Chapter 11: ECHR Article 8 Flashcards

Question

2.5 Surveillance by the State Khan v UK (2001) 31 EHRR 1016

Answer 1

Where the police had installed a hidden listening device in a hotel and obtained a recording of the applicant discussing a drugs deal. At the time of the investigation and trial there was no legislation in the UK governing the use of such apparatus by the police.

Answer 2

The ECtHR asserted that the use of surveillance measures would only be ‘in accordance with the law‘, for the purposes of article 8(2), where a clear statutory framework existed. As this was not the case, there had been an unlawful interference with the applicant’s right to respect for his private life.

Answer 3

Since the events in the Khan case, the Regulation of Investigatory Powers Act (RIPA) 2000 has been passed, which provides a clear test for whether state surveillance is legal or not. Authority must be obtained for the carrying out of covert surveillance, and this must take into account ‘necessity’ and ‘proportionality’.

Answer 4

The retention of police photographs of a peaceful demonstrator, who was a member of the Campaign Against Arms Trade, was held to engage article 8. Moreover, the retention of the photographs beyond a reasonable period of time, when it had become apparent that he had not committed any crime in relation to the event he was protesting about, was seen to be disproportionate and hence a breach of his article 8 rights.

Answer 5

The case of Wilson v Metropolitan Police Commissioner IPT/11/167/H (30 September 2021) involved a far greater degree of state surveillance with significant consequences. As part of an undercover surveillance operation, Mark Kennedy, a police officer, infiltrated environmental and political activist groups who met at the Sumac Centre in Nottingham. He ended up entering into sexual relationships with several of the women, one of whom was Kate Wilson, without revealing his true identity.

Answer 6

Argued that several of her protected rights under article 3, 8, 10, 11 and 14 had been violated. The respondent admitted violations under articles 3, 8, and 10. The Tribunal found that there had been violations under all of the pleaded articles. With respect to article 8, it held that the infringements to Kate Wilson’s private and family life under article 8 went beyond the concessions made by the respondent and were disproportionate.

Answer 7

Which governed the police operation, were not in accordance with the law: their breadth and open-ended quality failed to provide a limit on the undercover officer’s activities. Notwithstanding the Tribunal’s decisions and that it was critical of aspects of the RIPA scheme, it did not ultimately find that the scheme itself was incompatible with Convention rights.

Answer 8

Article 8 will be engaged if a person can show that there has been an interference with their family life. The right to respect for family life will be important in cases and disputes involving spouses, partners and children. It is important to note that ‘family’ in Convention terms is a broad concept; it is not restricted to the traditional family unit. The object life is living together in order that family relationships can develop normally, and family members can enjoy one another’s company.

Answer 9

Demonstrates that the word ‘family’ in article 8 is not limited to relationships dependent on marriage. In that case, a child was born to a stable relationship between Mrs Kroon and Mr Zerrouk while Mrs Kroon was still married to Mr Kroon. Under Dutch law, it was impossible to obtain recognition of the biological father’s paternity unless the husband denied paternity. The applicants complained of a violation of article 8.

Answer 10

The Court recalls that the notion of “family life” in Article 8 is not solely confined to marriagebased relationships and may encompass other de facto “family ties” where partners are living together outside marriage.

Answer 11

Decisions by states to expel a person from a country or refuse to admit someone, may result in the separation of spouses or partners, or of parents and children. Although the Convention does not recognise a right to reside in a particular country, any action by a public authority that might disrupt the family unit may engage article 8.

Answer 12

Where the three women applicants, who had lawfully settled in the UK, had subsequently married husbands from their countries of origin.

Answer 13

The court held that the duty imposed by article 8 could not be considered as extending to a general obligation on the part of the state to respect the choice by married couples of their country of matrimonial residence and to accept non-national spouses for settlement in that country.

Answer 14

The Supreme Court held that a ban contained in the Immigration Rules on the grant of marriage visas, where either party to the marriage was under 21 years old, breached the right to family life guaranteed by article 8. The Home Secretary had argued that the raising of the age limit from 18 to 21 was justified on the basis that it sought to prevent forced marriages.

Answer 15

Although the Immigration Rules were found to pursue the legitimate aim of protecting those who might be forced into marriage, it was held that the interference with the right to family life was not ‘necessary in a democratic society’. The Supreme Court found that the interference disproportionately impacted on a greater number of unforced marriages than forced marriages. The ban did not, therefore, achieve the legitimate aim by way of the least intrusive means.

Answer 16

The Supreme Court found in favour of the appellant as they considered that his liability to deportation, by reason of the accident of his birth outside wedlock, was unlawfully discriminatory in breach of rights under article 14, read together with article 8.

Answer 17

Involved the balancing of competing family rights derived from article 8. The applicant complained that domestic law permitted her former partner effectively to withdraw his consent to the storage and use by her of embryos created jointly by them. She argued that this could be classified as a violation of her right to family life.

Answer 18

On the other hand, her former partner argued that going ahead with treatment without his consent, following their separation, would violate his private life. Effectively, he would be forced into paternity against his will. Of course, the state was not involved directly in these decisions, but Evans argued that the UK was under a positive obligation to protect her rights through enacting appropriate legislation, as the legislation in force favoured her former partner’s freedom to withdraw his consent within appropriate limitations.

Answer 19

Noting the lack of any European consensus in this area, the court did not consider that the applicant’s right to respect for the decision to become a parent should be accorded greater weight than her former partner’s right to respect for his decision not to have a genetically related child with her. In other words, the UK legislation had achieved an appropriate balance.

Answer 20

The Supreme Court held that the bar against entering into a civil partnership for opposite-sex couples, applying under the Civil Partnerships Act 2004 (CPA), was not a proportionate interference with the couple’s rights under article 14 (the prohibition of discrimination), taken together with article 8. A declaration of incompatibility was accordingly made in relation to ss 1 and 3 of the CPA

Answer 21

Is also engaged by the state’s policy on abortion. This has been a highly contentious issue in Northern Ireland, where legislation remained far more restrictive than it was in the rest of the UK

Answer 22

A majority in the Supreme Court found that the law was incompatible with article 8 as it prohibited abortion in cases of fatal foetal abnormality and pregnancy as a result of rape or incest. However, a formal declaration of incompatibility could not be made under s 4 of the HRA, as the NIHRC was not granted standing. (Refer to the chapter on HRA standing).

Answer 23

Article 8 may also be engaged if a person can show that there has been an interference with their ‘home’. The article does not give a right to be provided with a home, merely that home life should be respected.

Answer 24

The starting point in considering this aspect of the right is the idea that a person’s home should be protected from invasion and intrusion. However, the idea of respect for home and home life also extends to maintaining the situation to which a person has become accustomed, and the very permanence which gives comfort

Answer 25

The claimant was paraplegic and had become accustomed to a particular place of residence which had been adapted for her use. The health authority, which went back on its promise not to move her, was held to have violated article 8

Answer 26

Stated that the enforced move would be emotionally devastating and anti-therapeutic and was not justified under the considerations in article 8(2). (This case was held before the Human Rights Act 1998 was implemented, but the principles contained in the ECHR were still considered highly relevant by the Court of Appeal, which it considered alongside the main, ‘legitimate expectation’ JR challenge.)

Answer 27

The Court of Appeal rejected M’s argument that the practice of police officers visiting the homes of registered sex offenders, for monitoring purposes, was a breach of article 8.

Answer 28

The appellant argued that the ability of the police to seek a warrant to enter the home, if permission was not granted, under s 325 of the Criminal Justice Act 2003 meant that his consent had been vitiated. This was not accepted by the court which did not consider that a warrant was an automatic entitlement for the police.

Answer 29

On a wider level, though, the Court also considered that any interference with M’s article 8 rights was justified, as the policy was clearly designed to achieve the legitimate aim of protecting the rights of vulnerable people and was conducted proportionately.

Answer 30

Unannounced visits for monitoring purposes were considered acceptable as long as they were not overly frequent and did not lead to disclosure of private information about the offender, for instance to neighbours

Answer 31

An individual’s right to respect for his home includes not just the right to the physical area but the right to be free of other interferences such as noise, or other nuisances such as smell, or the leaking of waste. In such circumstances there may be a good cause of complaint under article 8

Answer 32

The ECtHR scrutinised government efforts to reduce the noise levels around Heathrow Airport, which was having a detrimental effect on the quality of life of the Hatton family. While the government was not held to be directly responsible for the noise, because it did not own or control the aircraft or airport, it was seen to be under a positive obligation to manage it.

Answer 33

While this was properly seen to be part of the state’s margin of appreciation, the ECtHR could still examine matters to see if this margin was properly applied. On the facts, the court in fact found no violation of article 8 but held that there had been a violation of article 13, concerning the availability of remedies in domestic law.

Answer 34

The final category of protected interests under article 8 is correspondence. This protection was typically applied to letters but, with advances in technology, it has now been extended to emails, text messages, and other modern forms of communication.

Answer 35

The ECtHR held that interceptions of the applicant’s postal and telephone communications by the police for the purpose of the prevention and detection of crime violated article 8, in that they were not ‘in accordance with the law’. This was because English law (at that time) did not ‘indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities’.

Answer 36

Correspondence was intercepted between the applicant and his solicitors. The ECtHR held there was a breach of article 8. Although there had been a lawful justification for the interference (in the form of the Insolvency Act 1986), the intercepts continued after the order had expired, so they were no longer necessary.

Answer 37

Telephone calls conducted from business premises were held to engage article 8. The case of Copland v UK [2007] ECHR 62617/00, confirmed this, and also stated that monitoring of emails and internet usage by a public employer engaged article 8.

Answer 38

The ECtHR has accorded a particularly high degree of protection to prisoners’ rights to communicate with their legal advisors

Answer 39

Was a life prisoner who had been convicted for murder. While in prison, the applicant had been advised by his solicitor of the possibility of bringing several civil actions. The ECtHR held that prison authorities may only open a letter from a lawyer to a prisoner when they have reasonable cause to believe that it contains an illicit enclosure that the normal means of detection have failed to disclose.

Answer 40

The letter should, however, only be opened and should not be read. Suitable guarantees preventing the reading of the letter should be provided, such as opening the letter in the presence of the prisoner. The actual reading of a prisoner’s mail should only be permitted in exceptional circumstances when the authorities have reasonable cause to believe that the privilege is being abused. This requirement of examining correspondence only when there is ‘reasonable cause’ was said to provide a sufficient safeguard against the possibility of abuse

Answer 41

The common law has similarly afforded considerable protection to a prisoner’s correspondence with a solicitor.

Answer 42

This case arose from a blanket policy introduced by the Home Secretary whereby cells occupied by prisoners could be searched in their absence. (This case was also considered in relation to the subject area of unreasonableness.)

Answer 43

Recognised a common law right to confidentiality over privileged legal correspondence. In respect of prisoners, he found that this right was even more fundamental as they had lost other basic rights.

Answer 44

It was found that the policy in dispute had a ‘chilling effect’, inhibiting prisoners’ willingness to communicate candidly with their legal advisers; it represented a degree of intrusion into privileged legal correspondence that was greater than that justified by the objectives which the policy was intended to serve.

Answer 45

Accordingly, a violation of the common law right to confidentiality over privileged legal correspondence was found. It was further held that the blanket nature of the policy could not be justified, as the infringement to the common law right was found to be far greater than was necessary to serve the legitimate objectives

Answer 46

Stated that despite his conclusions being reached on orthodox common law principles, the same result would have been achieved under article 8. (Note that the HRA 1998 had not come into operation at the time the facts arose.)

Answer 47

Under article 8(2) a contracting state can justify an interference with a person’s rights that fall under 8(1) if, in addition to the legitimate aim and proportionality requirements, the interference is ‘in accordance with the law’. This means that there must be a legal basis to justify the interference with the right.

Answer 48

The courts have interpreted this requirement to be the same as the ‘prescribed by law’ requirement under article 5(1). In fact, the key cases in this area concern article 10 and article 8.

Answer 49

The ECtHR held that the law in question must be accessible and sufficiently precise, to enable a person to regulate their conduct and reasonably foresee the consequences of their actions. In Gillan and Quinton v UK (2010) 50 EHRR 45 the court added that executive discretion should not be expressed in terms of unfettered power so as to provide for arbitrary action. (Refer also to the further cases discussed in the article 5 materials.)

Answer 50

In the article 8 context we have seen, above, that the UK was found to have breached this requirement in Gillan and Quinton; Khan v UK; and Malone v UK.

Answer 51

The state and public interests, often referred to as ‘legitimate aims’, are found in article 8(2) and are as follows: * National security * Public safety or economic well-being * Prevention of disorder or crime * Protection of health or morals * Protection of the rights and freedoms of others

Answer 52

The contracting state must demonstrate that it is interfering with the person’s right under article 8 in pursuance of one or more of these legitimate aims. The following cases illustrate some further examples of the article in operation, with a focus on legitimate aims.

Answer 53

A number of rights, including article 8, can be lawfully interfered with on the basis of national security concerns. This tends to be an area where the ECtHR affords a sizeable margin of appreciation to member states. However, an assertion of national security will not automatically be accepted.

Answer 54

For example, control orders issued by the Home Secretary under the Prevention of Terrorism Act 2005 have been found to engage the protection of article 8 (in addition to the rights discussed in the chapter on article 5).

Answer 55

The Supreme Court held that the imposition of a 16-hour curfew and the requirement that the appellant had to live 150 miles from his family was a violation of his right to family life

Answer 56

In Da Silva v Netherlands (2007) 44 EHRR 34, the Brazilian applicant and her daughter, a minor with Dutch nationality, argued that there had been a violation of article 8 arising from the refusal of the Netherlands to grant the applicant a residence permit.

Answer 57

Her application for residency had been refused by the Dutch authorities, who argued that her interest in staying near her daughter was outweighed by the interests of the economic well-being of the country, as she worked illegally. The ECtHR disagreed and held that there had been a violation of article 8. Although critical of the applicant’s behaviour, the court considered that the balance should fall in favour of preserving the family ties in this situation.

Answer 58

Mentioned earlier in the chapter, where the need for the local authority social services department to balance its budget and apportion public resources as fairly as possible was seen as pursuing this legitimate aim.

Answer 59

In the linked cases of R v Chief Constable of South Yorkshire Police, ex parte LS and ex parte Marper [2004] 4 All ER 193, the court did not consider that article 8 had been engaged by the measure of retaining DNA samples and fingerprints of suspects who had been cleared of criminal charges. Even if the article had been engaged, the measure was justified, given the effectiveness of the practice in preventing crime

Answer 60

The applicants were successful because the blanket and indiscriminate nature of the DNA retention policy was seen to be disproportionate. It failed to take into account the (lack of) gravity of the offences suspected or the presumption of innocence that should be enjoyed by acquitted suspects.

Answer 61

The applicant challenged a local authority’s decision to disclose to several organisations a previous conviction for indecent assault of a child, as well as a possible future conviction for a similar charge he was facing. The Court of Appeal held that the local authority had disproportionately interfered with the applicant’s right to private life as it had adopted a blanket approach of disclosing this information to all of his contacts when, crucially, the applicant did not work with children as part of his affiliation with these organisations

Answer 62

Two of the applicants challenged the ‘enhanced criminal record certificate’ scheme (ECRC) which established a blanket regime in which all previous cautions held on the police national computer were disclosed by an ECRC. The applicants had both received cautions for minor infractions, when they were children, which hampered their opportunities as young adults.

Answer 63

Held that disclosure of convictions and cautions engaged article 8 because this could adversely affect a person’s ability to engage in aspects of their private life, including working and developing relations with others. The court found that the blanket nature of the ECRC scheme was disproportionate to the identified legitimate aims in that it went beyond what was necessary to protect prospective employers and other third parties from the threat of crime. The court made a declaration of incompatibility.

Answer 64

The third applicant challenged the statutory scheme which prevented serious convictions from ever being regarded as ‘spent’. The court held that this was not a blanket policy, as it discriminated between offences which were very serious and those which were not. Accordingly, the interference was a proportionate means of achieving the identified legitimate aims.

Answer 65

Has since been approved and upheld by the Supreme Court in R (T and others) v Secretary of State for the Home Department & Another [2014] UKSC 35.

Answer 66

On the theme of data retention, the joined cases of R (Catt) and R (T) v Commissioner of Police of the Metropolis [2015] UKSC 9 provide a useful review of the system operating under the Data Protection Act 1998 for retention of information for continuing ‘policing purposes’.

Answer 67

Mr Catt was a man in his nineties who had participated in numerous political demonstrations on an entirely peaceful basis but who was indirectly associated with an organisation, some of whose members had committed violent offences. Ms T was alleged to have made homophobic remarks to a neighbour and was subsequently sent a ‘prevention of harassment’ letter by the police

Answer 68

In both cases the Supreme Court ultimately found that the systems of data retention operating were essentially proportionate in seeking to fulfil the legitimate aim of crime prevention, though there were some differing opinions amongst the justices and dissent from Lord Toulson

Answer 69

In Wainwright v UK (2007) 44 EHRR 40 two applicants were subjected to strip and intimate body searches while visiting an inmate in prison. The court held that there was no doubt that article 8 was engaged and so it fell to see whether the interference was in accordance with the law, pursued a legitimate aim and was necessary in a democratic society.

Answer 70

While the searches were held to be in accordance with the law (namely the Prison Act 1952 and subsequent rules), and they pursued the legitimate aim of prevention of crime and protecting the health of the prisoners, the court was not satisfied that the searches were proportionate to the legitimate aim, due to the intimate and poorly regulated manner in which they were carried out.

Answer 71

In Copland v UK, the applicant had complained that monitoring of telephone calls, internet usage and emails by her (public) employer violated her article 8 rights. The UK argued that any violation was justified on the basis of protecting ‘the rights and freedom of others’ by ensuring that facilities provided by publicly funded employers were not abused.

Answer 72

However, that the interference did not have any basis in domestic law and so amounted to a breach. As a result, there was no need to consider the legitimacy of the aim asserted by the UK.

Answer 73

The legitimate aim in article 8(2), referred to as the protection of the ‘rights and freedom of others‘ can also, very importantly, involve the media’s right of freedom of expression. (This area is discussed in a following chapter concerning the application of the HRA 1998 on an indirect, horizontal level.)

Answer 74

Article 8(1) sets out the four interests protected by article 8: private life, family life, home and correspondence. * These concepts have been given broad effect by the ECtHR, particularly the concept of private life which covers, inter alia, measures that affect a person’s physical, mental and moral integrity. * The right to respect for family life is also interpreted broadly and is not restricted to respect for the traditional family unit.

Answer 75

* Amongst other issues, this part of the article is engaged in relation to personal dignity; sexuality; searches of the person; state surveillance; marriage rights; immigration; and abortion. * The right to respect for one’s home entails both protection against intrusion into the home and respect to the home as a source of security and comfort.

Answer 76

* The right to respect for correspondence also engages more modern forms of communication and is particularly important in the context of prisoners. * The phrase ‘in accordance with the law’ in paragraph 8(2) has the same meaning as ‘prescribed by law’, as seen in article 5(1).

Answer 77

* There are a number of possible justifications for interference with article 8, including national security, the prevention of crime, and the protection of health and morality. These are known as legitimate aims.

Chapter 11: ECHR Article 8 Flashcards

(101 cards)