Human Rights Article 8 + 10

Front 1

The Basic Structure of a HR Problem Question

Back 1

1. Preliminary Issues
2. Does the action engage an ECHR right?
3. Does the interference amount to a violation?
4. If so, what can be done by the court?

Front 2

Preliminary issues

Back 2

1. Does the applicant have standing?
2. Is the body interfering with the right of a 'public authority'?
3. Is the claim in the time limit?
4. Was the action completed within UK jurisdiction?

Front 3

Klass v Germany

Back 3

Held: Gives the test that the victim must have been directly affected by the breach.

Front 4

Art.34 ECHR 1950

Back 4

'Any person, NGO or group claiming to be...a victim'

Front 5

s7(7) HRA 1998

Back 5

Satisfies test for ECHR, can then bring a claim under s7(1) HRA 1998.

Front 6

s6(1) HRA 1998

Back 6

Unlawful for a PA to act incompatibly with an ECHR right unless it falls under an exception in s6(2).

Front 7

Aston Cantlow

Back 7

- Is a public authority a core/hybrid PA? Even if hybrid, it will still be exercising a core public function (s6(3)(b) and s6(5)

- Are the defendant's appropriate?

Front 8

s7(5) HRA 1998

Back 8

- Is the claim brought within the time limit?

Front 9

Art 1 ECHR

Back 9

If the action is complained of within the UK's jurisdiction, UK owe a duty under this article to respect convention rights regardless of nationality.

Front 10

Khan v UK

(McKennit; Peck)

Back 10

Facts: Police used unauthorised surveillance on a suspected drug dealer. Evidence was improperly obtained by a secret listening device.

Held: This infringed a respect for his private life and space. The evidence was obtained in breach of article 8.

Front 11

Wainwright v Home Office

Back 11

Facts: Strip search conducted on a mother visiting her son in prison.

Held: Searches went beyond what was necessary in a democratic society.

Front 12

Gillan & Quinton v UK

Back 12

Facts: Used Terrorism Act 2000 to stop and search two journalists where there was no reasonable suspicion.

Held: Police had gone too far in terms of the stop and search rules. Clear interference with right to private life.

Front 13

R (on app of T) v CC Greater Manchester

Back 13

Facts: Kept personal information obtained through a background check on file. Stealing a bike aged 11 prevented him from teaching children.

Held: This was an infringement of his article 8 rights as the police did not seek to disclose the information. Court made a declaration of incompatibility.

Front 14

Hatton v UK

Back 14

Facts: Aircraft noise from Heathrow airport preventing the enjoyment of property.

Held: Failed to strike a fair balance between economic well being of the state and an individual's right to enjoyment of their right to respect for family homes and private life.

Front 15

Malone v UK

Back 15

Held: Interception of postal and telephone communications was a breach of Article 8.

Front 16

Foxley v UK

Back 16

Facts: Mail intercepted between prisoner and solicitor.

Held: Breach as the interference continued after the order had expired.

Front 17

Halford v UK

Back 17

Facts: Right to home life extended to a business considerations.

Held: No pressing social need for the opening, reading and copying to file of the applicant's correspondence with his legal advisers

Front 18

R (Daly) v SoSfHD

Back 18

Facts: Blanket policy whereby cells occupied by prisoners could be searched in their absence. Right to confidentiality over privileged legal correspondence lost.

Held: Policy prevented prisoners from communicating candidly with their legal advisers.

Front 19

Article 8(2)

Back 19

Article 8 relates to respect for family and private life, however it can be restricted as long as the PA gets over 3 hurdles in this act:

1. In accordance with the law?
2. Has to be in pursuit of a legitimate aim.
3. Necessary in a democratic society?

Front 20

In accordance with the law?

Back 20

- Is there a legal basis for the interference with a right?
- Is the law sufficiently accessible and precise?

Front 21

Sunday Times v UK

Back 21

Is it sufficiently narrowly prescribed so as to prevent the PAs being able to abuse excessively wide ranging powers?

This principle was later extended by Gillan & Quinton v UK, which linked this to the rule of law theory, stating that wider, less controlled power would mean more potential for abuse. If a power is wide ranging, can be open to abuse by the PA. Unrestricted use of powers.

Front 22

Legitimate Aim?

Back 22

Look for:

- National Security.
- Public Safety.
- Economic Well-being.
- Prevention of disorder and crime.
- Protection of health & morals. (Wainwright v UK)
- Protection of rights and freedom of others.
- Protection of privacy from intrusions by the media.

Front 23

S and Marper v UK

Back 23

Held: Blanket and indiscriminate nature of the DNA retention policy was seen as disproportionate. Presumption of innocence should be enjoyed.

Front 24

Da Silva v Netherlands

Back 24

Held: R's interest in staying near her daughter was outweighed by the economic interests of the country, as she worked illegally and did not pay tax or social security.

Front 25

Necessary in a democratic society?

Back 25

- Was there a pressing social need in the first place?
- Is it necessary to take action to achieve/advance the legitimate aim?
- Was it strictly necessary?
- Was the response proportionate to this aim? (Handyside v UK; Smith & Grady v UK)

Front 26

T v BBC

Back 26

Facts: 'Interests of others' argued by the BBC when a woman sought an injunction preventing them from identifying her with anger management issues in a documentary.

Held: Right to private and family life outweighed the BBC's right to freedom of expression.

Front 27

What can be done by the court?

Back 27

- PA's defences to the violation found under s.6 HRA 1998.
- 2 routes under s3(1) HRA 1998 to interpret the law to make it compatible or...to make a declaration of incompatibility under s4(2) HRA 1998.

Front 28

R v A (Complainant's Sexual History)

Back 28

Facts: s41(3)(c) prevented information relating to the defendant's sexual history being released would impede right to a fair trial under Art6(1).

Held: Courts took a bold s3(1) HRA 1998 interpretation.

Front 29

A & Others

Back 29

Courts feel more confident dealing with discrete legal issues rather than broad ranging political ones. Used s4(2) to make a declaration of incompatibility towards a terrorism issue. Is it a political question or one of judicial competence?

Front 30

Ghaiden v Godin Mendoza

Back 30

Held: Read in reasonableness with little violence to the language.

- Look at how clear the wording of Parliament is. (Bellinger v Bellinger); (Re S).

- Ask would Parliament have intended for the law to be used in such an excessive/arbitrary way?

Front 31

Remedies

Back 31

- If a s3(1) interpretation is achieved, the PA will have acted unlawfully and claimant can seek a remedy under s.8 HRA 1998 as they will be liable under s6(1).

- If s4(2) DOI is made, the PA will use s6(2) as a defence and claimant will have no direct remedy.

Front 32

Smith & Grady v UK

Back 32

Facts: Ban on gay people in the army.

Held: Interference would be considered 'necessary in a democratic society' if:
- It answers a pressing social need; and
- is proportionate to the legitimate aim pursued.