Find out more about Article 8 for prison law practitioners in this webinar
Hello. I'm Dean Kingdom, explaining coast litters. I'm primarily a public lawyer lawyer with a special ism in prison, or and today I'm going to talk to you about art, way to the human rights. The right to a private and family life within my practice I regularly use are to wait to bring challenges against, namely, the prison service in the prison authorities. Today, we're going to cover a wide area. Include him definitions contained within article weight, such as What is a private life? What is home life? We're going to consider the way in which the government can restrict the application off the rights and we're going to have some practical examples, including key cases from the European Court of Human Rights in 2018. So let's start are to wait itself well. What the law actually says is everybody has the right to his or her private life and family life, his home, her home and correspondence. It is clear in law that there should be no interference by a public authority with the exercise of this right, except such as is in accordance with the law. Andi is necessary in a democratic society, breaking that down fervor. Essentially, what that means is that it must be in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of helpful moles, or for the protection of rights and freedoms of others. It is clear in law that you have the right to live your life privately without any government interference. The right to have private and family life, protect your dignity and autonomy. You're right, Teoh. Be independent and make decisions about your own life as an example that includes your sexuality, the right to personal autonomy, respect for your private and confidential information, including the story and sharing and data about you. And we're going to hear later about some of the cases involving challenges around that, the right not to be on subject to unlawful state interference on the right to control the spreading of information about your private life, including photographs taken covertly, The courts have interpreted the right to a private life very broadly because the courts have interpreted the right to a private life very broadly. It covers matters such as sexual orientation, lifestyle the way an individual looks and dresses. It also includes rights to control who you see and who touches your body for an example. This means that public authorities cannot do things like leave you undressed in a busy world or take a blood sample without your permission. The concepts off your private life also covers your right to personally personal identity and to forge friendships and other relationships. It's includes rights. Participate in essential economic, social, cultural and leisure activities. In some circumstances, public authorities may need help. May need to help you enjoy your right to a private life, including your ability to participate in society. This right also means that media another from interfering in your life. It also means that personal information about you, including official records, photographs, letters, diaries a medical records should be kept securely and not shared without your permission accepting circumstances. So what is meant by family life? Will Article eight covers the right toe. Have contact on enjoy family relationships without interference from the government. This includes the right to live with your family and where this is not possible toe. Have contacts, an example. Where would not be possible within the area of work that I do is prison all. Now there's a number of prisoners where social services are involved, and they probation service and ultimately the prison say that the individual cannot have contact be most commonly, as a result of the nature of their offense is it may be, for instance, that the individual committed that, say, a murder on a random stranger. But because they've committed the grave active murder, it said that the individual would be a risk to say their child and contact is prevented. And it's all about getting the balance on the proportionality. Correct. Now, family life doesn't just mean your own Children. It can be taken refer to, for instance, and I'm married, couple on adopted child, an adoptive parents, foster parents or foster child. What is meant by home, what there is that there is no actual rights to have a home. And what I mean by that is there is no absolute right to housing. It is writes that someone must be up to enjoy their home peacefully, and this means that public authorities should stop any interference without good reason, such as issues around entering or living in your home. without good reason. They shouldn't and so without permission. And this applies whether or not you own your home respect for your home. Well, of course, you have the rights notto have your home life interfered with, including by a unlawful surveillance, unlawful entry and evictions, which don't follow a proper process. Respect for correspondence. And again, this is another subsection of Article eight that features on a regular basis. Within my practice, you have the right to uninterrupted and uncensored communication with others, a right that's particularly relevant when we consider the phone tapping on the reading of private communications. Of course, this isn't an absolute right article. Wait, there are some qualifications, and when you think about it, logically, they would have to be. And there's, of course, naturally situations where the authorities can interfere. This is only allowed where they can show that it's lawful, necessary and proportionate. On examples include to protect national security, public safety to prevent further disorder or crime, protect helpful morals and protect the rights and freedoms of others. I refer back to my day to day practice, and in a common example of this is requests for licence conditions for those released into the community. Normally, it's to protect the rights of others and to protect future disorder and crime. But what we tend to see is a real lack of cogent reasoning provided why it's necessary and proportionate. Um, you have to balance that. And the Pro Bowl tend to be very good at balance. In I'm making that balance in assessment action is proportionate when it is appropriate and no more than necessary to address the problem concerned. I know I keep referring back to my practice, but it's a very good examples. To be hard won here would be an exclusion zone, so prisoner released on life license cannot end to a certain area of the country without prior approval. Now, on some occasions, it may be a few roads within a city or a town. On other occasions, it may be set that an exclusion zone of an entire county is being put forward, and you have to balance out well. Where do the individuals you're seeking to protect actually live? Do they work, undertake leisure activities in a certain part of the area? Who is it to avoid a chance encounter and you have to consider the necessity proportionality from both sides. One thing to make clear is public pictures don't necessarily enjoy the same privacy as others do. Sometimes the public interest may justify publishing information about them. Eyes interfere with the right to privacy. People now talk first. Practical examples Article eight is used across the broad spectrum of different matters on is, it's an article where one can really try and think outside the box. Onda actually put forward points and matters that impact on necessity and proportionality. I'm really but there, too show and sort of push the decision maker into a really reasoned balancing exercise, because without that reasoned balancing exercise, it's very difficult in legal proceedings to show the Actually, they undertook the exercise correctly. There's the well known case of South Bucks District Council versus Porter, where the court said that in order for a decision to be intelligible, it must be one that the persons subjects in a decision can properly understand and that there is no doubts that they considered irrelevant considerations or erred in law. And I think that's a case that I often using pre action protocol letters, and I always have at the forefront of my mind because I, public official under time pressure with busy caseload can often just focus in on a decision. Make the decision without properly reasoning it. Now you're going to hear a number of examples, some of which have gone through the courts, others that haven't where you can really start to think about in your own practice how you could implement Andi sort of built the argument around breach of article waiting to ensure that articulates a properly considered by anybody making a decision. So a practical example is within the LGBT community. Families who had been unlawfully spied upon by councils won a crucial, um, case in the face of increasingly or for it Terry in mass surveillance. This meant that the states must know interfere with the right to privacy, although it can be limited in certain circumstances. The case of N. G. O s versus the United Kingdom was a case taken by not number of NGOs, including Liberty, Amnesty International Privacy International in 11 other human rights and journalism groups, along with two individuals based in Europe and Africa. I believe it was a five year legal challenge to the U. K's I award, Trinley brought in intrusive secret spying powers, which were first revealed by Edward Snowden in 2018. The European Court of Human Rights ruled that the U. K's bulk interception regime had violated not only article weight but Article 10 free expression. The court found the intercepting communications data. The records of who, what, when, where and how we communicate was a serious breach of privacy, Aziz one could imagine. Judges also ruled that the U. K's regime for all fries in bulk interception was incapable of keeping the interference with our rights. So what is necessary in a democratic society? This is one where this is an article where the government of the day always looks to push the boundaries. And it's important that as lawyers, we look at ways to ensure that the write checks and balances air there, and that's a clear example that is heartfelt story coming up next on the individual. Here was Jenny Pattern. Now, in 2000 and eight, the Council of Paul received an anonymous tip off that's Mrs Pattern and her family were lying around the school catchment area and the fact that they lived within that certain school catchment area. Well, this anonymous tip off was doesn't appear to have been made in good faith. In actual fact, she'd lived in the catchment area for 10 years. The local council, I think, thought they were sort of James Bond espionage. M I five m I six agents. Andi undertook significant undercover surveillance for free weeks, officials said. Outside Jenny's home, making notes, taking photographs, they even followed her under partner, taking the Children to school. The family had no idea this was happening until the state surveillance was exposed to meeting with the council, the Investigatory Powers tribunal. The court considers cases about state spy and found that Pool Council well, of course, breached our to Kuwait. And that's That's a very live example of how some decision makers believe they can push the boundaries of article waiting and simply act as as they wish. And I think it's a massive that lawyers need to be properly appraised off. Mindful off because local councils often have ward councillors that have no real background in public. Lioce Andi may not necessarily be up to speed with the relevant law and not on the end of significant legal advice regularly and you know the way they act can exceed the powers of which, uh, governed by law. Another practical exam is a physical disabilities team at a local authority decided to use support workers to help service users enjoy social activities, visits to pubs and clubs. But when a service user was asked to be accompanied to a gay pub, the scheme manager refused on the grounds that the support workers were not prepared to attend a gay venue. Naturally, it found that there was a breach of Article eight No, Goodwin and I vs United Kingdom 2000 into the EEC HR explored. It shows for transsexual people in relation to their private life and the ability to marry. This was a landmark decision for the treatment of transsexual people, a group which had not being recognized previously in UK law. I being within their acquired gender labels hold a birth certificate showing their acquire gender and able to marry someone up off the opposite gender. The court ruled that the treatment by the UK government violated the rights, private life and the rights and marry. This meant that the government had to address this head on and it led to the introduction off the Gender Recognition Act 2004. Now I do a lot of work with transgender prisoners and they have been in the news a lot because of the actions of one individual. As a result of that, the consequences for all transgenders prisoners have bean quite significant in that the authorities have been looking to return any transgenders in the female with state back to the mountain estate. So I'm currently involved in a case where a transgender client had obtained her gender recognitions certificate so therefore, legally recognized his female. She was then put into the female studies hand. The decision was taken to put it back into the Maoist A without having seen any of her medical records. Any risk assessments. We submitted a letter before claim ask him for a copy off the relevant decision, but also seek in a injunction to prevent them taking that step. Naturally, they conceded, and as a result of that, have decided not to transfer her back to the mouth of state. Of course, have not given any real reasons as to why, but it's clear to us that in law they had no power to do so, bringing it all together. I'm just going to run through some of the key Article eight cases stemming from the European Court of Human Rights. In 2018 there's the case of Hadi's A vs Bulgaria, 45 to 85 This involved a 14 year old girl whose parents have been detained for questioning on the issue was whether there was a duty to ensure that she was looked after it was hurt. There was no violation in Liberte. L I B E R T vs France number 588 The individual was dismissed for use in work computer to store large volume of pornographic material. It was held to be no violation, which I laugh because it didn't surprise me. In Dennis. Off first is the Ukraine number 766 free nine. The dismissal of a judge from the position of president of the Appeal Court for failures, a properly perform administrative duties was held to be inadmissible in m l. Andi W. W versus Germany. 60798 forward slash 2010 and 6559 or 2010. The issue was whether the media, where bounds to an anonymous online material about a crime at the request of its perpetrators. In view of the imminent release, they were said to be no violation. And finally, in the case of soul ska S O. L s k a on my bicker r Y b I C k a vs Poland Frio 491 forward slash 17 and free 108 Free force. Last 17 there was held to be a violation in a case where, in the context of criminal proceedings, body was exhumed of the deceased individual against the violate against the witches off the family, and that was held to be a violation. So hopefully this short considering article weight will help you in your practice and get you thinking creatively about the balance in proportionality and necessity in decision making and when there may be appropriate legal challenges.
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