Solicitors Qualifying Examination

Article 8: Right to private and family life home and correspondence | Public Law – SQE1 & SQE2 Exam

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Article 8: Right to private and family life, home and correspondence
Art 8(1) ~ protection of:
1. Private life
2. Family life
3. Home
4. Correspondance
Art 8(2) ~ Art 8 is a ‘qualified right’ – interference by public authority with right
when
1. In accordance with the law
2. In pursuance of one of the ‘legitimate’ aims of Art 8(2)
a. National security
b. Public safety
c. Economic well-being of the country
d. Prevention of disorder / crime
e. Protection of health or morals
f. Protection of the rights and freedoms of others
3. Necessary in a democratic society
R (Wood) v Commissioner of Police of the Metropolis – Laws LJ: considerable
abstraction required to encapsulate scope of right
Private Life
R (countryside Alliance) v Attorney General
• Imposition of ban on hunting with dugs (Hunting Act 2004) likely to
jeopardise homes and livelihood of those on whose land hunting takes
place
• Art 8 not engaged ~ even if these consequences were to arise = not
caused by lack of respect for private / family life
Physical, mental and moral integrity
Costello-Roberts v UK
• ‘Private life’ covers physical and moral integrity
• C-R subjected to corporal punishment
• Found no breach of Art 3 or Art 8
Osman v UK
© Liam Porritt 2020 2
• Positive obligation on states to offer protection to individuals against
threats to bodily integrity
Von Hannover v Germany
• Case re: right of Princess Caroline of Monaco to not have pictures of her
and her family published in the German media = here, Art 8 breach
deemed to exist
• Art 8 covers aspects of personal identity, inc. person’s name, picture +
‘zone of interaction of a person with others, even in a public context’
• Positive obligation on state to adopt measures to secure respect for
private life, even in the sphere of relations between individuals
o Balance needed between competing interests of the individual and
the community as a whole, especially under Art 10 (freedom of
expression)
• State enjoys (in positive and negative obligations) a certain margin of
appreciation
• Distinction needed between:
I. Reporting of facts (even controversial ones) which contribute to
debate in a democratic society = press as “watchdog” re:
information and ideas of public interest
§ E.g. Relating to politicians in the exercise of their functions
II. Reporting of private life of individual who does not exercise official
functions
§ No contribution by publishing photos and articles re:
private life of someone who does not exercise official
function
R (Purdy) v DPP
• Uncertainty surrounding policy of prosecutions for those who assist
suicide (Suicide Act 1961, s 2(1)) = contrary to Art 8
R (Nicklinson and another) v Ministry of Justice
• Stroke victim completely paralysed sought declaration that general
prohibition on assisted suicide (SA 1961, s 2) incompatible with Art 8
ECHR
• 5/9 justices agreed that court had constitutional authority to make
declaration
o 3/5 declined to grant declaration of incompatibility
o Lady Hale + Lord Kerr = incompatible
• 4/9 justices = consideration of issues which Parliament better qualified
than courts to asses
• R (Conway) v Secretary of State for Justice – CoA appeal currently of case
of incompatibility of s 2 SA 1961; rejected by Administrative court
R (F & Thompson) v Home Secretary
© Liam Porritt 2020 3
• Sexual Offences Act 2003, s 82(1) – obligation to provide lifelong
notification of whereabouts to authorities ~ lack of review contrary to Art
8
McDonald v UK
• Art 8 covers right to physical dignity re: level of care provided by local
authority in own home
• ‘Very essence’ of ECHR = respect for human dignity and freedom
• However, states have particularly wide margin of appreciation as to
matters relating to allocation of scarce resources
• Therefore, no breach found
Sexual orientation
• Dudgeon v UK [1982] – criminal prohibition on homosexual conduct
between consenting adults in private in NI = breach of Art 8(1)
• Smith and Grady v UK – see facts in previous notes.
• ADT v UK – Criminalisation of consensual sexual activity between 5 adult
men in applicant’s home = breach of Art 8
Gender recognition
• Bellinger v Bellinger – declaration of incompatibility due to absence of
provision for gender reassignment in s 11(c) of Matrimonial Cluases Act
1973 = Art 8 + 12 infringement
• R (C) v Secretary of State for Work and Pensions – policy of retaining
information re: reassignment of gender = considerable infringement, but
with sufficient safeguards (limited access to database) + complexity of
running national information system = no breach, as proportionate
Searches of the person
• R (Gillan) v Commissioner of Police of the Metropolis and Another [2006] –
stop and search under s 44-47 TA 2000
o Intrusions must reach level of seriousness (beyond superficial
search + opening of bags (e.g. at airports)) to engage Art 8
• Gillan and Quinton v UK – protections against TA 2000 powers ~
safeguards against abuse by executive insufficient, and therefore not
‘in accordance with law’ (see earlier notes)
• See Wainwright v UK
• R (Roberts) v Commissioner of the Metropolitan Police [2015] – similar
powers to in Gillan (s 60 Criminal Justice and Public Order Act 1994)
o Sufficient constraints (inc. need to give reasons to person
searched + disciplinary measures vs police officers), and so ‘in
accordance with law’ (Art 8(2)) + no Art 8 breach
• Beghal v DPP [2015] – Para 2, Sch 7 TA 2000 ~ SC distinguished Gillan +
no declaration of incompatibility
© Liam Porritt 2020 4
© Liam Porritt 2020 5
Surveillance by State
Khan v UK (2001)
• Hidden listening device installed
• No legislation in UK governing use of such apparatus by police ~ Art 8(2)
measures only ‘in accordance’ with law where clear statutory framework
exists
• Regulation of Investigatory Powers Act 2000 = clear test for state
surveillance (il)legal + need for authorization accounting for ‘necessity’ +
‘proportionality’
R (Wood) v Commissioner of Police of the Metropolis [2009]
• Retention of police photos of peaceful demonstrator engages Art 8
• Lack of time limits on retention (once clear had not and was not going to
commit offence) = Art 8 breach
Family Life
Kroon v Netherlands
• ‘Family’ = broad concept, not restricted to traditional family unit (i.e.
marriage not necessary)
• Dutch law did not recognise biological father’s paternity when child born
to woman already married, unless husband denied paternity
Abdulaziz, Cabales and Balkandali v UK
• Art 8 does not extend right of settlement to non-national spouses
Quila v Secretary of State for the Home Department
• Ban on grant of marriage visas where either party under 21 = breach of
Art 8
• Interference not ‘necessary in a democratic society’, as disproportionately
impacted on a greater number of unforced marriages than forced
marriages, and so did not achieve a legitimate aim by way of the least
intrusive means
Steinfeld & Keidan v Secretary of State for Education
• Bar against civil partnership for opposite-sex couples (Civil Partnerships
Act 2004) = potential violation of Art 14 + 8
• On appeal to SC + matter being discussed in Parliament
© Liam Porritt 2020 6
Right to have children
Evans v UK
• Domestic law permitted former partner of applicant to withdraw consent
to storage and use by her of embryos jointly created
• No Art 8 breach, as no reason why right to become parent should be
accorded more weight than decision not to have genetically related child
Dickson v UK
• Prison rules prohibiting artificial insemination facilities for prisoners =
breach of Art 8
Conjugal visits
Aliev v Ukraine
• Denied intimate contact with wife, while serving for organised crime +
aiding and abetting murder
• Denial of conjugal visits can be justified under prevention of disorder and
crime (Art 8(2))
• Ditto Kalashnikov v Russia + ELH and PBH v UK
Deportation of foreign nationals
• S 19 Immigration Act 2014 = requires courts to account for certain
mandatory ‘public interest questions’ when determining immigration /
deportation cases
• R (Johnson) v Home Secretary [2016] – liability to deportation due to birth
outside wedlock = breach of Art 14 + 8
• R (Kiarie) v Home Secretary – appeal against deportation only possible
after deportation (s 94B Nationality, Immigration and Asylum Act 2002),
which led to practical obstacles in appealing = Art 8 breach
© Liam Porritt 2020 7
Home
• Home life should be respected, not right to a home
Protection from:
1. Intrusion + invasion
§ R (M) v Hampshire Constabulary – CoA: police officers visiting
homes of sex offenders infrequently ≠ breach of Art 8, as warrant
not automatic right of police + (in any case) justified by
legitimate aim of protecting the vulnerable
2. Maintaining norm for individuals = permanence giving rise to comfort (R
(Coughlan) v N and E Devon Health Authority)
§ Moving patient accustomed to residence + promised that she
would not be moved
3. Eviction from social housing (Manchester City Council v Pinnock)
§ Must account for proportionality of order to leave home, even
where right of occupation has ended
• Pinnock was however obliged to submit to new
order made by SC with proportionality accounted for
§ Hounslow LBC v Powell – test based on proportionality balancing
interests of individual vs general public interest
Quality of home life
• Includes freedom from noise, nuisance, smell, leaking of waste
• Hatton v UK – reduction of noise levels around Heathrow ~ government
under positive obligation to manage noise (within margin of
appreciation)
o Here, no Art 8 violation, but there was Art 13 violation due to
lack of remedies available in domestic law
© Liam Porritt 2020 8
Correspondence
Malone v UK
• Interception of postal + telephone communication not ‘in accordance with
the law’ because no indication at the time ‘with reasonable clarity the
scope and manner of exercise of the relevant discretion conferred on the
public authorities’
Foxley v UK
• Continuing interception of correspondence after expiration of order = Art
8 violation
Halford v UK
• Telephone calls from business premises engage Art 8
• Monitoring of emails and internet usage by public employer engages Art 8
(Copland v UK)
Prisoners’ Correspondence
• Prison authorities may only open (but not read) a letter from a lawyer to
prisoner when reasonable cause to believe that it contains an illicit
enclosure that the normal means of detection have failed to disclose +
prisoners present when inspection takes place (Campbell v UK)
• Reading of mail only permitted where reasonable cause to believe that
the privilege is being abused (Campbell v UK)
• Blanket ability to search prison cells in prisoners’ absence = contrary to
common law right to confidentiality over legal correspondence (inability
to candidly discuss with lawyer disproportionate to benefit of searches) +
same results would have been found under Art 8 (R (Daly) v Secretary of
State for the Home Department)
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Restrictions on the right to private and family life
National security
• Sizeable margin of appreciation
Segerstedt-Wilberg v Sweden
• Police storing personal data for prevention of terrorism re: political
opinions, affiliations + activities = Art 8 violation
Secretary of State for the Home Department v AP
• Control orders under Prevention of Terrorism Act 2005 engage Art 8
• 16-hour curfew + requirement to live 150 miles from family = Art 8
violation
Public Safety
Ziya Uner v Netherlands
• Permanent residence of Turkish national convicted of manslaughter in
Netherlands withdrawn = no violation, as in accordance with domestic
law, pursuing aim + necessary in democratic society
Economic wellbeing
Da Silva v Netherlands
• Brazilian, with Dutch daughter, refused residence permit in Netherlands
• Netherlands argued on grounds that her working illegally that economic
wellbeing of country outweighed her need to be near her daughter
• Court disagreed + HELD: Art 8 violation
• Compare w/ McDonald v UK, where no violation on basis of wide margin
of appreciation un allocation of scarce resources
Prevention of disorder or crime
R v Chief Constable of South Yorkshire Police, ex p. LS + R v Chief Constable of South
Yorkshire Police, ex p. Marper [2004]
• Retention and use of DNA of those cleared of offence
• Held that Art 8 not engaged and that, in any case, it was compatible with
Art 8 by UK courts
• S and Marper v UK [2008] – blanket retention of DNA = disproportionate +
different to practices across Europe ~ must account for gravity of
offences / presumption of innocence
• Ditto Wainwright v UK (2007)
© Liam Porritt 2020 10
R (H) v A City Council [2011]
• Practice by local authority of disclosing convictions for indecent assault of
a child + possible future conviction to several organisations = contrary to
Art 8 right to private life, as disclosed information even when applicant’s
affiliation to organization did not involve working with children
R (T and others) v Chief Constable of Greater Manchester [2013]
• All cautions and warnings held on police national computer disclosed by
‘enhanced criminal record certificate’ (ECRC)
• 2 applicants here had minor offences when much younger + 1 had major
offence when 16, but this was never regarded as ‘spent’ so she could not
serve in the army
• Two grounds for interference with Art 8:
o Caution = private, and so part of private life
§ S 4 incompatibility = disproportionate to aims (as
evidenced by 2 applicants)
o Disclosure prevents employment / relations with others / earning
of a living
§ Not a blanket policy, but based on severity of offences +
proportionate means of achieving aim of protecting
employers’ assessments of candidates
R (Catt) v Commissioner of Police of the Metropolis + R (T) v Commissioner of
Police of the Metropolis
• Dissent from Lord Toulson, but general consent that data protection for
policing purposes proportionate
Protection of health and morals
Wainwright v UK (2007)
• 2 applicants subject to strip and intimate body searches while visiting an
inmate in prison
• HELD:
o Accordance with the law (Prison Act 1952)
o Pursued a legitimate aim of prevention of crime and protecting
health of prisoners
o BUT not proportionate to legitimate aim, due to intimate and
poorly regulated manner in which they were carried out
© Liam Porritt 2020 11
Protection of rights and freedom of others
Copland v UK
• Monitoring of employees’ calls, internet usage and emails by public
employer
• In interest of protecting rights and freedom of others, as ensuring
publically funded facilities not abused
• HELD: Interference had no basis in domestic law, so breach
… also covers media’s right to freedom of expression = horizontal application of
HRA 1998
© Liam Porritt 2020 12
Protection of privacy from intrusions by the media
Common law
• No general common law right to privacy (Wainwright v Home Office)
• Common law tort of breach of confidence = unauthorised dissemination
of personal information where (Coco v A N Clark (Engineers) Ltd):
a) Information with quality of confidence
b) Information imparted in circumstances importing an obligation of
confidence (relationship)
c) Unauthorised use of information to detriment of party
communicating it
d) Publication of information not in the public interest
Development of tort of misuse of private information under HRA 1998
• ‘Indirect horizontal effect’ of HRA 1998 = s 6(3)(a) HRA 1998 = courts are
public authorities and thus must act in accordance with s 6(1) to act
compatibly with convention
o Acting in accordance with ECHR under Art 6(1) includes courts’
interpretation + development of common law, even where neither
party is public authority (per Keene LJ, Douglas v Hello)
• Convention rights must be ‘hung’ from pre-existing cause of action (i.e. no
freestanding HRA claims) (s 7(1) HRA 1998; Lady Hale, Campbell v MGN)
Campbell v MGN
• CoA: dismissed claim b/c no obligation of confidentiality between 2
private parties
• HoL: overturned, as although no obligation of confidentiality, cause of
action of breach of confidence no longer requires initial confidential
relationship (i.e. (b) above)
• New cause of action = ‘misuse of private information’
a) Art 8 engaged by ‘reasonable expectation of privacy’
b) Once Art 8 engaged, balance Art 8 + 10 and consider if publication
necessary
© Liam Porritt 2020 13
Elements for the tort of misuse of private information
Reasonable expectation of privacy
1. Information in public domain? If yes (question of fact and degree), no
reasonable expectation of privacy (Browne v Associated Newspapers Ltd)
Ø Person waives right to reasonable expectation of privacy by
placing information in the public domain
2. Information obviously private? If yes = person can reasonably expect
privacy to be respected (Campbell)
Ø Here, consider nature of information and form in which it is kept
(Douglas v Hello!)
3. If no, would a reasonable person of ordinary sensibilities, if place in the
same situation as the subject of the disclosure, find the disclosure
offensive (Campbell)
Ø Here, consider circumstances of case (Murray v Express
Newspaper):
i. Attributes of claimant
ii. Nature of activity in which C engaged
iii. Place where happening
iv. Nature and purpose of intrusion
v. Absence of consent (known or inferred)
vi. Effect on C
vii. Purpose of publication
Campbell (Supreme Court) VS Von Hannover (No 1) (ECtHR)
• Campbell – Baroness Hale (obiter) – photograph taken in public place of
routine act (e.g. going to shops for milk) ≠ essentially private and
therefore does not engage Art 8
• Von Hannover – publication of Princess Caroline going about daily life
(shopping, going to restaurants, practicing sport and walking) = purely
private + engaged Art 8
Murray v Express Newspapers [2008]
• Dr & Mrs Murray (JK Rowling) with 19-month old son walking on public
street – action brought on behalf of son
• HC: rejected the claim on basis that David did not have reasonable
expectation of privacy (b/c publication not reasonably offensive
(Campbell) + considered that here JK was seeking to protect her own
privacy)
• CoA: found REoP – here, consider that image was not merely taken, but
published + action on behalf of child (whose parents had tried to keep
him out of the public eye)
© Liam Porritt 2020 14
Axon v MoD [2016]
• Publishing of story by Sun re: dismissal of naval commanding officer due
to bullying
• There was NOT a reasonable expectation of privacy because:
o Officers on ship who had brought about proceedings could infer
why he had been dismissed (i.e. information was somewhat in
public domain)
o Axon’s behaviour while exercising a public function threatened
the effectiveness of the ship
Re Application by JR38 for Judicial Review (Northern Ireland) [2015]
• Majority: 14-year-old did not have REoP in relation to photos published in
newspapers showing that he had been involved in serious rioting in Derry
• Minority: Did have REoP due to age, but photos from CCTV used as part of
police campaign to identify individuals and discourage further rioting =
interference with Art 8 justified
Balancing of Art 8 and Art 10
• Once REoP established (Art 8 engaged), consider balancing of Art 8 + 10 =
is there a sufficient contribution to a debate of general interest? (Von
Hannover v Germany (No 1))
o Re S (a child) [2004]:
i. Comparative importance of specific rights at issue in case
(see Re S)
ii. Legitimate aim (see Von Hannover 1 + 2)
iii. Proportionate to harm done to individual (see Campbell)
o Hannover v Germany (No 2) [2012] (falling under (ii) and (iii) of
Re S):
i. Information contributes to debate of general interest
ii. How well-known the person is and subject matter of
report
iii. Prior conduct of individual concerned
iv. Form and consequences of publication
v. Circumstances in which photos taken (consent?)
• S 12(4) HRA 1998 = courts must have particular regard to Art 10 rights
Re S (a child)
• Publication of cases will generally always be protected (with ruling in
favour of Art 10 rights) in maintenance of open justice
© Liam Porritt 2020 15
Von Hannover (No 1)
Distinction needed between:
I. Reporting of facts (even controversial ones) which contribute to
debate in a democratic society = press as “watchdog” re: information
and ideas of public interest
§ E.g. Relating to politicians in the exercise of their functions
II. Reporting of private life of individual who does not exercise official
functions
§ No contribution by publishing photos and articles re:
private life of someone who does not exercise official
function
Von Hannover v Germany (No 2)
• Photos of couple’s holiday and article re: how happy they are ≠ in public
interest, merely satisfying curiosity of general public
• Photo of walk during skiing holiday + article re: ill health of Caroline’s
father = in interest of public, so no breach here
Campbell v MGN Ltd
• Publication of photos and story of Naomi Campbell coming out of drug
rehabilitation clinic
• Interest b/c she had publicly denied drug taking and crticised the practice
within the fashion industry, so MGN used “hypocrisy” as defence to
publication
• No intrusion (i.e. balance in the public interest under Art 10 outweighing
Art 8 rights):
1. Campbell’s addiction
2. Campbell’s receiving treatment
• Intrusion (i.e. the more intimate the aspects of private life interfered
with, the more serious must be the reasons for interfering – not
sufficient reasons here):
3. Treated at Narcotics Anonymous
4. Details of treatment
5. Photos of her leaving the establishment
© Liam Porritt 2020 16
Examples of decided cases
HRH Prince of Wales v Associated Newspapers [2006]
• Extracts from Prince Charles’s journal re: politics + public life
• REoP here, as private thoughts + strong public interest in preserving the
confidentiality of the journal
Mosley v News of the World [2008]
• Allegations against Formula One President of sado-masochistic orgy in
residential property with Nazi theme
• Public interest could have been found if there had been more evidence of
Nazi theme / footage of any Holocaust parody
• However, in absence of any such evidence, gravity of allegations +
devastating impact ≠ justified
The Author of a Blog v Times Newspaper Ltd [2009]
• Blogging = essentially public activity and therefore no REoP as to identity
of anonymous blogger being published by Times
Injunctions
• Trafigura Ltd injunction = super-injunction preventing publication re:
existence of injunction against publication of internal report concluding
disposal of oil waste presented danger to local people in Ivory Coast
• ETK v News Group Newspapers = CoA: controversial step of accounting for
influence of publication on children whose parent about whom
publication is to be made ~ protection for those with children
• Mosley v UK – no need for individuals to receive advance notification from
media so that they can seek an injunction prior to publication
• PJS v News Group Newspapers Ltd
o There is no public interest in the disclosure or publication of
purely private sexual encounters, even though they involve
adultery or more than one person at the same time = tort of
invasion of privacy
o Repetition of disclosure / publication = further torts, even if to
persons to whom publication previously made (i.e. injunction must
be granted + upheld, even if information is readily available
elsewhere)

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