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Con&Ad: ECHR Article 8, Private & Family Life Article 8
? 'the least defined and most unruly of Convention rights' (Stanley Burnton J, R (Wright) v SoS Health (2003)).
? Art 8(1) covers 4 aspects:
1. Private life
2. Fam life
? Art 8 is a 'qualified' right: state can interfere if 'legit' aim in art 8(2) and 'necessary in a democratic society'.
? The breadth of Scope of Art 8, Laws LJ in R (Wood) V Commissioner of Police of the Metropolis (2009), CA: o ' . . . the content of the phrase "private and family life" is very broad indeed . . . .[well beyond close personal relationships] . . . any attempt to encapsulate the right's scope in a single idea can only be undertaken at a level of consideration abstraction'.
? Remember obligations on state under ECHR: o Negative obligation o Marper v UK: the police practice, under legislation, of retaining DNA, as challenged as an unlawful interference with private life. o Positive obligation (Osman v UK): o Osman v UK: the schoolboy who was stalked by his teacher. ECHR held: importance of positive obligation on state to prevent third parties interfering with the rights of other citizens. o Von Hannover v Germany (no 1): 'Art 8 . . . does not merely compel the State to abstain from such interference . . . in addition to the primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life . . . [eg] the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves'. .
(1) Private Life
??? ?The categories of private life not a closed list---Convention is a 'living instrument'.
? ?? ? R (Countryside Alliance) v AG (2006), CA: CA forced to identify the outer limits of Art 8; challenge arose from ban on hunting with dogs by Hunting Act 2004; applicants argued they were using their own land for hunting (and that a decline in hunting was likely to jeapordise their homes and livelihood); CA held: Art 8 was not engaged; the consequences of the ban
1 did not cause a lack of respect for applicant's private/family life. The claim was based on an overly wide definition of Art 8.
? ?? ? Right to private life has included: (a) Physical, mental and moral integrity
? ?? ? Costello-Roberts v UK (1995): HELD: private life does cover a person's 'physical and moral integrity'. CostelloRoberts a young boy at boarding school; given corporal punishment; argued breach of Arts 3 and 8. HELD: not breach of Art 3, and not sufficient interference with 'physical and moral integrity' to engage Art 8.
? ?? ? Von Hannover v Germany (2004):
??? ?Challenge by Princess Caroline of Monaco against press. HELD ECHR: Art 8 'extends to aspects relating to personal identity', eg a person's name or picture, and could cover a 'zone of interaction of a person with others, even in a public context, which may fall within the scope of 'private life''.
??? ?Private life includes a person's 'physical and psychological integrity'.
? ?? ? Osman v UK (1998): re the schoolboy stalked by teacher; the physical and psychological integrity aspect of Art 8 also places positive obligations on the state? in appropriate circumstances the state might owe positive obligations to offer protection to an individual against threats to bodily integrity from another individual.
? ?? ? Purdy v DPP (2009), HL:
??? ?Debbie Purdy, a 'right to die' campaigner, argued that Suicide Act 1961, s2(1), was unlawful interference with Art 8 rights (in relation to uncertainty surrounding the policy on prosecutions).
??? ?HELD: agreed with that. As a result, DPP published a new set of policy guidelines re prosecuting those who accompany/assist people in ending lives.
? ?? ? R (Nicklinson and another) v Ministry of Justice (2014), SC: first applicant had become completely paralysed following a severe stroke; wanted court to make a declaration that it would be lawful for a Dr to assist him in ending his life; or, in the alternative, that the current state of UK law was incompatible with his rights to a private life and autonomy under Art 8. o 5 of the Justices HELD: the court had the constitutional authority to make a declaration that the general prohibition on assisted suicide in s2 Suicide Act is incompatible with Art 8. 3 of the five declaration to grant DOI (Under s4 HRA); but Lady Hale and Lord Kerr indicated they would have done so.
2 o The remaining 4 Justices were more cautious: the issue of incompatibility involved a consideration of issues which Parliament is inherently better qualified than the courts to assess; court should respect Parliament's assessment.
? ?? ? R (F & Thompson) v SSHD (2010), SC
??? ?Re murder of James Bulger.
??? ?A challenge to provision of Sexual Offences Act 2003, s82(1)---
required those convicted of a particular sexual offence to provide lifelong notification to the police of their whereabouts.
??? ?HELD, SC: the 'notification requirements', with the lack of any right of review over them, were a disproportionate interference with Art 8 rights, which included someone's mental and moral integrity. Art 8 engaged by mental and moral integrity. So the lower court's DOI was upheld.
? ?? ? McDonald v UK (2014): ECHR, although found against the applicant, confirmed that her Art 8 rights had been engaged by a decision taken by her local authority. UK gov sought to argue: her dignity had been respected with the decision was made to reduce the level of night-time assistance she had received as part of a care package.
??? ?ECHR re-stated its position from a long line of cases, including Pretty v UK (2002), that the 'very essence' of the Convention was respect for human dignity & freedom; and accepted that the undignified and distressing implications of the reduction in her care package engaged Art 8---but states have a wide margin of appreciation in matters relating to allocation of scarce resources; so didn't find violation.
? ?? ? Razgar v SSHD (2004, not in study notes):
??? ?A case on asylum. (Art 8 often invoked in immigration/asylum).
??? ?Razgar an Iraqi citizen, who had arrived in England via Germany, suffering from PTSD as a result of things that had happened to him in Iraq and Germany.
??? ?He invoked Art 8 as a ground for not deporting him.
??? ?Commentary on scope of Art 8 re physical, mental and moral integrity. Court HELD: reliance may in principle be placed on Art 8 to resist deportation, even when the claimant is not relying on family ties, but where C is relying on the consequences to his mental health of removal. Said that it is Plain that 'private life' is a broad term, and the court will not define it comprehensively. For present purposes, 'mental stability' is an indispensable precondition to effective enjoyment of right to respect for family life.
??? ?Court referred to Pretty V UK, where Art 8 had covered the 'physical and psychological integrity' of a person. 3
??? ?And Art 8 protects 'personal development' and the establishment of relationships with other human beings and the outside world.
??? ?Art 8 extends to those features which are 'integral' to a person's identity, or ability to function socially as a person.
??? ?So broad interpretation of Art 8. (b) Sexual orientation
? Not only at home, but also includes right to privacy in the workplace.
? Dudgeon v UK
? Majority of ECHR (15:4), held: the criminal prohibition on homosexual conduct between consenting adults in private, which existed at time in N Ireland, was a breach of respect of private life of Art 8. Was a 'continuing interference with the applicant's right to respect for private life (which includes his sexual life) within the meaning of Art 8(1)'.
? Smith and Grady v UK (2000)
? (was relevant case for royal prerogative).
? Lesbian and gay man expelled from the army; successful claim in ECHR (having failed in UK to prove that army had breached Art 8).
? ADT v UK (2001)
? ECHR: consensual sexual activity between 5 adult men was a matter of private sexual behaviour, protected by Art 8---its criminalisation under UK law at that time was a breach of right of respect to private life. (c) Searches of the person
? Re personal searches of the body and belongings, by police officers/security guards, when entering public bodies.
? Wainwright v UK
? A prison. Mother and son subjected to strip and intimate body searches whilst visiting someone in prison. Son suffered from learning difficulties which added to his humiliation.
? HELD: Art 8 engaged, intruded into their private life.
? R (Gillan) v Comm of Police of Metropolis (2006), HL: HL had to consider whether stop and search powers in ss44-47 Terrorist Act 2000 were compatible with art 8.
? Lord Bingham: to engage Art 8, 'intrusions had to reach a certain level of seriousness', and an ordinary superficial search of the person/opening of the bags, of the kind to which passengers generally uncomplainingly submit at airports, could not be said to reach this level.
Went to ECHR--Gillan and Quinton v UK (2010)
[came across case under Art 5]
Facts: a search of a journalist and a student at an arm's fair protest in London. Went to ECHR, overturned HL: succeeded in claim, the searches at the arm's fair were a breach of Art 8 rights. The stop & search powers under s44 Terrorism Act 2000 were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse; thus were not in 'accordance with the law'---violations of Art 8. The safeguards provided by domestic law had not been demonstrated to constitute a real curb on the wide powers afforded to the executive so as to offer the individual adequate protection against 'arbitrary interference'with Art 8 rights by public authorities. The 'law must indicate with sufficient clarity the scope of any such discretion' conferred on public authorities . . . ' ' . . . Although the search is undertaken in a public place, this does not mean that art 8 is inapplicable . . . Indeed . . . the public nature of the search may, in certain cases, compound the seriousness of the interference bcause of an element of humiliation and embarrassment . . . ' So, basing its criticism on fundamental rule of law principles, the court considered that the very wide scope of the powers given to the police gave considerable potential and opportunity for abuse, a view reinforced by its statistical analysis of the extent of the use of the powers in recent years. Hence HELD: s44 was incompatible with Art 8 because failed the 'prescribed by law' test.
(d) State surveillance
? Khan v UK (2001)
? Police had installed a bugging device in a hotel, bugging a known criminal, obtained a recording of him discussing a drugs deal.
? At the time there was no UK legislation governing use of bugging equipment by the police.
? ECHR: surveillance measures could only be 'in accordance with the law' where there was legislation in place; so there had been an unlawful interference with Art 8.
?????Since then, legislation put in place for state surveillance: Regulation of Investigatory Powers Act 2000 (RIPA).: provides clear test for whether state surveillance is legal: authority must be obtained; and must take into account 'necessity' and 'proportionality'. 5
??R (Wood) v Commissioner of Police of Metropolis (2009), CA: CCTV Whether retention of police photographs of a peaceful demonstrator was held to engage Art 8. AND, the retention of photographs beyond a 'reasonable' period, when it became obvious the person hadn't committed a crime = disproportionate, so breach of Art 8 rights.
(2) Family Life
??? ?'Family' = a broad concept, not just traditional family unit.
? ?? ? Marriage, Children and Prisoners (a) Family life generally
? ?? ? Kroon v Netherlands (1995): 'Family' under Art 8 is not limited to relationships dependent upon marriage.
??? ?In that case, a child born to an unmarried (stable) relationship, whilst Mrs Kroon was still married to Mr Kroon.
??? ?Under Dutch law was impossible to obtain recognition of the biological father's paternity unless the husband denied paternity. HELD: this was violation of Art 8 rights.
??? ?HELD: '"family life" is not confined to marriage-based relationships, and may encompass other de facto "family ties" where partners are living together outside marriage. ' (b) Marriage
? ?? ? Abdulaziz Cabales and Balkandali v UK (1985):
??? ?3 women claiming because they had lawfully settled in UK, that their husbands, who they had subsequently married, should be entitled to come and live with them in the UK.
??? ?HELD: the duty imposed on state under Art 8 could not be considered as extending to a general obligation on part of the state to respect the choice by married couples of their matrimonial residence and to accept non-national spouses for settlement in that country.
??? ?So the non-UK spouses (and non-EU, crucially) didn't have right to settled in UK. For EU spouses, they do have a right of settlement in the UK currently.
? ?? ? Quila v SSHD (2011), SC: re a ban in immigration rules on the grant of marriage visas, where either party to the marriage was under 21 years old, was a breach of Art 8 family life.
??? ?Reason for ban given by Home Sec: raising age from 18 to 21 was designed to prevent forced marriages.
6 ??? ?Held: although the Immigration Rules pursued a 'legitimate aim' (of protecting against force marriage), held that the interference was not necessary in a democratic society, the interference disproportionately interfere with a greater number of unforced marriages than forced marriages. So was not the least intrusive means of pursuing this legit aim. (c) Children
? ?? ? Evans v UK (2007):
??? ?Balacing of competing Art 8 rights:
??? ?A couple who had separated. Applicant complained that the UK law which allowed her former BF to withdraw his consent to the storage of embryos created jointly by them, was an infringement of her right to a family life.
??? ?He argued: going ahead without consent, after their separation, would violate his private life, being forced into paternity against his will.
??? ?Evans argued that the UK was under a positive obligation to protect her rights through enacting appropriate legislation.
??? ?She lost, ECHR held: upheld his right, that his right to decide whether to become a parent had greater weight than her right to become a parent. So the UK law had achieved an appropriate balance. The UK law allowing him to withdraw his consent for use of those frozen embryos was a legitimate interference with her right to a family life (d) Prisoners:
??? ?Prisons can argue their right to family life has been interfered with.
? ?? ? Dickson v UK (2007)-right to artificial insemination for prisoners upheld
??? ?Prison rules didn't allow Dickson (serving life sentence) to be provided with artificial insemination facilities---he complained this was breach to right to family life, it prevented him and his wife having a child, said breach of UK's positive obligation re respect for family life.
??? ?He argued it was breach of UK's positive obligation to secure respect for his family life.
??? ?ECHR HELD: accepted that Art 8 had been engaged, because his right to fam life was being interfered with. Found for Dickson: the UK's policy, in balancing the public interest with those of individuals, had set an unfairly high threshold, this was not justifiable. They took the particular circumstances of Dickson into account---including that, by the time he was released, she would be beyond childbearing age.
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