. Although she wishes to protest, she is unwilling to bring court proceedings under the Human Rights Act 1998 (HRA) against the public authority, because of the publicity she might receive, and because of the possible cost. The woman’s wealthy cousin is not affected by the alleged infringement, but says she would be willing to bring proceedings on behalf of the woman.
Can the cousin bring legal proceedings as the woman’s representative under the HRA?
A. Yes, because family representatives are specifically granted standing under the HRA.
B. Yes, because the HRA provides that proceedings may be brought by a representative where anonymity is a serious concern for the victim.
C. No, because only a victim of the infringement can bring an action and the cousin is not a victim.
D. Yes, because the court will be satisfied that the cousin, as a representative, is able to meet the expenses of the proceedings.
E. No, because a representative can only bring an action under the HRA where it replaces numerous individuals making identical claims.
C - No, because only a victim of the infringement can bring an action and the cousin is not a victim.
A government department has recently been created to tackle the rising terrorist threat in the UK. The civil servants working within the new department (‘the Staff’) are involved in the handling of secret material relevant to national security, and have been selected from existing civil service employees. All the Staff brought into the new department were existing members of the largest national civil service trade union (‘the Union’).
Six months into their new posts, after an escalation in industrial action by some civil service trade unions, the Staff are told that they have been banned from being members of the Union with immediate effect. No consultation with either the Staff or the Union has taken place. The Union did not participate in the recent industrial action. The Staff wish to bring a claim under the Human Rights Act 1998, alleging that their Article 11 rights to freedom of assembly and association, as enshrined within the European Convention on Human Rights, have been infringed.
Which of the following statements represents the best advice to the Staff about the protection offered by Article 11?
A. Article 11 rights are qualified rights whose exercise may be subject to restrictions which are imposed in the interests of national security.
B. Article 11 rights are limited rights whose exercise may be subject to restrictions which are imposed in the interests of the social and economic well-being of the country.
C. Article 11 rights are absolute in respect of the right of the individual to form and join trade unions for the protection of their own interests.
D. Article 11 rights are qualified rights and consultation is a necessary condition for any restriction on the right to form and join trade unions to be deemed proportionate.
E. Article 11 rights are limited rights and are not subject to restriction when exercised by the armed forces, the police or the administration of the state.
A - Article 11 rights are qualified rights whose exercise may be subject to restrictions which are imposed in the interests of national security.
A production company has been refused a classification certificate for a film because the national licensing authority considered the film to be blasphemous and to contain obscene material contravening various statutory provisions.
The company seeks advice in relation to a possible action under article 10 of the European Convention on Human Rights (‘ECHR’).
Which of the following statements represents the best advice to the company, relating to its freedom of expression and whether it can be interfered with in this way?
Select one alternative:
Freedom of expression can be interfered with by the licensing authority but only if the interference is designed to protect national security or to prevent violence towards others.
Freedom of expression can be interfered with by the licensing authority but only if the restriction on it is a proportionate one.
Freedom of expression is an absolute right and so the licensing authority’s actions represent a clear breach of article 10.
Freedom of expression can be interfered with by the licensing authority but only if the restriction on it is prescribed by law and fulfils a legitimate aim in a proportionate way.
Freedom of expression only protects political and journalistic free speech and so there would be no protection under article 10 in relation to the banning of the film.
Freedom of expression can be interfered with by the licensing authority but only if the restriction on it is prescribed by law and fulfils a legitimate aim in a proportionate way.
This question requires knowledge of the nature of article 10 ECHR and the circumstances is which it can be justifiable for the state or a public authority to interfere with it. It is important firstly to appreciate that article 10 is a qualified right and not an absolute one. And also that expression covers a very wide range of expression, not just political. It is not possible on the facts to determine if there has been a definitive breach of article 10 so the question anticipates knowledge of the three hurdles which it is necessary for the state to overcome to justify the restriction, in this case the refusal of the certificate. These are that the restriction must be ‘prescribed by law’ and applied in a proportionate way in pursuit of a legitimate aim. The list of relevant legitimate aims is contained in article 10(2) and are not confined to national security or safety.
A celebrity author of a self-help relationship book, entitled ‘How to Make Your Marriage Succeed’, has been photographed by a tabloid newspaper on a public street, kissing and holding hands with a man who is not her husband. The tabloid’s subsequent enquiries have revealed that they are having an extra-marital affair.
The author would like to issue proceedings against the tabloid newspaper for an infringement of her privacy contrary to article 8 of the European Convention on Human Rights (‘ECHR’).
Which of the following statements represents the best advice to your client and the reason why?
Select one alternative:
It is very likely that the court would accept that she had a reasonable expectation of privacy in this situation. However, it is also likely that the court would find that there was a public interest factor in the story that the newspaper could point to in order to justify publication, so it is unlikely she would succeed.
She would not be able to make a claim, because freedom of expression will always take precedence over the right to a private life and so the newspaper’s article 10 rights would automatically supersede hers.
It would be possible for her to make a claim but only if she had a pre-existing contractual or other relationship with the newspaper and could show that it had breached her confidence.
It is unlikely that she will succeed in her claim as a court will probably not consider her to have a reasonable expectation of privacy, as she had acted openly in this way in a public place. Even if it were found that she did have such an expectation, it is likely that the court would find that there was a public interest factor in the story that the newspaper could point to, in order to justify publication.
She would not be able to make a claim, because the Human Rights Act 1998 only provides protection for individuals against public authorities that interfere with their Convention rights and the newspaper is clearly not such an authority.
It is unlikely that she will succeed in her claim as a court will probably not consider her to have a reasonable expectation of privacy, as she had acted openly in this way in a public place. Even if it were found that she did have such an expectation, it is likely that the court would find that there was a public interest factor in the story that the newspaper could point to, in order to justify publication.
This question relates to the ‘indirect horizontal effect’ that has been brought about the Human Rights Act, notably the status of the courts as public authorities. In principle a claim would be possible in this scenario, but it is unlikely to succeed for two reasons. Firstly, an individual will only have article 8 privacy rights engaged, if they are seen to have a ‘reasonable expectation of privacy’ and that is unlikely in this public situation. Secondly, even if a court deemed there was a reasonable expectation of privacy, it is likely to apply the balance between the individual’s privacy rights and the tabloid’s article 10 rights in favour of the latter, as there appears to have been a public interest in the story.
