Balancing conflicting interests

Question 1

1) Intro

Answer 1

Roscoe Pounds view regarding competing interests is that law is an engineering tool which can be used to balance the different interests in society to achieve social control. He believe public interests shouldn’t be balanced against private ones as public interest will always prevail.

Question 2

2) Article 2

Answer 2

• Article 2 ‘right to life’ is an absolute right which cannot be restricted or taken away.
• The state have a positive duty to protect life (Osman).
• The balance is in the individuals favour as the state must protect their right to life.
• However, Article 2 won’t be breached where the killing is proportionate to the aim of protecting others from unlawful violence (Armani Da Silva).

Question 3

2) Article 5

Answer 3

• Article 5 ‘right to liberty and security of person’ is a limited right which can be restricted, for example if a person is lawfully arrested.
• Article 5 provides protection against unreasonable detention.
• A person can only be deprived of their liberty if they have been arrested in accordance with a legal procedure.

Question 4

2) Article 8

Answer 4

• Article 8 ‘right to respect for private life, family life, home and correspondence’ is a qualified right .
• There’s no breach if the state can justify an interference which is legal & meets a legitimate aim, for example in the interests of national security (Miranda).
• The court must balance the rights of the individual against matters of public interest.

Question 5

2) Article 10

Answer 5

• Article 10 ‘right to freedom of expression’ is a qualified right which includes the freedom to hold opinions & to receive and impart info & ideas without interference by public authority.
• There’s no breach if state can justify a limit which is legal and meets a legitimate aim (Handyside).
• The courts are prepared to place a greater emphasis on the wider community interest over an individual expressing their views.

Question 6

2) Article 11

Answer 6

• Article 11 ‘right to freedom of peaceful assembly & association’ is a qualified right which needs to be balanced against the needs of other people.
• The state may justify a restriction by using the legitimate aim of public safety (Laporte).