It is a guideline to use which includes statutes and case law relating to the UK but perhaps relevant for other EU countries. Only looks closely at 3 issues!
3. Absolute Rights
• Right to LifeArticle 2
• Prohibition of TortureArticle 3
• Prohibition of Slavery and Forced LabourArticle 4
• Right to Liberty and SecurityArticle 5
• Right to a Fair TrialArticle 6
• No Punishment without LawArticle 7
4. Qualified Rights
• Right to Respect for Private and
Family LifeArticle 8
• Freedom of Thought, Conscience
and religionArticle 9
• Freedom of ExpressionArticle 10
• Freedom of Assembly and
AssociationArticle 11
5. Other Rights
• Right to MarryArticle 12
• Right to an Effective RemedyArticle 13
• Prohibition of DiscriminationArticle 14
• Derogation in Time of EmergencyArticle 15
• Restrictions on Political Activity of AliensArticle 16
• Prohibition of Abuse of RightsArticle 17
• Limitation on Use of Restrictions on RightsArticle 18
7. History
1941 Atlantic Charter
Post-war blue print
1. No key territorial gains
2. All people have the right to self determination
3. Freedom from want and/or fear
1948 – Universal Declaration on Human Rights (UDHR)
1950 – European Convention on Human Rights (ECHR)
British led document (Sir Maxwell Fife
1966 – access to redress
1997 – Rights Brought Home (New Labour White
Paper)
Rationale was about time and cost of going to Court of Justice
1998 – Human Rights Act (HRA)
8. Human Rights Act 1998
Applies to:
Public bodies
Central government
Local government
Public service providers
Agencies of public bodies
Does NOT apply to
Parliament
Anti-terrorism and
national security are
contested areas
Habeas corpus = article 6
Internment reintroduced
“Victim test” – section
7, article 34
Have to be a victim or
potential victim
Exhausted all other
available proceedings
domestically
Apply no more than 6
months after matter
concluded in domestic
courts
9. Benefits (principally):
1. Ensures consistent legal interpretation
2. Obliges public authorities to comply
Refers to all public bodies and their agents
Legal and political debate given definition
3. Delay and cost reduced
4. Symbolically – cultural shift
5. Better dialogue between UK judiciary and
European Court of Human Rights
Mutual respect
10. Case Law
Terrorism and national security
• Ireland v UK 1980
• Internment – articles 3 and 6
Criminal law – procedure and sentencing
• Attorney General Reference 2004
• Delay – article 6
• R v Loosley 2002
• Entrapment
• Bulger and Criminal Justice Act 2003
• Crime and Disorder Act 1998
• Abolished doli incapax
Immigration and asylum
• Afghan hijack affair
• torture
• Soering 1989
• Death penalty
Family, gender and child law
• Res
Mental health laws
Travellers rights and free movement
11. More detailed look at some
articles
Freedom of expression – article 10
National security
Privacy – article 8
12. Article 10 – Freedom of Expression
Article 10 is a qualified right
1-7 absolute rights
8-11 subject to exceptions
Provided in common law and ECHR, and then the
HRA 1998
Lord Steyn – “primary right” in democracy
Relates to
National Security
Privacy
13. Statute and Case Law
Statute Cases
Contempt of Court Act
1981
Official Secrets Act 1989
Data Protection Act 1998
Human Rights Act 1998
Freedom of Information
Act 2000
Racial and Religious
Hatred Act 2006
R v. Advertising Standards
Authority Ltd, ex parte Vernons
Organisation Ltd. 1992
Silverton v Gravett 2001
Wagstaffe 2001
A v. B plc (Flitcroft v. MGN Ltd)
2002
R v. Perrin 2002
R v. Shayler 2002
Hammond v. DPP 2004
British American Tobacco 2004
Attorney General v. Scotcher 2005
CTB v. News Group Newspapers
2011
14. Key points
National security vs. freedom of expression
Freedom of the press/ social media
Public interest
Public disorder, potential for crime
Tolerance of others
Article 17 and 18 ECHR
Problematic legislation
Vague, broad, interpretation
15. National Security
Relates to (not exclusive):
Article 10 – freedom of expression
Article 8 – privacy
Article 5 – liberty and security
MI5, MI6, GCHQ – security agencies
Work with criminal intelligence agencies (special branch)
Funded by War Office but part of Foreign Office
National security main reason for withholding
information
16. Statute and Case Law
Statute Case
Official Secrets Act
1911, 1989
Public Records Act
1958
Data Protection Act
1984, 1998
Intelligence Services
Act 1994
Freedom of Information
Act 2000
R v. Ponting 1985
The Observer and
Guardian v. UK 1990
(Spycatcher 1986)
R v. Shayler 2002
Katharine Gun 2003
Attorney General v.
Scotcher 2005
17. Article 8 and Privacy
No comprehensive legislation in UK
No action for breaches
Glidewell Report 1991 called for statute
ECHR and HRA 1998 allow for privacy
Qualified right – states can interfere with this right
Open to wide interpretation
Law of confidence developed from commercial and
corporate law
No comprehensive law, statute provides some measure of
protection
Relates to:
Article 10 – freedom of expression
National Security
Prisoner‟s Rights
18. Statute and Case Law
Statute Case
Consumer Credit Act 1974
Rehabilitation of Offenders Act
1974
Data Protection Act 1984
Interception of Telecommunications
Act 1985
Security Service Act 1989
Broadcasting Act 1990, 1996
Police Act 1997
Protection Against Harassment Act
1997, 2012
Human Rights Act 1998
Regulation of Investigatory Powers
Act (RIPA) 2000
Bernstein of Leigh v. Skyviews and
General Ltd. 1978
Malone v. Met Police 1979
Kaye v. Robertson and Sport
Newspapers Ltd 1991
Douglas v. Hello! Ltd 2001
A v. B plc (Flitcroft v. MGN Ltd) 2002
Wainwright v. Home Office 2003
HRH Prince of Wales v. Associated
Newspapers Ltd. 2006
Mosley v. News Group Newspapers
Ltd. (No. 3) 2008
AMP v. Persons Unknown 2011
CTB v. News Group Newspapers Ltd
and Anor 2011
19. Other Points
All 3 things need to be proven prior to court
Information is confidential
There is a duty to keep information confidential
The proposed use of information is incompatible with this
duty
Lots of these cases are about celebrities and the
media
Naomi Campbell case – photographed coming out of
rehab
Duchess of Cambridge case – photographed topless on
holiday, and published in various European countries
Issues about the internet – social media e.g. Giggs case
21. Bernstein of Leigh v. Skyviews and General
Ltd. 1978
Article 8 - Privacy
Aerial photograph taken of house
Question about airspace ownership
No trespass – did not invade privacy
Adjoining owners have no right to obstruct
neighbour‟s land
Plane did not effect the use of the land
22. R v. Ponting 1985
National Security
Civil servant leaked confidential documents to
opposition MP
To raise issue in Parliament – Parliamentary privilege
Concerned lying about the sinking of a ship during
Falklands
Charged under Official Secrets Act 1989
Found not guilty by jury
Judge clear there was an offence committed
23. The Observer and Guardian v. UK 1990
Spycatcher case 1986
Article 10 – Freedom of Expression
Memoirs of former secret service member living in
Australia
Parliament sought injunction
Published elsewhere
Lord Goth:
In a free society there is a continuous public interest that the
workings of government should be scrutinised
Violation of article 10
No violation of article 14 (discrimination) and not necessary to
look at article 13
Compensation awarded for costs and expenses
24. Kaye v. Robertson and Sport Newspapers
Ltd. 1991
Article 8 – Privacy
Article 10 – Freedom of Expression
Journalists gained access to a private hospital
room where celebrity actor was recovering
Conducted photographs and interview
Threatened to publish interview
Actor sought an injunction
Any article implying consent to the interview would
amount to falsehood
No actionable right of privacy in English law
25. Douglas v. Hello! 2001
Article 8 – Privacy
Article 10 – Freedom of Expression
Michael Douglas and Catherine Zeta-Jones‟
wedding photographs in Hello! but had agreement
with OK!
Interim injunction awarded, Hello! appealed
Organised publicity surrounding wedding tipped
balance in favour of allowing publication
Damages adequate
Injunction discharged
26. Wagstaffe Case 2001
Article 10 – Freedom of Expression
Shipman inquiry should be a public not private as there
is a right to the information found
Victims families not consulted – 70 approved
Private so it would be quicker and more likely to have
witnesses
Press sought judicial review
National Health Act 1977 did not apply because it involved
agencies outside the NHS
Public interest
Application for judicial review allowed
Allowed to be held in public – important right for public to
know
27. R v. Perrin 2002
Article 10 – Freedom of Expression
Distribution of content via the internet
Pornographic images
Servers not in the UK
“Downloading” in the UK is “publication”
Irrelevant where it was uploaded
Offence had been committed
28. A v. B plc (Flitcroft v. MGN Ltd) 2002
Article 8 – Privacy
Article 10 – Freedom of Expression
Married footballer sought injunction from the media
disclosing information of sexual activities
Freedom of press vs. Privacy
Even when there is no public interest in information
Defendants‟ appeal allowed
The more stable the relationship the more significance
given to it
Marriage permanent vs. affairs
29. R v. Shayler 2002
Article 10 – Freedom of Expression
National Security
Former member of secret services disclosed
information and charged under the Official Secrets
Act 1989
Question whether he could have public interest
defence, if not use article 10, if not then use a
declaration of incompatibility
Should have used appropriate channels
Article 10 not absolute
Sufficient safeguards available
30. R v. Secretary of State 2004
British Tobacco
Article 10 – Freedom of Expression
Tobacco Advertising and Promotion (Point of Sale)
Regulations 2004 allowed
Aimed at deterring pubic from smoking
Not a disproportionate restriction of commercial free
speech
5 companies involved
Acknowledged health risk and preventing influencing
children
Unimpressed with deterring adults as smoking is legal
Application refused due to health and social policy
31. Attorney General v. Scotcher 2005
Article 10 – Freedom of Expression
National Security
Juror wrote to mother of convicted disclosing jury‟s
deliberations
Intention to expose injustice
Not a defence of the Contempt of Court Act 1981
Could have written to judge, lawyer, Court of Appeal, etc.
Guilty verdict
Only because it was written to the wrong authority
Little can be done to expose injustice in this process
32. Mosley v. News Group Newspapers Ltd (No
3) 2008
Article 8 – Privacy
Article 10 – Freedom of Expression
President of FIA filmed engaging in sado-
masochistic activities in private flat
Claimed there were Nazi elements/role play with
published video on NGN website
Interim injunction denied as access to footage was
already widely accessible
Mosley award £60,000 damages
Nazi element could not be proven
If there had there would have been public interest
33. R v. Perrin 2002
Article 10 – Freedom of Expression
Distribution of content via the internet
Pornographic images
Servers not in the UK
“Downloading” in the UK is “publication”
Irrelevant where it was uploaded
Offence had been committed
34. R v. Perrin 2002
Article 10 – Freedom of Expression
Distribution of content via the internet
Pornographic images
Servers not in the UK
“Downloading” in the UK is “publication”
Irrelevant where it was uploaded
Offence had been committed
35. Wainwright v. Home Office 2003
Article 8 – Privacy
Mother and son stripped searched on prison visit for
drugs
Breach of Prison Rules, humiliated and distressed
Son mentally impaired and developed PTSD
Trespass against both persons had been committed.
Son‟s “trespass” amounted to battery
Awarded £2,600 and £4,500 respectively
Appealed trespass charges
No common law tort of invasion of privacy
Needed legislation not common law
Used ECHR and HRA 1998 to fill gaps
36. Katharine Gun Case 2003
Article 10 – Freedom of Expression
National Security
GCHQ worker
Leaked emails about spying intimidation surge prior
to invasion of Iraq
UK-US
Deemed in national interest
Not prosecuted, case dropped
Lots of public/internet support
37. HRH The Prince of Wales v. Associated
Newspapers Ltd 2006
Article 8 – Privacy
Article 10 – Freedom of Expression
Extracts of a journal by Charles written on his
official visit to Hong Kong in 1997 were published
Breach of confidence and copyright
Public interest defence by newspapers
Court held that publication would be restrained
„an arguable case that they contain private confidential
information of a sensitive nature‟
38. CTB v. News Group Newspapers Ltd 2011
Ryan Giggs Case
Article 8 – Privacy
Article 10 – Freedom of Expression
Article published in The Sun about footballer‟s
affair – defendant not named but right expired next
day
Giggs wanted injunction
Appeared Giggs was blackmailed with information
Giggs would get injunction but information already
in public (Twitter etc.)
Nothing left to protect
39. AMP v. Persons Unknown 2011
Article 8 – Privacy
Phone stolen at university contained private
images of family and friends, and sexual
Images uploaded to web, images removed by host
but used by „persons unknown‟ to blackmail
claimant
Images uploaded to „BitTorrent‟ with claimant‟s name
attached
„Persons unknown‟ as it is lengthy to find IP
addresses and names
Reasonable expectation of privacy for images
41. 2012
1. „The Human Rights Act 1998 and the Police and Criminal Evidence Act
1984 are wholly ineffective as a means of preventing miscarriages of
justice.‟ Do you agree with this statement? Justify your answer
2. „Enjoyment of civil liberties no longer stops at the prison gates.‟ Explain
and assess this statement.
3. To what degree is a balance struck between the interests of a state in
withholding information and the interest of the individual in acquiring
government information?
4. Is there a proper balance between freedom of the press and privacy?
5. Why despite recent changes to the Sex Discrimination Act 1975 and Race
Relations Act 1976 do applicants still face difficulties in bringing a case?
42. 2011
1. “One of the hallmarks of a free society is the ability of its citizens to go about their
business without the need to explain to anyone in authority what they are doing.”
(Stone, 2004). Critically evaluate this statement in the context of the use of police
powers in the UK
2. After reviewing the current legislation on freedom of expression, critically assess
whether it manages to find a balance between important conflicting interests.
3. Critically examine the achievements and failures of the Commission for Racial
Equality, and the Equal Opportunities Commission, in preventing discrimination and
protecting civil liberties in the UK.
4. Do you agree with the argument that, prior to the Human Rights Act 1998, English
law did not recognise a right to privacy? If so, on what basis?
5. Critically assess the role which the European Convention on Human Rights has
played in strengthening and defining the rights of prisoners.
6. „The general attitude towards official government information in the UK has
traditionally been one of secrecy and denial.‟ Critically assess this claim.
43. 2010
1. The introduction of the Human Rights Act 1998 was superfluous, as citizens of the UK have
historically always enjoyed guaranteed civil liberties. Discuss.
2. The civil rights of prisoners are left at the prison gates. Critically evaluate this statement.
3. The widespread use of CCTV in the UK is essential to the government‟s fight against crime and
poses no threat whatsoever to individual privacy. Do you agree? Give reasons for your answer.
4. The serious miscarriage of justice cases during the 1970s have led to increased scrutiny of
police powers of detention and questioning along with greater safeguards for suspects. Discuss.
5. Critically examine the success of the Human Rights Act 1998 as our human rights guarantee.
6. Do you agree that the longstanding tradition of official government secrecy in the UK is finally
coming to an en? Give reasons for your answer.
7. The strict regulatory system for broadcasting in the UK may be at odds with Article 10 of the
European Convention on Human Rights (Freedom of Expression). Discuss.
8. “English law has intervened to control unjustifiable discrimination in only a limited way. It only
applies to certain types of discrimination, and only in relation to discrimination for certain
purposes” (Stone, 2009). Critically evaluate this statement.