9) ECHR 8 & 10 Flashcards

Question

Khan v UK ## Footnote Surveillance by the state

Answer 1

* Police had installed listening device in hotel and obtained a recording of drugs deal * No legislation at the time governing; * Use of surveillance measures = "in accordance with the law" * **No clear statutory framework existed = unlawful interference**

Answer 2

**Regulation of Invesigatory Powers Act 2000** * Clear test for whether state surveillance is legal or not * Authority must be obtained * taking into account "***necessity***" and "***proportionality***"

Answer 3

* Retention of police photographs of a peaceful demonstrator * Member of Campaigh Against Arms Trade * Held to engage article 8 * Retention of photographs **beyond a reasonable period of time** * After apparent that they had not committed any crime = **disproportionate = hence a breach of art 8**

Answer 4

* Police officer entered into sexual relations with several women in activist groups **Violations under 3, 8 and 10** * Art 8 = disproportionate * Not in accordance with RIPA = breadth and open-ended quality failed to provide a limit on the undercover officers activities. * **RIPA itself incompatible with Convention rights**

Answer 5

* involving spouses, partners and children * Family = broad concept. * Not restricted to traditional family units

Answer 6

* Family in art 8 not limited to marriage. * Stable relationship despite Mrs Kroon being married * Mr Kroon would have to deny paternity. **Found that de facto "family ties" were partners are living together outside of marriage**

Answer 7

Any action that may disrupt the family unit **may engage article 8**

Answer 8

* Three female applicants * Lawfully settled in the UK, subsequently married husbands fromm their countries of origin * Article 8 duty not extended to accepting non-national spouses for settlement

Answer 9

* Ban in Immigration Rules on the grant of marriage visas, where either party was under 21 years, breached the right to family life guaranted by art 8 * Sought to prevent forced marriages. * Interference was **not "necessary in a democratic society"** = disproportionately impacted a greater numner of unforced marriages. * **Ban did not achieve legitimate aim by way of least intrusive means**

Answer 10

* Found in favour of the appellant as they considered his liability to deportation *** Due to accident of his birth out of wedlock** * Unlawfully discriminatory in breach of rights under art 14, read together under art 8

Answer 11

* Balancing competing family rights derived from art 8 * Applicant complained that domestic law permitted her former partner to withdraw his consent to the storage and use by her of joint embryos. Partner argued opposite **Appropriate balance** = rights

Answer 12

* Bar against entering into civil partnership for opposite-sex couples * **Civil Partnerships Act 2004** not proportionate interference with couple's rights * Incompatibility declaration * Art 14 (prohibition of discrimination), and art 8

Answer 13

* Majority in SC found that the law was incompatible with art 8 * Prohibited abortion in cases of foetal abnormality, rape and incest. * **Formal declaration of incompatibility could not be made under s 4 as NIHRC was not granted standing**

Answer 14

* Personal dignity * Sexuality * Searches of the person * State surveillance * Marriage rights * Immigration * Abortion

Answer 15

The courts have held that the right to private life includes a person’s **physical and moral integrity**

Answer 16

Homelife should be respected. * Person's home, should be protected from **invasion** and **intrusion**. * Respect for home and home life extends to **maintaining the situation** to which a person has become accustomed, and the very permanence which gives comfort.

Answer 17

* paraplegic * used to particular place of residence * Adapted for use * Health authroity went back on promise not to move her. **Violated art 8** = emotionally devastating and anti-therapeutic, **not justified under considerations in art 8(2)**

Answer 18

Rejected argument that visiting home of reg sex offenders for monitoring was a breach of art 8 * Ability to seek a warrant - vitiated consent. * Not accepted, as warrant not an automatic entitlement. Intereference was **justified**, policy designed to achieve **legitimate aim** of protecting vulnerable & **proportionate** * So long as not overly frequent or disclose private info

Answer 19

Right to respect for home = not just physical area, but free from other interferences.... * Noise * Nuisance * Smell * Leaking of waste **Complaint under art 8**

Answer 20

Scrutinised gov efforts to reduce noise levels around Heathrow Airport. Detrimental effect on quality of life of the Hatton family. * Gov not directly responsible * Did have a **positive obligation** to manage it. * Seena s part of the state's **margin of appreciation**, ECtHR could examine to see if margin properly applied. **No violation of art 8, violation of art 13 (available remedies in domestic law)**

Answer 21

* Protected under art 8 * Applied to letters * Advances in tech - applies to emails, text messages and other forms of communication | Malone v UK; Foxley v UK; Halford v IL

Answer 22

Interceptions of applicant's post and telephone for [prevention of detection of crime * Violated art 8 * Not "in accordance with the law" * English Law did not idnicate with **reasonable clarity**, the scope and manner of exercise of relevant discretion. * **PBL not satisfied due to lack of legal precision**

Answer 23

* Correspondence between applicant and solicitors intercepted * Breach of art 8 * Lawful justification for interference (**Insolvency Act 1986**) * Intercepts continued after order expired. * Beyond necessary

Answer 24

* Telephone calls conducted from business premsies * Can engage article 8

Answer 25

* Confirmed business calls can engage art 8 * As does monitoring of emails and internet usage by a public employer engage art 8

Answer 26

* High degree of protection for comms with legal advisors | Campbell v UK; Daly v SoS HD

Answer 27

* Life prisoner convicted ofmurder * Advised by solicitor of bringing civil actions. * Authprotoes may only open letters from lawyer to a prisoner when **they have reasonable cause to believe that it contains illicit disclosure** that normal means of detection have failed to disclose. * Opened and **not read**, guarantees = in front of pisoner * Reading only in **exceptional circumstances** = reasonable cause.

Answer 28

* Common law protection for correspondence with solicitor * Cells could be **searched in their absence** * Confidentiality over privileged legal correspondence. * Search policy had a **chilling effect** on prisoners' willingness to comm wiht legl advisers. * Violation was found, **blanket nature** of policy = infringement **greater than necessary to serve legitimate aims** * Would have engaged art 8

Answer 29

* Must be a legal basis to justify the interference with the right * Same as PBL under art 5(1) * **Sunday Times**: Accessible and sufficiently precise to enable regulation of conduct, and reasonably forsee consequences of actions * **Gillian and Quinton v UK**: executive discretion should not be expressed in terms of unfettered power - allowing arbitrary action

Answer 30

* Gillian and Quinton * Khan v UK * Malone v UK

Answer 31

Contracting state must demonstrate that it is interfering with the person's right under art 8 in pursuance with a legitimate aim. * National security * Public safety or economic well-being * Prevention of disorder or crime * Protection of health or morals * Protection of rights and freedoms of others *** Under art 8(2)**

Answer 32

* ECtHR affords a sizeable **margin of appreciation** to member states. * Assertion of national security will not automatically be accepted. * **Control orders** issued to Home Sec under Prevention of Terrorism have been found to engage art 8.

Answer 33

* National security * Imposition of 16 hour curfew and requirement to live 150 miles from family = violation of right to family life

Answer 34

* De Silva v Netherlands * McDonald v UK

Answer 35

* Brazilian applicant and daughter, a minor with Dutch nationality * Violation of art 8 from refusal to grant residence permit * Argued her interests were outweighed the economic wellbeing of the country where she worked illegally * ECtHR **felt on balance in favour of preserving family ties.**

Answer 36

* Need for local authority services dept to balance budget * Apportion public resoruces as fairly as possible * **= legitimate aim**

Answer 37

Sometimes necessary for state to interfere with art 8 rights in order to guard against criminal activity or disorder | R vv CC of SY Police, ex parte Marper; s and Marper; R(H) v A CC

Answer 38

* Court did not consider art 8 had been engaged * By retaining DNA and fingerprints of suspect cleared of criminal charges * Measure was justified * **given the effectiveness of the practice in preventing crime**

Answer 39

Applicants were successful because of **blanket and indiscrimnate nature** of the DNA retention policy. * Seen as **disproportionate** * Failed to take into account the **lack of gravity** of the offences suspected, * or the **presumption of innocence** that should be enjoyed by acquitted | Prevention of disorder

Answer 40

* Applicant challenged a local authority decision to disclose to several organisations a previous conviction for indecent assault of a child. * LA had **disproportionately interfered** with applicant's right to a private life. * Adopted **a blanket approach** to disclosing **information to all of his contacts** * When **applicant did not work with children as part of his affiliation with the organisations.** | Prevention of disorder

Answer 41

* Challenged Enhanced Criminal Record Certificate Scheme * All previous cautions held on national computer were disclosed * Engaged art 8 * Adversely affected **ability to engage in private life - aspects of working and developing relations with others** * **Blanket nature** = disproportionate to legitiamte aims. Went beyond necessary. * Court made a **declaration of incompatibility**

Answer 42

* Challenged serious convictions without spent date * **Not a blanket policy** as discriminated between offences * **= Proportionate means of achieving identified legitimate aims**

Answer 43

* Review of the system operating under Data Protection Act 1998 * Retention fo information for continuing policing purposes * Man who peacefully protested in association with orgs * Homophobic remarks to neighbout. * Data retention =**proportionate to fuflil legitimate aim** of crim prevention (some differing opinions amongst justices)

Answer 44

**Wainwright v UK** Two applicantsv **strip & intimately** searched when visiting an inmate in prison. * Court held there was no doubt that art 8 was engaged * In accordance with the law (**Prison Act 1952**) * **Not proportionate** to legitimate aim, due to **intimate and poorly regulated manner**

Answer 45

**Copeland v UK** - public employer's monitoring of telephones, emails and internet usage violated art 8 rights. * UK argued = justified to protect abuse of publicly funded facilities = rights and freedoms. * No basis in domestic law = amounted to breach. (NO PBL)

Answer 46

Rights and freedoms of others

Answer 47

* Freedom of expression = freedom to hold opinions and to receive and impart information and ideas without interference by public * **Qualified right** if restriction **is PBL in pursuit of legitimate aims (proportionate)** * authorities and regardless of frontiers * Public or private expression of views * Idea of free speech = constitutional

Answer 48

* No positive right to free speech. * Freedom to express themselves in any way, as long as not prohibited by law * = **a residual right**

Answer 49

* Right to freedom of expression * when court is considering whether to grany any relief that might affect the exercise of the right. **Court must have "particular regard" to the importance of the right to freedom of expression**

Answer 50

* Hold opinions * Recieve ideas and information * Right to exxpress views and opinions (Words, pictures, images and actions intended to express and idea or present information)

Answer 51

* Publication of the Little Red Schoolbook * Discussed how Freedom of Expression = one of the basic conditions of progress.

Answer 52

Wide range of expression * Political opinion * Journalistic freedom * Artistic expression * Commercial information

Answer 53

* Political * Journalistic

Answer 54

* Blanket policy * Journalists visiting convicted criminals to undertake that interveiw contents would not be used in professional capacity * Offended the principle of free speech * Had been crucial to uncovering miscarriages of justice in the past | Note that common law free speech relied upon, not art 10

Answer 55

* Freedom of speech * Lifeblood of democracy * A safety valve * People are more ready to accept decisions that go against them * If in principle they can seek to influence them | R v SOS HD, ex parte Simms

Answer 56

* Open Door Counselling and Dublin Well Woman Centre Ltd v Ireland * R v SoS for Health, ex parte Wagstaff * Kennedy v The Charity Commission

Answer 57

* Absolute and unqualified injunction re: abortion information * Disproportionately interfered with applicant clinics freedom and violated article 10

Answer 58

* Holding in private the inquiry into Harold Shipman * Contravened art 10 * Interfered with reception of info that others wished to impart

Answer 59

* No general right of freedom of information. * Majority of the SC found there was no free-standing positive duty of disclosure imposed by art 10?

Answer 60

* No it does no * **Kennedy v The Charity Commission**

Answer 61

* Unsder s**10(2)** can interfere * as **PBL** * in pursuit of a **legitimate aim** * A **proportionate** means.

Answer 62

* Same as test under article 8 and 5 * Key case = **Sunday Times v UK** & **Gillian and Quinton v UK**

Answer 63

* Interests of national security * **Territorial integrity** * Public safety * Prevention of disorder or crime * Protection of health or morals * **Protection of the reputation or rights of others** * **Preventing the disclosure of information received in confidence** * **Maintaining the authority and impartiality of the judiciary**

Answer 64

* **Official Secrets Act**, can be used alongsided action for **Breach of Confidence** | Spycatcher; Brind v McLaughlin v UK; Miranda v SoS HD

Answer 65

* Serialisation in newspapers of a book called **Spycatcher** * Written by British Intelligence service former member * **The Observer and Guardian v UK** * AG obtained interlocutory injunctions preventing disclsorue of contents - pending injunctions. * **Period before publication in USA** - injunctions necessary as reasons "relevant" "sufficint" "proprtionate" to aim pursued. * **Period ending with final England Determination** - found disproportionate, following publication in USA damage had been done. No interest in confidentiality. | Legitimate interest 10(2)

Answer 66

* Direction made by Home Sec * Preventing recorded speech from certain named organisations, including Sinn Fein, being roadcast * A decision which endorsed the judgment of HoL * With **reference to margin of appreciation** permitted to states - the ban was **proportionate in the interests of national security** | Legitimate interest 10(2) - National Interest

Answer 67

* Journalist stopped by police at Heathrow under **s7 of Terrorism Act 2000** * Encrupted Storage Devices obtained by Edward Snowden * Confiscated from him * CoA rejected argument that case concerned protection of journalistic sources. * Not "prescribed by law", because **lack of adequate safeguards** in form of independent scruitny **Suseptible to arbitrary useage** * Consequently provision was found to be **incompatible with article 10** | Legitimate interest 10(2) - National Interest

Answer 68

* No violation of art 10 rights when HD had excluded Iranian dissident politician, Maryam Rajavi (who lived in Paris) from the UK. * She had been invited by two members of the HoL * HS concerned about Iranian-UK political relations * Court dismissed attempts by the UK gov to say the ECHR did not apply when involving a foreign state not sharing values in Convention. * **Confirmed the article 10 was engaged** - but not sufficiently significant to risk Iranian relations. * **Found that interference was proprotionate** ## Footnote Legitimate interest 10(2) - National Interest

Answer 69

* R(Laporte) v CC of Gloucestershite * R(Gallastegui) v WCC

Answer 70

* Coaches on way to RAF Fairford * Intercepted and escorted back to london * Breach of the peace feared * No **Reasonable apprehension** of **sufficiently imminent** BoP. * Interference not PBL; premature and indisctiminate = **disproportionate restriction** of noth Art 10 and 11 | Legitimate interest 10(2) - prevention of disorder or crime (protest)

Answer 71

* Claimant's case challenged removal of tents from Westminister Square * Based on articles 6 * Court of Appeal reconising articles 10 and 11 were engaged * No violation, **as rights to protest remained intact in other respects**, only banned from setting up tents | Legitimate interest 10(2) - prevention of disorder or crime (protest)

Answer 72

* DPP v Ziegler (in favour of protestors art 10 / 11 rights) * R v Trowland and Decker (opposite) | Legitimate interest 10(2)

Answer 73

* Examined "lawful authority or excuse" defence in s137 of the Highways Act 1980 * In relation to obstruction of the highway * Protestors charged with offence after attempting to disrup a London arms fair. * **Protection of rights under art 10 and 11, did extend to deliberate disruption through obstruction of the highway** * The fact the protest was **peaceful, targeted and limited duration**, no other criminal action = **interference with protestors' rights had been excessive** | Legitimate interest 10(2) - (protest)

Answer 74

* Just Stop Oil protest * Public nuisance * Caused them to close QE bridge over Dartford crossing for 40 hours * Sentences of 3 years and 2 years 7 months = excessive interference with their rights given **very serious protracted disruption** that caused the danger they caused others | Legitimate interest 10(2) - (protest)

Answer 75

* Determining issues relating to state's code of moraltiy, ECtHR has often accroded a **wide margin of appreciation** * Handyside v UK * Muller v Switzerland * Wingrove v UK * Open Door Counselling ccase

Answer 76

* No uniform European conception of morality * National Authorities are in a better position to assess necessity for any restriction on freedom of expression to **uphold their own moral code** **The Little Red Schoolbook = sex ed book** * Books seized and destroyed under Obscene Publications Acts **No Article 10 violation** | Legitimate interest 10(2) - Protection of health or morals

Answer 77

* Artist contributed paintings to exhibition * Sexually graphic images * No warning to attendees. * Visitors reacted badly - Muller convicted by publishing obscene material - paitnings confiscated to protect public morals **Aim to protect public morals and "the rights of others", deemed the actions taken to have been proportionate** | Legitimate interest 10(2) - Protection of health or morals

Answer 78

* Video " Visions of Ecstacy" * Refused classification certificate - infringed on blasphemy * No violation of Art 10 * **Law of blasphemy satisfied PBL** * Banning the flm proprotionate as **wider margin of appreciation available for matters relating to morals and especially religion** | Legitimate interest 10(2) - Protection of health or morals

Answer 79

* Health an issue * Court accepted that Irish government was in pursuit of the legitimate aim of **protection of health and morals** * Ultimately did not consider interference to have bene proportionate, therefore not justified | Legitimate interest 10(2) - Protection of health or morals

Answer 80

* Right to reputation limiting freedom of expression * **Lingens v Austria**

Answer 81

* Journalist convicction for defamation of Austrian Chancellor * **Disproportionate** response to this aim. * Had the effect of criminalising statements of opinion * Imposed impossible burden of justification. **Limits of acceptable criticism are wider for politicians than citizens** | Legitimate interest 10(2) - Protection of reputation

Answer 82

* Generic phrasing * relates to number of legitimate reasons for interference with art 10 * Morality; blasphemy / offence; religous grounds; racist or terrorist rhetoric. | Legitimate interest 10(2) - Protection of rights of others

Answer 83

* Handyside; * Muller cases; * Prolife Alliance v BBC | Legitimate interest 10(2) - Protection of rights of others - morality

Answer 84

* BBC refused to broadcast party political broadcast on behalf of Prolife Alliance * **On behalf of taste and decency** * Consistent with parliamentary obligation for broadcasters to comply with taste and decency. * Graphic videos of abortions are **proprotionate to restrict** * Rather than restricting the underlying political and ehthical message = **importance of free speech** | Legitimate interest 10(2) - Protection of rights of others - morality

Answer 85

* Wingrove * Muller * Otto- Preminger-Institut v Austria | Legitimate interest 10(2) - Protection of rights of others - religon

Answer 86

* Wide margin of appreciation allowed in this area * National laws protecting religous sensibilities * Generally upheld as compatible with art `0 | Legitimate interest 10(2) - Protection of rights of others - religon

Answer 87

* Screening of Daas Liebeskonzil * Controversial and blasphemous themes * Court ordered permanent forfeiture and seizure. * Protect against expressions that are **gratuitously offensive**, **without contributing to any form of public debate.** * Protect some expression that **shocks, offends and disturbs** * **Margin of appreciation treated as having regional application within states not just nationally** *Balance between Art 9 and Art 10* | Legitimate interest 10(2) - Protection of rights of others - religon

Answer 88

Otto-Preminger-Institut v Austria * Screen showing of Das Liebeskonzil * Blasphemous theme | Legitimate interest 10(2) - Protection of rights of others - religon

Answer 89

* Generally ECtHR has provided a lower degree of protection for racist and terrorist expressions. * Unless they promote or form part of a wider public debate (**eg Brind)** | Brind; Mbala M'Bala v France; Jersild

Answer 90

* French comedian (Dieudonne) was convicted for causing "public insults towards a group of persons on religous and racial grounds" * Argued breach of his article 10 rights = Rejected * **Cannot rely on set of rights based on democracy and discrimination, undermining and mocking them through display of anti-semitism** | Legitimate interest 10(2) - Protection of rights of others - racism

Answer 91

When incompatible with the **letter and spirit** of the ECHR | Mbala M'Bala v France

Answer 92

* Journalist on Danish TV * Right wing group was openly racist and abusive on Danish TV * They were convicted under the Danish Penal Code along with the journalist * Journalist for aiding and abeting, notwithstanding they rejected there views. * **Criminal measures against journalist = disproprotionate** - reasoning to do with **applicant's motives being critical journalism** | Legitimate interest 10(2) - Protection of rights of others - racism

Answer 93

* Applicant's motives * eg Critical journalism

Answer 94

* New reporting = vital to journalists role of **public watchdog** * Punishment of a journalist could hamper the **contribution of the press to discussion of matters of public interest**

Answer 95

* Breach of confidence is a **civil remedy** preventing disclosure of "confidential information" * Can be used to ny government (Official Secrets Act) for the **legitimate aim of national security** * Need for confidentiality of sources of information can be raised in defence of actions | Spycatcher; Goodwin v UK; FT v UK

Answer 96

* National security (**Spycatcher** * Confidentiality of sources (**Goodwin v UK**; **FT v UK**; **Ashworth Security Hosp v Mirror Group Newspaper**) | Legitimate interest 10(2) - confidentiality

Answer 97

Journalist working for Engineer magazine who received confidential company information, convicted of contempt of court for refusing to disclose his source. * Violation of his art 10 rights **reiterate the importance of strong protection for serious journalism** to avoid the potentially **chilling effect** of forced source disclosure. | Applied in **FT v UK**; Legitimate interest 10(2) - confidentiality

Answer 98

* An exceptional case where a newspaper was ordered to identify its source. * Medical records of Ian Brady had been supplied **in breach of confidence and contract** by an employee at the hospital. * Unless the source was **identified and dismissed** = significant risk of further selling of confidential information. * **Disclosure of private information = an attach of an area of confientiality = protected in a democratic society.** | Legitimate interest 10(2) - confidentiality

Answer 99

* Uphold rule of the juduiciary * Cause tension in some situations * & constitutonal ideals such as open justice | Sunday Times v UK

Answer 100

* Article highlighting controversy over the Thalidomide drug and legal conflict between manfuacturers and affected children * Article pre-judged legal issues, pressurising manufactureres to frgo legal rights and seek settlment. **Courts imposed preventative restriction on publication** * Measure did restrict freedom under art 10 * Justified under art 10(2) = aim of "maintaining judicial authority * Courts held that the interfernce was **not "ncessary in a democratic society"**

Answer 101

* Injunction = high level of justification * Super-injunction * Confiscation of property **Muller** * Copyright laws **HRH Prince of Wales v Associated Newspapers** * Refuse immigration entry **R(Farrakhan) v SoS** * Limitations on election expenditure **Bowman v UK**

Answer 102

* An order restraining publication of material * Restraining information about the content of the order itself and even the fact that an order was made | Restraints on freedom of expression

Answer 103

HRH The Prince of Wales v Asscoiated Newpapers

Answer 104

R(Farrakhan) v SoS

Answer 105

Bowman v UK

Answer 106

* Argued that Art 8 imposed a positive obligation on contracting states to enact a legal measure * Requiring individuals to receive notification from media organisations in advance of them publishing information that interfered in private lives.............. Outcome?

Answer 107

* Goodwin * Jersild

Answer 108

* Muller * Wingrove

Answer 109

* Qualified right

Answer 110

**Article 10(2)** * **PBL** *(Sunday Times; Gillian and Quinton)* * Pursuant to a **legitimate** aim (see **10(2)**) * Necessary in a democratic society = **proprotionate**

Answer 111

* Particular application re: article 10 * Broader margin of appreciation to states to decide what degree of interference is necessary with expression impacting **moral and religous beliefs and views.** * But more likely to **supervise state's enforcement of article 10 in cases involving journalistic freedom and political forms of expression**

Answer 112

Broadly What constitutes ‘freedom of expression’ and the contexts in which the right operates is not defined in the article, nor has it been precisely defined by the ECtHR. Whilst the areas identified in the answer do apply to article 10, they have not been ‘closely defined’ and article 10 has been held to have broad application in terms of the forms of expression covered and the areas in which the right operates. See, for example, the case of Handyside v UK. This answer also excludes commercial information which is covered by article 10 (see Colman v UK).