???PAPER 3: Section B - Human Rights Law (Article 8) Flashcards
What is Article 8?
Discuss (2) also when it considers when Article 8 would have to be breached by public authority. (4 pointers)
Article 8 protects four main areas of personal autonomy; private life, family life, home and correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except when:
• in the interests of national security, public safety or the economic well-being of the country,
• for the prevention of disorder or crime,
• for the protection of health or morals, or
• for the protection of the rights and freedoms of others.”
Define necessary
It is up to the state to justify any interference which must also be proportional.
The court must ensure that:
• the objective of the legislation is sufficiently important;
• it is not arbitrary, unfair or irrational;
• the limitation must impair the right as little as possible; and
• the interference must not be so severe that it outweighs the objective.
Define ‘ respect’
Respect’ means that the state must not interfere, apart from the exceptions in Article 8(2), with this right. It also means that the state must take positive steps to protect these rights.
This was considered by the ECtHR in Sheffield and Horsham v United Kingdom. The two applicants had undergone gender reassignment surgery from male to female. The state would not officially recognise their new status.
PRIVATE AREA - Define private life. Give a case.
‘Private life’ is very wide, and is not the same as privacy. It includes:
• the physical and psychological integrity of a person
• sex life and gender
• personal data
• reputation
• names
• photos.
Niemietz v Germany, where the police searched a lawyer’s office to try to identify a suspect. The search was part of ‘home’ and the lawyer’s private life. The court said: “Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings”.
Give the case for survelliane
Halford v United Kingdom, where the claimant was an Assistant Chief Constable. Her phone calls were intercepted by senior officers to obtain information regarding a sex discrimination claim she was pursuing in the employment tribunal. The interception of the calls of an employee in a private exchange was a breach of A8.
In Wood v Metropolitan Police Commissioner, the police took and retained photographs of a person from a group opposed to the arms trade as he left the annual general meeting of a company that organised arms trade fairs.
The police failed to justify that interference as being proportionate. It was an intrusion by the state into the individual’s own space and integrity and amounted to a violation of A8.
give the case for protecting a young person’s health
Axon v Secretary of State for Health:
A parent sought a declaration that a doctor was under no obligation to keep confidential advice and treatment proposed to a young person under the age of 16, in respect of contraception, STIs and abortion. The court rejected the claimant’s argument provided the child is Gillick competent
case for sex offenders
Under s82 of the Sexual Offences Act 2003 all persons sentenced to 30 months’ imprisonment or more for a sexual offence become subject to a lifelong duty to keep the police notified of where they are living and of travel abroad
F and Thompson v Secretary of State for the Home Department
The Supreme Court stated that the notification requirements were not disproportionate but there must be a way for the offender to seek a review of his status. Therefore the current law was incompatible with A8.
Guidance was issued on this matter by the Home Office in November 2016.
police powers
Under s32 PACE 1984, a constable may search a person, arrested at a place other than a police station. There must be reasonable grounds for believing that the person may present a danger to himself or others; has anything which he might use to escape from lawful custody; or might be evidence relating to an offence.
A constable cannot require a person to remove any of his clothing in public other than an outer coat, jacket or gloves but can do a search of a person’s mouth.
Section 32 also gives a constable the power, if it is an indictable offence, to enter and search any premises in which a person was when arrested or immediately before he was arrested for evidence relating to the offence.
harrassment
The Protection from Harassment Act 1997 created two criminal offences:
• Pursuing a course of conduct amounting to harassment, which includes alarming the victim or causing distress (s2); and
• Conduct which puts the victim in fear of violence (s4).
“Course of conduct”, which includes speech, means normally on at least two occasions.
These are imprisonable offences or the court can make a restraining order. This forbids D from pursuing further conduct against the victim which amounts to harassment or will cause a fear of violence.
In addition, a civil court can impose civil injunctions in harassment cases as well as awarding damages to the victim. Breach of such an injunction is a criminal offence.
defemces to harrassment
- that the conduct was for the purposes of preventing or detecting crime;
- it was pursued under an enactment or rule of law; or
- in the particular circumstances the conduct was reasonable.
what does the malicious communications act 1998
The Malicious Communications Act 1998 makes it an offence to send another person a letter, electronic communication or article of any description which conveys:
(a) a message which is indecent or grossly offensive; (b) a threat; or (c) information which is false and known or believed to be false by the sender.
There must be an intention to cause distress or anxiety to the recipient or any other person.
define private life properly ill pattern these but this is about priv life
In English law there has never been a right to privacy. While there was the possibility for a claim in the tort of breach of confidence, this was restricted to confidential information and confidential relationships.
However, A8 is not available in private disputes. It can only be raised in cases involving a public authority. The courts, however, must not make a decision that is incompatible with the ECHR.
The ECtHR noted the UK’s absence of a general tort of invasion of privacy in Wainwright v Home Office:
The claimant and his mother went to visit his stepbrother in prison. Because he was suspected of taking drugs in jail, visitors were asked to consent to a strip search. As the searches had not been proportionate to the aim of preventing crime and disorder in the manner in which they had been carried out, there was a violation of Article 8.
how are the press involved in article 8?
The intrusion into private life has always been a feature of the tabloid press. They enjoy freedom of expression under Article 10. The difficulty is in establishing what is in the public interest and what is a mere invasion of privacy.
The courts have had to balance individual rights to privacy and to freedom of expression:
In Campbell v MGN Ltd, a model was photographed coming out of a Narcotics Anonymous meeting. The court stated that Articles 8 and 10 are now part of a claim for breach of confidence. There is no question of priority of A10 over A8 or a presumption in favour of one rather than the other. There was a disproportionate interference with her right to privacy, even though the fact that she was receiving treatment was in the public domain.
: Naomi Campbell succeeded even though the newspaper publisher was not a public authority.
The question of priority was recently considered by the Supreme Court in PJS v News Group Newspapers Ltd, where the claimant applied for an injunction to prevent publication of the fact that he had a three-way sexual encounter …
NEW MAIN AREA : FAMILY LIFE
Article 8 gives the right to enjoy family relationships (including foster parents and carers) without interference from the state.
Family includes children and grandchildren according to Marckx v Belgium where illegitimate children had no legal recognition and less inheritance rights than legitimate children. This violated A8 and the government amended the law.
HOME
There is a right to enjoy your existing home peacefully, rather than a right to a house. It included the right to remain on a caravan site for gypsies in Connors v United Kingdom.
It applies to owners or mere occupiers, eg, children of the owner, as stated in Khatun v United Kingdom.
Therefore, public authorities should not stop you entering or living in your home without very good reason, and they should not enter without your permission.
