Article 8

Cards (11)

  • Qualified right – there are limitations to this article as set out in 8(2). A balance
    must be struck between the rights of the individual and the community as a whole.
    • If someone can show that their right has been interfered with, the
    state has to show that the interference was justified. They will use the following criteria:
    • Does the act meet the legitimate aim?
    • Is it arbitrary, unfair or irrational?
    • Does it impact the very essence of the right?
    • Is it the minimum interference possible?
    • Is there a balance between competing interests?
  • The state must positively respect and take steps to
    protect these rights.
    Sheffield and Horsham v UK (1999) – held not to be a
    breach, but did encourage the UK to change the law in recognition of gender identification so fulfilling
    their positive obligations.
  • Private life
    The meaning of private life is very wide and must not be mixed up with the concept of 'privacy'
  • Private life cases
    • Peck v UK (2003)
    • Pretty v UK (2002)
    • Bensaid v UK (2001)
    • Halford v UK (1997)
    • AB v Secretary of State for Justice (2009)
  • Peck v UK (2003)

    It was held that 'private life' is not capable of 'exhaustive definition'
  • Pretty v UK (2002)

    • It was held to include 'physical and social identity, gender identification, name and sexual orientation'
    • The case emphasised the importance of personal autonomy and dignity
  • Bensaid v UK (2001)

    • Mental health must be regarded as a crucial part of private life
    • Schizophrenic who was denied access to medical treatment if returned to another country
  • Halford v UK (1997)

    Surveillance is included and can be a breach of the article
  • Gender Recognition Act 2004 - A person of either gender who is aged at least 18
    may make an application for a gender recognition certificate.
  • AB v Secretary of State for Justice (2009)

    • Claimant asked for judicial review of her decision not to be moved to a female prison
    • The decision not to move her breached article 8
  • Personal data
    Includes things such as DNA or medical records