Right to private and family life - article 8 Flashcards
what does section 1 say?
Everyone has the right to respect for his private and family life, his home and his correspondence
what does section 2 say?
There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society 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 (where we can justify taking away this right)
what does in accordance with the law mean?
basis in national law
accessible - published and comprehensible, possible to find out what the provisions are
foreseeable
what does specified grounds/legitimate aim entail?
- 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
there must be some evidence that the interference will meet or achieve the aim cited
what is the four stage analysis from Bank Mellat v Her Majesty’s Treasury (no 2) for testing if a breach is necessary in a democratic society
a) Whether the objective is sufficiently important to justify the limitation of a fundamental right
b) Whether it is rationally connected to the objective
c) Whether a less intrusive measure could have been used
d) Whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community
what is included in article 8 - the scope of private life?
- the physical and psychological integrity of a person or moral integrity
- aspects of an individual’s physical and social identity
- the right to personal development
- right to establish relationships with other human beings and the outside world
- the notion of personal autonomy
what case concluded that stop and search can fall within the scope of private life and why?
R (Gillan) v Commissioner of Police [2006]
can lead to humiliation and embarrassment
why is article 8 relevant to control order and TPIMS?
Article 8 restriction is a relevant consideration in determining whether a control order breaches article 5 – it may be the decisive factor – capable of tipping the balance - SSHD v AP [2010]
what is the issue with personal data and article 8?q
Personal data includes DNA samples, fingerprints, health records and GPS data
The issue is around collection and retention of this data and if this interferes with article 8 rights
In terms of surveillance what can constitute an interference with private life?
Systematic collection and storage of data by security services on particular individuals constitutes an interference with private life, even if the date were collected in a public place
What happened in R (Bridges) V The Chief Constable of South Wales Police [2020] ?
-Automated facial recognition technology
-New South Wales is the lead force in testing this technology
-Police or authorities create a watchlist where they put existing faces onto technology
-Creates a watchlist based on existing data
-Bridges stopped twice with this technology
-This was a violation of article 8 because it gave too much discretion to officers to determine who was on the watchlist
-Had there been clear guidelines and safeguards it probably would have been proportionate
what is recognised as family relationships under article 8?
- Deep social, emotional and financial dependency
- ECtHR recognises family relationships in a way which recognises social changes and reality
- Doesn’t allow legal forms to prevail over biological and social reality
- Real factors such as closeness/longevity/strength and stability are relevant even if a couple lives apart
- Whether or not family life exists is a question of fact depending on the real existence in practice of close personal ties
what are the types of family relationships covered ?
The types of family relationships covered:
Couples = marriage not determinative, same-sex covered, don’t have to co-habit
Child-parent
Foster family
Adopted family
Grandparents
Siblings
what are the restrictions on family life?
- best interests of the child = decision may be proportionate based on best interests of child
- immigration and deportation = must strike a fair balance when weighing up the rights of the individuals to family life vs collective goals
