9. Article 8 and 10
ELEMENTS NOTES KEY CASES
ARTICLE 8 i. Article 8 - Private and Family Life Costello-Roberts v UK
- to protect individual citizens against arbitrary interference of their private life Facts - A boy at boarding school was given corporal punishment and
- state must respect everyone’s: private and family life, their home and argued breach of Art 3 and 8.
correspondence Held - punishment was not breach of Art 3. Asked whether it interfered
- qualified right p 8(2) - state my interfere in accordance with the law: one of with his physical and moral integrity but found against this point.
the legitimate aims set out and as necessary in a democratic society
STRUCTURE McDonald v UK
Art 8(1) Is Art. 8 Engaged? Facts - The local authority reduced the level of night time assistance
- if state interferes with person’s right to respect for private life, family life, she received as part of her disability care package.
home or correspondence Held - the implications of reducing her care package interfered with
Art 8(2) Can the state justify the interference this right. States have a wide margin of appreciation in matters relating
- in accordance with the law (Sunday Times Test) to allocation of resources and did not consider the circumstances
- in pursuit of a legitimate aim (in the list in Art 8(2) compelling enough to violate Art 8.
- necessary in a democratic society - proportionality
(1) Private Life R (Nicklinson) v Ministry of Justice
- categories are not closed, it is given a wide meaning in Strasbourg Facts - applicant was paralysed after a severe stroke and wanted a
- includes, declaration that it would be lawful for a doctor to assist him to
Physical and moral integrity (Costello-Roberts v UK) euthanise or else it would be incompatible with his right to private life
Personal identity e.g, name, picture or zone of interaction of person with and autonomy.
others (including public context) (Von Hannover v Germany) Held - Courts declined to make a declaration and deferred to
Respect for human dignity and freedom parliament.
Sexual orientation and fulfilment (in family and work life) (Dudgeon v UK; ADT
v UK) Dudgeon v UK
Gender Recognition (Bellinger v Bellinger) Held - criminal prohibition of gay conduct between consenting adults
// except where it is proportionate to interfere (R(C) v SoS for Work and was an interference with the applicant’s respect for private life
Pensions) (including sexual life) under s 8(1).
Searches of the person (if there are sufficient safeguards) (Gillian and Quinton
v UK) ADT v UK
Surveillance by the State (or privacy) (if there is a clear statutory framework) Held - consensual sexual activity between 5 adult men in the
(Khan v UK) applicant’s home was a matter of private sexual behaviour protected
+ Regulation of Investigatory Powers Act 2000 has a test for legal/illegal by Art 8 and could not be criminalised as this would beach Art 8.
state surveillance
: authority must obtain/ carry out covert surveillance considering Bellinger v Bellinger
necessity and proportionality (R (Wood) v Commissioner of Police of the Held - Declaration of incompatibility was made with s 11(c) of the
Metropolis; Wilson v Metropolitan Police Commissioner) Matrimonial Causes Act 1973 because it did not recognise gender
(2) Family Life reassignment. It was incompatible with Art 8 and 12.
, - involves: spouses, partners, children R (C ) v SoS for work and pensions
- // not restricted to traditional family unit or relationships dependent on DWP policy on retaining info relating to gender reassignment for the
marriage (Kroon v Netherlands) customer information system database was a proportionate
Immigration cases interference with Art 8 rights.
- where expelling one from a country may disrupt a family unit, could engage
Art 8 (Abdualaziz Cabales and Balkandali v UK) R (Gillian) v Commissioner of Police of the Metropolis
: must be over 21 to bring over a spouse (Quila v SoS for the Home Held - stop and search powers in Terriorisim Act 2000 ss 44-47 were
Department) not incompatible with Art 8. People are generally willing to have bags
// impacted unforced marriages so did not achieve leg. Aim searched and be searched superficially.
: can not expel one for being born outside of wedlock (R (Johnson) v Secretary
of State for the Home Department) Gillian and Quinton v UK
Other family cases Article 8 was engaged because there were insufficient safeguards in
- should strike a balance between both applicants decisions and desires for the domestic legislation to protect one against arbitrary interference
family life (Evans v UK) with Art 8 - so were not in accordance with law.
- should not prohibit same sex relationships (Steinfield & Keidan v SoS for
Education) Khan v UK
- should not prohibit abortions Re Northern Ireland Human Rights Commission Facts - Police installed a hidden listening device in a hotel to hear
(NIHRC) applicants discussing a drug deal. There was no legislation on the use of
Necessary in a democratic society this device.
- Interferences are necessary if they answer a pressing social need and are Held - surveillance could be in accordance with the law if there is a
propionate to the legitimate aim pursued (Handyside v UK) clear statutory framework. Because there was not, this was a breach of
- Inherent in the whole of the convention is a fair balance between general Art 8.
interest of the community and the requirements of protection of the
individual’s fundamental rights’ (Soering v UK) R (Wood) v Commissioner of Police of the Metropolis
ii. Article 8 - Home and Correspondence Keeping police photos of a peaceful demonstrator engaged Art 8.
- other protected interests are home and correspondence Keeping the photos beyond a reasonable time when it was clear that
- the in accordance with the law test is the same as the prescribed by law test in no crimes were committed was disproportionate and a branch of Art 8.
Art 5 and legitimate aims in para 8(2)
Home Wilson v Metropolitan Police Commissioner
- home life should be respected (no provision of a home) Facts- Mark Kennedy, a police officer, infiltrated an environmental and
- person’s home should be protected from invasion and intrusion political activist group in Sumac Centre in Nottingham. He entered
- maintains situation where person is accustomed to permanence and comfort sexual relationships with women including Kate Wilson without
Monitoring of the home revealing his identity. Kate said Art 3, 8, 10, 11 and 14 were violated.
- only allowed if visits were not frequent and did not lead to disclosure of Mark admitted to violating 3. 8 and 10.
private info about the offender e.g, neighbours (R (M) v Hampshire Held - all of the pleaded articles were violated. Infringing on KW’s
Constabulary) private and family went beyond concessions of respondent and were
Quality of home life dipropionate. Authorisations of the Regulatory Investigatory Powers
- right to be free of other interferences e.g, noise, nuisances, smell, leakage of Act 2000 did not align with law but it was not incompatible with
waste convention rights itself.
Correspondence
ELEMENTS NOTES KEY CASES
ARTICLE 8 i. Article 8 - Private and Family Life Costello-Roberts v UK
- to protect individual citizens against arbitrary interference of their private life Facts - A boy at boarding school was given corporal punishment and
- state must respect everyone’s: private and family life, their home and argued breach of Art 3 and 8.
correspondence Held - punishment was not breach of Art 3. Asked whether it interfered
- qualified right p 8(2) - state my interfere in accordance with the law: one of with his physical and moral integrity but found against this point.
the legitimate aims set out and as necessary in a democratic society
STRUCTURE McDonald v UK
Art 8(1) Is Art. 8 Engaged? Facts - The local authority reduced the level of night time assistance
- if state interferes with person’s right to respect for private life, family life, she received as part of her disability care package.
home or correspondence Held - the implications of reducing her care package interfered with
Art 8(2) Can the state justify the interference this right. States have a wide margin of appreciation in matters relating
- in accordance with the law (Sunday Times Test) to allocation of resources and did not consider the circumstances
- in pursuit of a legitimate aim (in the list in Art 8(2) compelling enough to violate Art 8.
- necessary in a democratic society - proportionality
(1) Private Life R (Nicklinson) v Ministry of Justice
- categories are not closed, it is given a wide meaning in Strasbourg Facts - applicant was paralysed after a severe stroke and wanted a
- includes, declaration that it would be lawful for a doctor to assist him to
Physical and moral integrity (Costello-Roberts v UK) euthanise or else it would be incompatible with his right to private life
Personal identity e.g, name, picture or zone of interaction of person with and autonomy.
others (including public context) (Von Hannover v Germany) Held - Courts declined to make a declaration and deferred to
Respect for human dignity and freedom parliament.
Sexual orientation and fulfilment (in family and work life) (Dudgeon v UK; ADT
v UK) Dudgeon v UK
Gender Recognition (Bellinger v Bellinger) Held - criminal prohibition of gay conduct between consenting adults
// except where it is proportionate to interfere (R(C) v SoS for Work and was an interference with the applicant’s respect for private life
Pensions) (including sexual life) under s 8(1).
Searches of the person (if there are sufficient safeguards) (Gillian and Quinton
v UK) ADT v UK
Surveillance by the State (or privacy) (if there is a clear statutory framework) Held - consensual sexual activity between 5 adult men in the
(Khan v UK) applicant’s home was a matter of private sexual behaviour protected
+ Regulation of Investigatory Powers Act 2000 has a test for legal/illegal by Art 8 and could not be criminalised as this would beach Art 8.
state surveillance
: authority must obtain/ carry out covert surveillance considering Bellinger v Bellinger
necessity and proportionality (R (Wood) v Commissioner of Police of the Held - Declaration of incompatibility was made with s 11(c) of the
Metropolis; Wilson v Metropolitan Police Commissioner) Matrimonial Causes Act 1973 because it did not recognise gender
(2) Family Life reassignment. It was incompatible with Art 8 and 12.
, - involves: spouses, partners, children R (C ) v SoS for work and pensions
- // not restricted to traditional family unit or relationships dependent on DWP policy on retaining info relating to gender reassignment for the
marriage (Kroon v Netherlands) customer information system database was a proportionate
Immigration cases interference with Art 8 rights.
- where expelling one from a country may disrupt a family unit, could engage
Art 8 (Abdualaziz Cabales and Balkandali v UK) R (Gillian) v Commissioner of Police of the Metropolis
: must be over 21 to bring over a spouse (Quila v SoS for the Home Held - stop and search powers in Terriorisim Act 2000 ss 44-47 were
Department) not incompatible with Art 8. People are generally willing to have bags
// impacted unforced marriages so did not achieve leg. Aim searched and be searched superficially.
: can not expel one for being born outside of wedlock (R (Johnson) v Secretary
of State for the Home Department) Gillian and Quinton v UK
Other family cases Article 8 was engaged because there were insufficient safeguards in
- should strike a balance between both applicants decisions and desires for the domestic legislation to protect one against arbitrary interference
family life (Evans v UK) with Art 8 - so were not in accordance with law.
- should not prohibit same sex relationships (Steinfield & Keidan v SoS for
Education) Khan v UK
- should not prohibit abortions Re Northern Ireland Human Rights Commission Facts - Police installed a hidden listening device in a hotel to hear
(NIHRC) applicants discussing a drug deal. There was no legislation on the use of
Necessary in a democratic society this device.
- Interferences are necessary if they answer a pressing social need and are Held - surveillance could be in accordance with the law if there is a
propionate to the legitimate aim pursued (Handyside v UK) clear statutory framework. Because there was not, this was a breach of
- Inherent in the whole of the convention is a fair balance between general Art 8.
interest of the community and the requirements of protection of the
individual’s fundamental rights’ (Soering v UK) R (Wood) v Commissioner of Police of the Metropolis
ii. Article 8 - Home and Correspondence Keeping police photos of a peaceful demonstrator engaged Art 8.
- other protected interests are home and correspondence Keeping the photos beyond a reasonable time when it was clear that
- the in accordance with the law test is the same as the prescribed by law test in no crimes were committed was disproportionate and a branch of Art 8.
Art 5 and legitimate aims in para 8(2)
Home Wilson v Metropolitan Police Commissioner
- home life should be respected (no provision of a home) Facts- Mark Kennedy, a police officer, infiltrated an environmental and
- person’s home should be protected from invasion and intrusion political activist group in Sumac Centre in Nottingham. He entered
- maintains situation where person is accustomed to permanence and comfort sexual relationships with women including Kate Wilson without
Monitoring of the home revealing his identity. Kate said Art 3, 8, 10, 11 and 14 were violated.
- only allowed if visits were not frequent and did not lead to disclosure of Mark admitted to violating 3. 8 and 10.
private info about the offender e.g, neighbours (R (M) v Hampshire Held - all of the pleaded articles were violated. Infringing on KW’s
Constabulary) private and family went beyond concessions of respondent and were
Quality of home life dipropionate. Authorisations of the Regulatory Investigatory Powers
- right to be free of other interferences e.g, noise, nuisances, smell, leakage of Act 2000 did not align with law but it was not incompatible with
waste convention rights itself.
Correspondence
