REVISION CHECKLIST FOR LECTURES 10-16

Significance of HRA 1998 s2: Courts must take into account Strasbourg jurisprudence. What is the
relevant case law?
 HRA 1998 s2: “A court or tribunal determining a question which has arisen in connection with a
Convention right must take into account any Judgment, decision, declaration of the European
Court of Human Rights”
o R (Anderson) v. SS for Home Department [2003]: Lord Bingham stated that HoL “will not
without good reason depart from the principles laid down in a carefully considered
judgment of the Grand Chamber”
o Kay v. Lambeth LBC [2006]: HoL unanimously held that HRA 1998 s2 doesn’t mean that
lower domestic courts are relieved of their duty to follow prior HoL ruling where they
conflict with Strasbourg court as this contradicted doctrine of precedent in English law;
lower English courts must still follow English precedent because presumably eventually
this conflict would arrive in front of HoL which would then resolve it
o R (Ullah) v Special Adjudicator [2004] UKHL 26: established mirror principle; Lord
Bingham stated that the “duty of national courts is to keep pace with the Strasbourg
jurisprudence as it evolves over time: no more, but certainly no less”
o R (Marper) v Chief Constable of South Yorkshire [2004] UKHL 39: Lady Hale stated that
“we must interpret the Convention Rights in a way which keeps pace with rather than
leaps ahead of the Strasbourg jurisprudence”; Lord Judge commented on necessity of
amending HRA 1998 s2 to express that obligation to take account of Strasbourg decisions
didn’t mean that UKSC was required to apply them and that UKSC is at least of equal
standing with Strasbourg Court – was referring to parliamentary sovereignty and how
British courts are required under constitution to apply Act of Parliament even if it tells court
to follow judicial authority from foreign court
o HRA 1998 s2 is itself reflection of international obligation; if courts don’t give effect to this
obligation Strasbourg will sort it out

Significance of HRA 1998 s3: ‘Reading down’ requirement, sets out the relationship between
Convention rights and UK legislation (this applies to primary AND subordinate legislation). What is
the relevant case law?
 pre-HRA 1998: if UK statute was clear in its terms [not ambiguous] and clearly contradicted
Convention rights, court would give effect to UK statute
 HRA 1998 [which gave courts stronger duty in relation to Convention rights] s3 set out reading
down requirement: “So far as it is possible to do so, primary legislation and subordinate
legislation must be read and given effect in a way which is compatible with the Convention rights”
 R v A [2001]: Lord Steyn stated that even if statute conflicts with Convention rights and there is
no ambiguity in language and Parliament’s intention is clear, courts will continue to strive to find
possible interpretation compatible with Convention rights
o Parliament had legislated to prohibit admission of evidence about claimer’s sexual history
in sexual assault cases (Youth Justice and Criminal Evidence Act s41); court said we
need to qualify this in context of ECHR Art.6 right to fair trial as this blanket ban on
admissibility could result in unfair trial; thus, instead of declaring incompatibility court read
into provision qualification that would allow admissibility of evidence if needed for fair trial
to make it compatible with ECHR Art.6; in circumstances where sexual history evidence
wasn’t relevant trial judges have discretion to draw line
 Re S (Care Order: Implementation of Care Plan) [2002]: 1998 Act s3(1) is not available where
suggested interpretation is contrary to express statutory words/is by implication necessarily
contradicted by statute; judge’s task is to interpret, not to legislate
o Local authorities appealed against Court of Appeal’s introduction of starring system which
gave trial judge power to identify milestones in care plan requiring local authority to take
action if not achieved within reasonable time on basis that Children Act 1989 was being
interpreted in way contrary to Convention; it was held that cardinal principle of 1989 Act
was that courts weren’t empowered to intervene in discharge of local authority’s parental
responsibilities under final care order; given that 1989 Act contained no provision which
could be interpreted so as to confer supervisory function proposed in court, Court of
Appeal’s starring system clearly passed beyond boundaries of interpretation and went far
beyond concept of judicial remedy provided by s7-8 of 1998 Act; therefore 1998 Act s3(1)
was not available
 Ghaidan v. Godin-Mendoza [2004]: Rent Act 1977 allowed surviving spouse of protected tenant
of dwelling house to succeed to statutory tenancy on tenant’s death if living there. The petitioner
in this case complained that this breached his Article 8 ECHR rights since he was prevented
from succeeding to the statutory tenancy of his late partner, with whom he had lived in a stable
homosexual relationship for almost 20 years.
o HoL relied on HRA s3 to read down provisions so as to allow person living with original
tenant as “his or her wife or husband” to be treated as spouse for these purposes; Lord
Nicholls emphasised broad approach rather than linguistic approach – looked at statute
in terms of general purpose as Parliament couldn’t possibly have intended that
interpretation of HRA 1998 s3 be dependent on particular words in another statute. Lord
Nicholls also stated that s3 "may require a court to depart from the unambiguous meaning
the legislation would otherwise bear" so there no longer needs to be ambiguity for s3
interpretation as was case pre-HRA 1998; Lord Rodger stated that if interpretive obligation
is exercised in manner which doesn’t contradict principle and scope of legislation, then
court is not crossing border from interpretation to amendment
 Application of s3 interpretation doesn’t mean that courts are going against parliamentary
sovereignty – they’re following HRA 1998 s3 which Parliament passed itself
 If s3 interpretation is not possible, court must proceed with HRA 1998 s4

Significance of HRA 1998 s4: Which Courts can make declarations of incompatibility?
 “(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make
a declaration of that incompatibility”.
 “(6) A declaration under this section: (a) does not affect the validity, continuing operation or
enforcement of the provision in respect of which it is given;”
 Who can make a declaration of Incompatibility?
o Supreme Court
o Judicial Committee of Privy Council
o In Scotland, High Court of Justiciary sitting otherwise than as trial court or Court of Session
o In England and Wales or Northern Ireland, High Court or Court of Appeal
 Ghaidan v. Godin-Mendoza [2004]: Lord Steyn argued that “interpretation under section 3(1) is
the prime remedial remedy and that resort to section 4 must always be an exceptional course”
because “there is a strong rebuttable presumption in favour of an interpretation consistent with
Convention rights”
 Smith v. Scott 2007: Appellant argued that law which doesn’t allow prisoners to vote violated
Article 3 of Protocol 1 ECHR; CoS couldn’t rely on HRA s3 as it would depart too significantly
 from fundamental feature of legislation – there were too many possible places for line to be drawn
in relation to disenfranchisement of convicted prisoners; this was not interpretative exercise;
judges were not authorised to step into shoes of legislator; thus, legislation was found to be
incompatible with Convention under HRA 1998 s4 which gave legislation back to Parliament for
it to provide solution

Significance of HRA s6: Core and Hybrid authorities / Aston Cantlow case; what is meant by the
‘horizontal’ application of Convention rights?
 HRA 1998 s6: It is unlawful for a public authority to act in a way which is incompatible with a
Convention right. This includes Courts and Tribunals.
o Aston Cantlow and Wilmcote v. Wallbank [2004] established that there are 2 types of
public authorities
 core public authority: body whose nature is broadly governmental; must act
compatibly with Convention rights in everything it does
 hybrid public authority: body “exercising both public functions and non-public
functions; not public authority in respect of act of private nature
 ‘Horizontal’ application of Convention rights [between private parties]
o Whenever relationship between private parties is governed by statute, court must apply
statute in such way as to secure compliance with relevant Convention rights
o Venables v. News Group Newspapers [2001]: Whenever relationship between private
parties is governed by common law, for Wade courts and tribunals are considered public
authorities under HRA 1998 s6 so they should decide all cases concerning this
relationship
o Campbell v MGN Ltd (2004): Model brought action arguing that court had duty to protect
her right to privacy after being photographed leaving rehabilitation centre; Lady Baroness
Hale held that HRA 1998 doesn’t create any new cause of action between private persons;
if there is relevant cause of action applicable, court as public authority must act compatibly
with both parties’ Convention rights

Significance of HRA 1998 s16: Time limits for designated derogations.

 In case of emergency state can derogate [deviate] from Convention rights
 Designated derogation can only have effect for 5 years from date on which order designating it
was made

Significance of HRA 1998 s19: Statement of compatibility only for primary legislation before
Westminster Parliament.
 HRA 1998 s19: A Minister of the Crown in charge of a Bill in either House of Parliament must,
before Second Reading of the Bill
o give statement of compatibility – that he believes provisions of Bill are compatible with
Convention rights; or
o state that even though Bill’s provisions are incompatible with Convention rights (so
statement of compatibility can’t be given) government nevertheless wishes House to
proceed with Bill

How are Convention rights protected in Scotland?

 HRA 1998 – applies in Scotland as it applies in UK
o Scottish public authorities are public authorities for purposes of HRA s6 and thus must
act in accordance with Convention rights
 o Same powers of declaration of incompatibility for acts of Westminster Parliament by Court
of Session and High Court of Justiciary
o However, additional dimension of devolution in Scotland complicates things
 Human rights are not a reserved matter – can’t be repealed/removed in relation to
Scotland under Scotland Act but not specifically reserved under Scotland Act Sch
5 so human rights generally are devolved matter; therefore, Scotland is able to
further build on human rights protection offered in HRA 1998
 Adult Support and Protection (Scotland) Act 2007 requires local authorities
and other public bodies to protect and benefit adults deemed at risk of harm
 Children and Young People (Scotland) Act 2014 articulates rights and
entitlements in relation to children and young people and imposes duties on
public bodies and ministers to promote their interests
 Scottish Commission for Human Rights Act 2006: set up Scottish
Commission for Human Rights [independent public body] which aims to
promote and protect human rights for everyone in Scotland
 However, by virtue of SA 1998 s29(2)(c) and paragraph 1(2)(f) of Schedule 4, SP
can’t repeal/modify HRA 1998
 SA 1998
o ss29(1) and (2)(d): Act of SP isn’t law if outside legislative competence of SP or
incompatible with ECHR rights – ECHR acts as limit on competences of Scottish
Parliament and Government
o As these stronger mechanisms are available to ensure SP compiles with ECHR. SP can’t
benefit from declaration of incompatibility
 Pre-Assent Scrutiny: SA 1998 s 31 (1) (2), s33 refer a Bill to UKSC.
 s31(1) imposes duty on person in charge of bill [usually minister or MSP]
when they introduce Bill in Parliament to state that in their view Bill is within
Parliament’s legislative competence
 s31(2) requires presiding officer to decide whether or not provisions in Bill
are within legislative competence when Bill is introduced
 s33 enables Advocate General, Attorney General or Lord Advocate to refer
question of whether Bill is within Parliament’s legislative competence to
Supreme Court for decision at any point within first 4 weeks Bill is passed
 s57(2) imposes duty on Scottish Ministers not to make subordinate
legislation/perform any act incompatible with ECHR rights
 Post-Assent Challenge: s98 gives effect to Schedule 6 which creates procedure
to raise devolution issues in court in any legal proceeding
 In order to mitigate any potential negative repercussions of s98
o SA 1998 s101: Provisions which could be read as outside
competence should be read as narrowly as is required for them
to be within competence if such a reading is possible.
 Seeks to protect SP’s position as democratic legislature so
that its laws are not constantly being challenged and struck
down on frivolous bases
o SA 1998 s102: Where any court decides that ASP is not within
legislative competence of Parliament, court may:
 a) Make order removing/limiting any retrospective effect
of the decision
  because striking it down then and there may have
unintended consequences
 b) Make order suspending effect of decision for any period
and on any conditions to allow defect to be corrected

Unsuccessful Convention rights challenges to ASPs

 Whaley v Watson, 2000 SC 125:
o Early statute passed by SP was challenged for violating ECHR shortly after devolution
and creation of SP; Lord Rodger, Lord President, stated: “If [SP] does not [work within the
scope of its powers derived from statute]…the court may be asked to intervene and will
require to do so, in a manner permitted by the legislation. In principle, therefore, the
Parliament like any other body set up by law is subject to the law and to the courts which
exist to uphold that law.”
o Therefore, courts can strike down ASPs if they’re outwith SP’s legislative competence
o In response to criticism that it is inconsistent for Parliament to be subject to law on basis
that Westminster is respected as sovereign by courts, Lord Rodger said that SP is
analogous to all Parliaments in commonwealth which are in fact subject to law; it is
Westminster that is unusual
 AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46
o 2009 Act which entitled people to sue insurance companies for damages due to personal
injury was challenged by insurance companies for violating ECHR
o Lord Hope stated that legislatures like SP had advantages that flow from depth and width
of experience of their elected members and mandate given to them by electorate,
suggesting that judges should only intervene in most exceptional circumstances
o Thus, while SP is subject to jurisdiction of courts individuals can’t bring action against
ASP using common law grounds of judicial review; they can only do so under SA 1998
s29 which imposes quite high standard to reach
o Upheld power of SP to pass legislation to allow people to sue insurance companies for
damages due to personal injury
o BUT: It would be open to courts to strike down ASP if it was contrary to fundamental
rights/rule of law
 In both cases impugned provisions in ASPs were found to be compatible with Convention rights

Successful Convention rights challenges to ASPs

 Cameron v Procurator Fiscal [2012] HCJAC 19: ASP provision imposing additional bail
conditions was found to be outwith competence for breaching ECHR Art.5 right to liberty and
security
 Salvesen v Riddell [2012] CSIH 26 and [2013] UKSC 22: ASP provision (Agricultural Holdings
(Scotland) Act 2003 s72 in relation to power of land lords concerning former partners within
landlords’ association) was found to be outwith competence for breaching ECHR Art.1 Protocol
1 that protects right to property; court used SA 1998 s102 to suspend effect of its decision for 12
months to allow SP to remedy breach
 The Christian Institute & Ors v The Lord Advocate (Scotland) [2016] UKSC 51: UKSC
unanimously struck down Scottish Parliament’s Named Persons scheme which proposed to give
every child/young person named person to look after their interest (Part 4 of Children and Young
People (Scotland) Act 2014) as insufficiently precise for purposes of ECHR Art.8 right to private
and family life
What does Article 5 ECHR protect?
 ECHR Art.5 protects right to liberty and security – protects us from arbitrary detention by police
– aims to ensure that no one is dispossessed of their liberty in arbitrary fashion
 No one shall be deprived of his liberty save in following cases and in accordance with procedure
prescribed by law:
o lawful detention of person after conviction by competent court,
o lawful arrest or detention of person effected for purpose of bringing him before competent
legal authority on reasonable suspicion of having committed offence
o Article 5(2): Everyone who is arrested shall be informed promptly, in language which he
understands, of reasons for his arrest and of any charge against him
o Article 5(3): Everyone arrested or detained in accordance with provisions of paragraph 1 (c) of
this Article shall be brought promptly before judge or other officer authorised by law to exercise
judicial power
o What counts for a ‘deprivation of liberty and security’?
 Guzzardi v. Italy (1980): determining question of whether someone has been deprived of
his liberty involves assessing “his concrete situation and… a whole range of criteria such
as the type, duration, effects and manner of implementation of the measure in question”
 In Italy, applicant was arrested on suspicion that he was involved with mafia; Italian
law allowed individuals to be held in prison for up to 2-year period waiting for trial
to be held after which they had to be set free; after 2-year period had passed police
still didn’t have enough evidence to take him to trial but instead of releasing him
made him compulsory resident on remote island near Sicily; applicant challenged
this treatment before Strasbourg Court on basis of Art.5; Court clarified principle of
how one must define deprivation of liberty in response to Italy’s argument that he
wasn’t being detained as he wasn’t in prison
 R (Gillan) v. Commission or Police of the Metropolis [2006] UKHL 12:
 “I would accept that when a person is stopped and searched, the procedure has
the features on which the appellants rely. On the other hand, the procedure will
ordinarily be relatively brief. The person stopped will not be arrested, handcuffed,
confined or removed to any different place. I do not think, in the absence of special
circumstances, such a person should be regarded as being detained in the sense
of confined or kept in custody, but more properly of being detained in the sense of
kept from proceeding or kept waiting. There is no deprivation of liberty” per Lord
Bingham [25].
 Petitioners were 2 individuals – Gillan, pHd student on his way to protest against
arms fair, and journalist going to arms fair to cover protest; both were stopped by
police on way to protest and searched; Gillan was carrying rucksack with printouts
of location of protest which they confiscated; though journalist showed her press
credentials police ignored it; she tried to take photos of them being
stopped/searched and was stopped from doing so; stop and search was carried
out by police under Terrorism Act 2000 s44 (terrorism laws) which gave police
power to stop and search individuals without reasonable suspicion;
 Petitioners challenged decision of police officers to stop and search them for
violating ECHR Art.5
 At domestic level HoL didn’t accept their challenge – said stop and search
only lasted less than 30min; they weren’t handcuffed or taken anywhere; it
didn’t amount to deprivation of liberty
  Applicants took their case to European Court of Human Rights so case became
Gillan Quinton v UK
o “although the length of time during which each applicant was stopped
and search did not in either case exceed 30 minutes, during this
period the applicants were entirely deprived of any freedom of
movement. They were obliged to remain where they were and submit
to the search and if they had refused they would have been liable to
arrest, detention at a police station and criminal charges. This
element of coercion is indicative of a deprivation of liberty within the
meaning of Article 5 § 1” at [57]
o Ultimately, ECtHR found UK in violation of ECHR Art.8

What do reasonable grounds mean in relation to police powers?

 Fox, Campbell and Hartley v. United Kingdom (1990): established 2-part test for grounds to be
considered reasonable complaint with Art.5
o If suspicion is honestly held by arresting officer themselves (subjective test), it is for
accused to prove that suspicion was unreasonable
o This suspicion must be based on objectively reasonable grounds (objective test) – fair-
minded observer must reach conclusion that individual has done something worthy of
arrest/stop and search though what made be regarded as “reasonable” will depend upon
all circumstances
o Terrorism concerns can’t lead to suspension of ‘reasonableness’ requirement
o Applicants were former IRA members; had been convicted for past IRA-related crimes,
served sentence and set free; every time police were concerned abt IRA activity they
would arrest applicants on basis of reasonable suspicion as a result of past IRA-related
crimes; Strasbourg Court said they’d failed to meet requirements of objective observer
 O’Hara v UK (2002) established that “grounds for arrest can arise from information received from
another, even if it subsequently proves to be false, provided that a reasonable man, having
regard to all the circumstances, would regard them as reasonable grounds for suspicion”
o Applicant was prominent member of Sinn Fein and arrested based on info received from
third parties that he committed offence; he challenged this saying this info shouldn’t be
considered sufficient to generate reasonable suspicion for police to arrest him; Strasbourg
Court disagreed

What is the significance of Cadder v HM Advocate [2010]?

 Art.6 provides right to fair trial including 4 basic rights to detainee
o (i) right not to be held incommunicado – when ur arrested u can’t be held by police without
possibility to communicate fact that u’ve been arrested to someone – police can’t just
arrest u in street and make u disappear; u have right to inform someone of fact that u’ve
been arrested
o (ii) right of access to a solicitor (right to have solicitor present during ur interrogation +
right to discuss ur situ w solicitor before u r interrogated) + right of intimation to solicitor
(right to inform solicitor abt ur detainment
o (iii) right to silence and right to non-incrimination – right not to be forced to incriminate
urself
o (iv) Trial within a reasonable time – right to be brought to trial within reasonable time
 Salduz v Turkey (2009): ECHR Art.6 requires that access to a lawyer should be provided as from
the first interrogation of a suspect by the police unless it is demonstrated that there are
compelling reasons to restrict this right
 o Minor arrested on charges of participating in unlawful protest was interrogated at police
station without access to solicitor; Strasbourg Court found this was violation of his rights
under ECHR Art.6
o instrumental in solving issue in case in Scotland - cadder
 Cadder v HM Advocate [2010] UKSC 43
o Young man was detained on suspicion of having attacked father and his son; Criminal
Procedures (Scotland) Act 1995 s14 only gave detainees right to have fact of their
detention intimated to solicitor but not right to consult solicitor; consequently, he was
interrogated without access to solicitor which he challenged; High Court declined to follow
judgment in Salduz because they said it applied specifically to situation in Turkey and not
in Scotland which follows very different interrogation procedure; UKSC found that it was
clear breach of Art.6 for prosecution to rely on evidence obtained during interview where
suspect hadn’t been afforded opportunity to consult solicitor and said High Court should
have followed Salduz, reiterating obligation of courts to take into consideration case law
of Strasbourg Court and only to depart from this when there were convincing reasons
which weren’t present in this case

What is the significance of the Police and Fire Reform (Scotland) Act 2012?
 Police and Fire Reform (Scotland) Act 2012: Abolished local police forces and replaced them
with a single police service, ‘Police Scotland’, headed by a chief constable.
 ‘Scottish Police Authority’: The authority is appointed by Scottish Ministers. Has oversight role
over Police Scotland. Its responsibilities include appointing chief constable.

What did Peggie v Clark (1868) require from the police in relation to arrests without a warrant?
 For arrest to be carried out without a warrant
o Circumstances must be exceptional,
o Police officers must believe there are reasonable grounds to suspect offence has been
committed
o Prompt arrest must be justified by seriousness of crime

What does the Criminal Justice (Scotland) Act provide for under s1, 3, 38, 43, 44?
 Purpose of Criminal Justice (Scotland) Act 2016 was to bring Scottish law in line with Convention
requirements after Cadder
 s1
o (1) Constable may arrest person without warrant if he has reasonable grounds to
suspect that person has committed/is committing offence
o (2) In relation to offence not punishable by imprisonment, constable may arrest person
under subsection (1) only if constable is satisfied that it wouldn’t be in interests of
justice to delay arrest in order to seek warrant for person’s arrest
 s3
o When constable arrests person (or as soon afterwards as is reasonably practicable),
constable must inform person—
 (a) that person is under arrest,
 (b) of general nature of offence in respect of which person is arrested,
 (c) of reason for arrest,
 (d) that person is under no obligation to say anything, (e) of person’s right to have—
 (i) intimation sent to solicitor under s43, and
 (ii) access to solicitor under s44

 s38
 o Person in police custody has right to have intimation sent to another person of
 (a) fact that person is in custody,
 (b) place where person is in custody
 s43: Right to inform solicitor of fact and place that individual is being detained as soon as this is
practicable
 s44: Person in police custody has right to have private consultation with solicitor at any time; this
can be delayed under specific circumstances

What is the significance of Codona v. HMA (1996)?

o Codona v. HMA (1996) SLT 1100.
 Suspect statements must be spontaneous and voluntary
 Cross-examination or interrogation is problematic
 Leading or repetitive questioning is likely to lead to exclusion of evidence
 Young girl was arrested on suspicion of murder and interrogated for 3 hours, during which
police kept insisting they knew she did it, confess, etc.; ultimately she broke down and
confessed; interrogation was found to be in violation of Art. 6 which meant that confession
couldn’t be used as evidence

What are the permissible grounds for continued detention under the ECHR?
 Justification for any period of detention, no matter how short, must be convincingly demonstrated
by authorities
 ECHR does recognise grounds for continued detention:
o Danger of absconding – danger where detainee is flight risk and may escape trial
o Obstruction of proceedings – if there’s risk of obstruction of proceedings, e.g. authorities
have reason to believe that detainee may try to tamper w evidence/intimidate witnesses,
etc.
o Repetition of offences – if they think detainee might commit offence again when set free
o Preservation of public order – if authorities think preservation of public order requires
detainee to be kept in jail

What obligations does Article 2 ECHR generate for states?

 ECHR Art.2: right to life
o “Everyone’s right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction of a
crime for which this penalty is provided by law.”
 Protocol 6 ECHR abolished death penalty in peacetime
 Article 1 of Protocol 13 ECHR has now made the death penalty unlawful under
the ECHR.
o 2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when
it results from the use of force which is no more than absolutely necessary:
 (a) in defence of any person from unlawful violence;
 (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully
detained;
 (c) in action lawfully taken for the purpose of quelling a riot or insurrection
 ECHR Art.2 generates
o substantive obligation for states – obligation not to take life save for reasons explicitly
enumerated in Article 2 ECHR
o positive obligation to protect life – obligation to take steps to prevent loss of life
 o procedural obligation – duty to carry out effective investigation into circumstances
surrounding death of individual, especially if death was caused by state agents/state had
duty of care
 ECHR Art. 2 doesn’t include
o ‘right to die’
o enlisting aid of another in bringing about one’s death
o conferral of right to life to foetus
 Pretty v UK (2002)
o Woman dying of motor neurone disease wanted to commit suicide but required her
husband to assist her in process; she asked director of prosecution for insurance that her
husband wouldn’t be prosecuted if he helped her do so; Strasbourg Court said English
law not allowing assisted suicide was not violation of ECHR Art.2; court found that right
to life could not, without distortion of language, be interpreted as conferring diametrically
opposite right, namely a right to die whether at hands of third person/with assistance of
public authority; right to life guaranteed under ECHR Art.2 couldn’t be interpreted as
having negative aspect – so court found that there was no right to die as covered by
ECHR Art.2

What is the significance of McCann and others v United Kingdom (1995)?

 SAS soldiers’ authorised killing of suspected IRA terrorist in Gibraltar after tailing 3 suspects (1
explosives expert and 2 individuals convicted previously of offences relating to explosives and
other terrorist activity) and finding aerial suspected to be remote-controlled bomb on car suspects
had been examining was challenged by family members as breach of ECHR Art.2
o States will be liable for deaths caused by police officers and state officials unless they can
demonstrate that deprivation of life was ‘absolutely necessary’ in circumstances under
ECHR Art.2(2); family members claimed that UK hadn’t shown beyond reasonable doubt
that planning and execution of operation was absolutely necessary
o Strasbourg Court said “absolutely necessary” test in Art.2 is stricter test than tests
supplied in other articles of Convention; thus, state actions challenged for violating Art.2
would be subject to closer scrutiny than for other articles; Court pointed out that UK
authorities had to do balancing act between their duty to protect lives of people of Gibraltar
(UK territory) including their own military personnel and minimum resort to lethal force
against those suspected to pose threat to life
o Distinction was drawn between soldiers themselves and wider planning operation as a
whole
o As soldiers were taking orders from superior officers and had honestly believed that it was
necessary to shoot suspect in order to prevent them from detonating bomb and resulting
in loss of life, their use of force in pursuit of Art.2(2) was justified even though their honest
belief turned out to be mistaken; to hold otherwise would impose unrealistic burden on
state and its law enforcement personnel in execution of duty perhaps to detriment of their
lives and others’
o However, when it came to operation as whole, not enough was done to minimize to
greatest extent possible recourse to use of lethal force which violated UK’s obligations
under Art.2
 UK authorities didn’t stop suspects from entering Gibraltar in first place;
communication to soldiers that there was definitely bomb was made by soldier, not
expert in explosives; not enough allowances were made for possibility that their
hypothesis may be wrong
What does the positive duty on the state to protect life entail? When does this duty arise?
 Positive Duty to Protect Life
o Protection of [witness] identity
o Protection of those in care of state [for instance secure hospital or prison]
o Protection of members of armed forces
o Protection of individuals known to be at risk for loss of life [for instance victims of domestic
violence]
 In which circumstances will state be found in violation of ECHR Art.2 for failing to protect victim?
o Osman v United Kingdom (1997):
 Teacher Mr Paul Paget-Lewis had given 14y/o pupil Ahmet Osman money, taken
photographs of him and followed him home; no further action was taken by police
though they did visit school on several occasions; Mr Paget-Lewis legally changed
his name to Paul Ahmet Yildirim Osman; headmaster of school spoke to police;
eventually Mr Paget-Lewis was examined by psychiatrist working for education
authority who didn’t diagnose him as mentally ill but recommended that he be
removed from school immediately; he was suspended from school pending
investigation by education authority; afterwards this there were number of attacks
on family home which were reported to police; Mr Paget-Lewis was questioned
further by police following incident where he drove his car into another student of
school out of jealousy of relationship between that student and Ahmet; eventually
Mr Paget-Lewis asked to be interviewed by education authority where he told them
he felt self-destructive, blamed deputy headmaster for his removal from his job and
hinted at possibility of carrying out school shooting; police was going to arrest him
on suspicion of criminal damage to Osman family home but he was nowhere to be
found; few months later he was spotted around home again and ultimately shot
student’s father, wounded student and shot and killed members of deputy
headmaster’s family
 Family made claim against UK authorities for violating ECHR Art.2, arguing that
they had failed to take adequate and appropriate action to protect lives of Ahmet
and his father from real and known danger that Mr Paget-Lewis posed; court said
that UK authorities had to do balancing act between positive obligation on
authorities to take preventative operational measures to protect individual whose
life is at risk from criminal acts of another individual right to life and keeping in mind
difficulties involved in policing modern society [e.g. unpredictability of human
conduct, operational choices made by police with regard to priority and resources,
etc.]; therefore, any such obligation to protect life in these circumstances must be
interpreted in such a way that doesn’t impose impossible/disproportionate burden
on authorities
 Therefore, court established test: “The authorities knew or ought to have known
at the time of the existence of a real and immediate risk of life of an identified
individual or individuals […] and they failed to take measures within the scope
of their powers which judged reasonably, might have been expected to avoid
that risk”.
 Under what circumstances can we say that authority “knew or ought to have known” about risk
to right to life?
o Chief Constable of the Hertfordshire Police v Van Colle [2008] UKHL 50:
 Mr Van Colle employed Mr B at his optician’s practice; after working there for few
weeks they had fallout which resulted in physical confrontation; Mr B never came
 back to work for Mr Van Colle; few months later Mr B was arrested by police officer
on suspicion of theft from different optician’s; in his garage they found optician’s
materials, some of which belonged to Mr Van Colle; Mr B was charged with
offences of theft and obtaining property by deception; Mr Van Colle later found that
his car had been set on fire outside his parents’ house under seemingly suspicious
circumstances but fire brigade said fire was caused by electrical fault; local police
determined it wasn’t suspicious; after investigation insurance company said fire
was set maliciously and was vandal attack; Mr Van Colle didn’t pass information
on to police; weeks later Mr Van Colle got phone call worded to effect of “I know
where you live, where your business is, where your parents live; if you don’t drop
charges you’ll be in danger” and though it wasn’t clear phone call was from Mr B
he had good suspicion that it was so he alerted police which was assigned to
investigate that line of inquiry; statements were taken; meanwhile, Mr B was also
involved in speaking to witnesses in relation to other thefts and was found to be
offering them bribes not to testify in his upcoming trial; there was another phone
call in which Mr B phoned Mr Van Colle again urging him to drop charges and this
time there was absolutely no doubt as to who it was; Mr Van Colle wrote account
of that phone call which he faxed to police and left voicemail about; before police
could take statement from Mr B which they were about to do Mr Van Colle was
shot and killed by Mr B outside his office
 Mr Van Colle’s family sued police under Art.2; court recalled Osman test and said
that it wasn’t dependent on what authorities knew but what they ought to have
known so “stupidity, lack of imagination and inertia” don’t afford excuse to national
authority; therefore, court should endeavour to place itself in position of police
officer and “assess events as they unfolded through his eyes”; in doing so, court
should ask if it would have been reasonable on basis of evidence to conclude that
Osman test was met; if police should have been aware that there was real and
immediate risk to Mr Van Colle’s life then they did violate Art.2
 However, Court couldn’t conclude that Osman test was met – police officer wasn’t
taken to have known that there was such a serious risk – so no violation of Art.2
 Under what circumstances can we say that authority “failed to take measures within the scope
of their powers which judged reasonably, might have been expected to avoid that risk”?
o LCB v UK (1998): Applicant was diagnosed with leukaemia 10-12 years after her father,
member of UK armed forces, was present during UK nuclear tests on Christmas island;
she argued that UK should’ve advised her parents about possible health risks caused by
her father’s exposure to radiation and failed to monitor her health
 Court held that Art.2 does require each state to take appropriate steps to safeguard
lives of those living in their jurisdiction but records showed that radiation didn’t
reach dangerous enough levels to require UK state to warn them of dangers;
therefore, Art.2 hadn’t been breached; taking into account information available to
UK at time, UK had done all it was reasonably expected to do

What makes an investigation into a death effective for the purposes of ECHR Art.2?
o Must
 Be independent
 Be carried out with reasonable expedition (reasonably quickly)
 Involve proper assessment whether use of force was justified
 Identify and – if appropriate – punish those responsible
  Involve public scrutiny
 Involve next of kin
o Armani Da Silva v. the United Kingdom (2016)
 Applicant was relative of Mr Jean Charles de Menezes who was mistakenly identified as
terrorist suspect following heightened security measures and police presence as a result
of 2005 London bombings in transport network and shot dead on 22 July 2005 by 2 special
firearms officers in London
 Question was afterwards, having established that they got the wrong person, did UK carry
out effective investigation of everything that led up to death?
 Court found that investigation into death was effective even though perpetrators weren’t
punished
 “The Metropolitan Police Service (MPS) had publicly accepted that he had been
killed in error by special firearms officers. A representative of the MPS had flown
to Brazil to apologise to his family face to face and to make an ex gratia
payment to cover their financial needs. They were further advised to seek
independent legal advice and assured that any legal costs would be met by the
MPS. The individual responsibility of the police officers involved and the
institutional responsibility of the police authority were considered in depth by the
IPCC, the CPS, the criminal court, and the coroner and jury during the inquest.
Later, when the family brought a civil claim for damages, the MPS agreed to a
settlement with an undisclosed sum being paid in compensation. The
decision to prosecute the police authority did not have the consequence, either in
law or in practice, of excluding the prosecution of individual police officers as well.
Neither was the decision not to prosecute any individual officer due to any failings
in the investigation or the State’s tolerance of or collusion in unlawful acts; rather,
it was due to the fact that, following a thorough investigation, a prosecutor had
considered all the facts of the case and concluded that there was insufficient
evidence against any individual officer to meet the threshold evidential test”.

How does Article 2 ECHR apply in medical context?

 NHS Trust A v M [2001] Fam 348
o Applicant challenged hospital’s request for permission to withdraw artificial hydration and
nutrition from person diagnosed as being in permanent, vegetative state for violating
ECHR Art.2
o Court held that Article 2 imposed positive obligation to give treatment where that is in best
interests of patient but not where it would be futile; discontinuing treatment would not be
intentional deprivation of life under Article 2 when withdrawing treatment was in line with
respected body of medical opinion
 Charles Gard and Others against the United Kingdom (2017)
o Parents wanted their terminally ill son to receive experimental medical treatment not
normally available on NHS which had never been tested on humans/animals and success
of which was purely hypothetical; they were challenging UK authorities’ prohibition on their
son obtaining this treatment
o Court held that prohibition didn’t constitute violation of right to life because ECHR Art. 2
“cannot be interpreted as requiring access to unauthorised medicinal products for the
terminally ill to be regulated in a particular way”
How does Article 2 ECHR apply to military operations abroad?
 Al-Skeini and others v United Kingdom (2011): Applicants were relatives of Iraqi civilians killed
in southern Iraq by British Armed Forces during occupation of southern Iraq; 5 were shot by
soldiers on patrol while 1 was killed in detention facility
o ECHR Art.2 requires signatories to Convention to secure Convention rights to all
individuals within their jurisdiction
o Court said: “Jurisdiction is presumed to be exercised normally throughout the State's
territory. Conversely, acts of the Contracting States performed, or producing effects,
outside their territories can constitute an exercise of jurisdiction within the meaning of
Article 1 only in exceptional cases” of which there are 3
 Where state agent is acting with authority and control (e.g. diplomatic staff working
overseas)
 When there exists ‘Effective Control’ [by lawful/unlawful military action] over area
– where contracting party to Convention exercises some or all of public powers
ordinarily exercised by government of that area
 Court held that UK through its soldiers engaged in security operations in
southern Iraq during period in question assumed exercise of some of public
powers normally exercised by sovereign government and thus control over
individuals killed in such security operations
 Where contracting party to Convention detains foreign national overseas and holds
them in a facility controlled by them
 Court held that civilian killed in detention facility was within UK’s jurisdiction
for purposes of Art.1
 Smith and others v Ministry of Defence [2013] UKSC 41
o British soldiers were killed in Iraq, some by explosive device by driving land rover, others
by friendly fire; family members argued that Ministry of Defence failed to take all
appropriate measures to prevent deaths of their soldiers constituting breach of Art.2;
Court held that Convention did apply
o Lord Hope: “Servicemen and women relinquish almost total control over their lives to the
state. It does not seem possible to separate them, in their capacity as state agents, from
those whom they affect when they are exercising authority and control on the state’s
behalf”
 Tagayeva and Others v. Russia (2017)
o Russian military operation in response to terrorist attack on school didn’t involve much
planning and resulted in large part of building collapsing from use of explosives and many
deaths; questions were raised about whether Russia did everything they could to protect
right to life
o Russia was found in violation of ECHR Art.2 for:
 Failing to take preventative steps to avert/minimise terrorist attack
 Carrying out ineffective investigation
 Being deficient in planning of rescue operation
 Not establishing clear framework for when lethal force could be used

What are the various arguments behind the protection of freedom of expression?
 R v Home Secretary ex parte Simms [2000] 2 AC 115 per Lord Steyn: “First, [freedom of
expression] promotes the self-fulfilment of individuals in society. Secondly, in the famous
words of Holmes J. (echoing John Stuart Mill), ‘the best test of truth is the power of the
thought to get itself accepted in the competition of the market. […] Thirdly, freedom of
 speech is the lifeblood of democracy. The free flow of information and ideas informs political
debate. It is a safety valve: people are more ready to accept decisions that go against them if
they can in principle seek to influence them. It acts as a brake on the abuse of power by public
officials. It facilitates the exposure of errors in the governance and administration of justice of the
country.”
o Argument from truth/Marketplace of ideas: Open and free discussion leads to
discovery of truth. If restrictions on speech are tolerated, society prevents ascertainment
and publication of accurate facts and valuable opinion.
o Free speech as an aspect of self-fulfilment: Restrictions on what we are allowed to say
inhibit our personality and its growth. Right to express beliefs and political attitudes
instantiates or reflects what it is to be human.
o Argument from citizen participation in democracy: Greatest menace to freedom is
inert people; that public discussion is political duty; and that this should be fundamental
principle of government.
o Suspicion of government: Governments will always attempt to restrict speech that is
unfavourable to them. Free speech is best obstacle to stop them from doing this.

What are the legitimate reasons that allow the restriction of Article 10 ECHR?
 ECHR Art.10(2): “The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of national
security, territorial integrity or public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or for maintaining the
authority and impartiality of the judiciary.”

What is the three-part test that applies to all qualified Convention rights [ECHR Art.8-11]?
 Has there been restriction on exercise of right? If so, was it prescribed by law?
 If so, does restriction serve legitimate aim [listed in ECHR e.g. national security, rights of others]?
 If aim of restriction was legitimate, is restriction necessary in democratic society (=proportionality
test)?

What is the significance of Lingens v Austria?

 Lingens v Austria (1986): Special Protection under Art.10 for press. Not only does press have
task of imparting such information and ideas, public also has right to receive them. Limits of
acceptable criticism are accordingly wider as regards politician as such than as regards private
individual. Unlike latter, former inevitably and knowingly lays himself open to close scrutiny
of his every word and deed by both journalists and public at large, and he must consequently
display greater degree of tolerance.
o Mr Lingens was editor of magazine in Austria and published articles accusing chancellor
of protecting former members of Nazi SS involved in Austrian politics; chancellor brought
private prosecution against Mr L under Austrian law on basis that his articles were
defamatory; Mr L was found guilty of defamation and fined for use of certain language in
some of his articles;
o Mr L challenged his conviction in Strasbourg Court for infringing his ECHR Art.10 right;
Austrian gov said it was necessary to protect chancellor of Austria
o ECtHR gave special protection to newspapers and publishing houses and took view that
criticism of politician must be wider than as regards private individual; freedom of
 expression constituted foundation of democratic society; while press mustn’t overstep, it
is incumbent on it to impart info on political issues just as on other areas of public interest
o Prosecution in sentencing journalist was likely to deter journalists from contributing to
public debate, hamper press in its role of distributing ideas to electorate; therefore, on
balance Austrian system of penalising journalist in question wasn’t deemed necessary in
democratic society

What is the significance of AG v Guardian Newspapers (No. 2) [1990]?

 Restrictions to freedom of expression on national security grounds
 Pre-HRA
o AG v Jonathan Cape [1976] QB 752: Attorney-General sought restraint on publication of
certain materials in diary of Richard Crossman, former cabinet minister, submitting that
protection from disclosure of Cabinet papers was based on collective responsibility; court
refused injunction
 When seeking injunction to convince court that this info shouldn’t be in public
domain, it must be shown
 that such publication would be breach of confidence;
 that public interest requires that publication be restrained, and
 that there are no other facts of public interest contradictory of and more
compelling than that relied upon
 Court, when asked to restrain such a publication, must closely examine extent to
which relief is necessary to ensure that restrictions are not imposed beyond strict
requirement of public need’ Per Lord Widgery LCJ
 it was held that publication should proceed because it was being published 10
years after discussion and was unlikely to inhibit free discussion in cabinet today
o AG v Guardian Newspapers (No. 2) [1990] 1 AC 109
 Retired UK secret service employee sought to publish his memoirs which
contained allegations of serious misconduct including plot in secret service to
instigate rumours to undermine British government of the day; British government
failed to restrain publication in Australian court; defendants [Guardian newspaper]
sought to report those proceedings which would involve publication of the
allegations made to UK readership; Attorney-General on behalf of British
government sought to restrain those publications because it was felt that by
reporting on trial they would inevitably reveal what was in book which should not
be revealed for reasons of national security
 Meanwhile book was being published in US and some copies were being smuggled
into UK and traded illicitly
 Courts established there was duty of confidence in English law – which under
certain circumstances would preclude individuals from divulging sensitive
information; this arises when information comes to knowledge of person in
circumstances where he has agreed that it is confidential with effect that it would
be just in all circumstances that he should be precluded from divulging it
 “The principle of confidentiality only applies to information to the extent that it is
confidential. In particular, once it has entered what is usually called the public
domain then, as a general rule, the principle of confidentiality can have no
application to it”. Per Lord Goff
 Post-HRA 1998
o s12 of HRA 1998
  (1) This section applies if a court is considering whether to grant any relief which,
if granted, might affect the exercise of the Convention right to freedom of
expression.
 (3) No such relief is to be granted so as to restrain publication before trial unless
the court is satisfied that the applicant is likely to establish that publication should
not be allowed.
 (4) The court must have particular regard to the importance of the Convention right
to freedom of expression and, where the proceedings relate to material which
the respondent claims, or which appears to the court, to be journalistic, literary or
artistic material (or to conduct connected with such material), to—
 (a) the extent to which—
 (i) the material has, or is about to, become available to the public; or
 (ii) it is, or would be, in the public interest for the material to be published;

How does Official Secrets Act 1989 stop unauthorised disclosure of information? To whom does it
apply and how?
 Act was legislated largely as response to AG v Guardian Newspapers (No. 2) – government
didn’t like that secrets could be on balance made available to public; so Official Secrets Act 1989
was legislated to regulate when info can be released, what types can be released, etc.
 s1-4 create series of criminal offences in respect to disclosing certain types of info
o Official Secrets Act 1989 s1 prohibits disclosure of information related to security and
intelligence
 Current and Former members of security and intelligence community: Can’t
disclose any information relating to services
 No public interest defence is available
 But intelligence officer can argue that they had no reason to believe that
material they disclosed related to security and intelligence
 Current and Former Crown servants [civil servant/government minister/member of
police]: Can’t disclose damaging information
 Defence is available – person must prove that at time of alleged offence he
didn’t know, and had no reasonable cause to believe, that information,
document or article in question related to security or intelligence/and was
damaging
o Official Secrets Act 1989 s2 and 3 prohibits disclosure of information related to
Defence/International Relations
 Current and Former Crown servant or government contractor: Can’t disclose
damaging information
 Defence is available – person must prove that at time of alleged offence he
didn’t know, and had no reasonable cause to believe, that information,
document or article in question related to security or intelligence/and was
damaging
o Damaging information: anything that damages capability of armed forces to carry out their
tasks or leads to loss of life/damage to equipment or installations, generally endangers
interests of UK or safety of UK citizens abroad
 Official Secrets Act 1989 s5 prohibits disclosure of information resulting from unauthorised
disclosures or entrusted in confidence
o Any person who discloses information protected by Act is guilty if disclosed within
authority and knowing/having reasonable cause to believe that it is protected
 o Only applies to information disclosed specifically by crown servant or government
contractor without lawful authority, or entrusted to them in confidence by crown servant
o Disclosure must be damaging and made knowing or having reasonable cause to believe
that it would be damaging
 R v Shayler [2002] UKHL 11
o Following breaking agreements to keep matters disclosed to him secret upon being
employed and leaving and being prosecuted, defendant who was member of security
services sought decision that defence that disclosures had been made by him in public or
national interest was available to him on such a prosecution
o Court said it wasn’t possible for public interest defence to be read into OSA 1989 in
relation to current and former members of Security and Intelligence Community under s1
and that OSA 1989 was still compatible with ECHR Art.10 as prohibition wasn’t absolute
– individual could rely on internal mechanisms or seek permission to disclose

What is the significance of the Von Hannover judgments in relation to the relationship between the
right to privacy and free speech?
 Von Hannover v Germany (2005)
o Princess of Monaco sought injunction to protect publication of photographs of her in her
daily life; German court granted injunction restraining publication of photographs in which
she appeared with her children on ground that their need for protection of their intimacy
was greater than that of adults but considered that applicant who was “public figure” had
to tolerate publication of photographs of herself in public place even if they showed her in
scenes from her daily life rather than engaged in her official duties; in view of German
court freedom of press and public’s legitimate interest in knowing how such a person
generally behaved in public outweighed her right to privacy
o Strasbourg Court held that there had been violation of ECHR Art.8 and that
 Privacy can include aspects of individual’s life where they are not acting in official
capacity including being photographed in public
 Privacy and expression must be balanced because they have equal status under
Convention
 Where purpose of expression is of low value, i.e. not contribution to debate of public
interest but is mere gossip then interferences of privacy through expression must
be strictly construed
 Von Hannover v Germany (No.2) (2008)
o Court found that Prince Rainier’s illness and conduct of his family members [going on
holiday] at time qualified as event of contemporary society on which magazines were
entitled to report and to include photograph to support and illustrate information being
conveyed
o Court accepted that photograph, considered in light of article, did at least to some degree
contribute to debate of general interest
o German Court had to apply principles articulated by Strasbourg court in first Hannover
case

How has this been applied at the domestic level in: Re S (A Child) (Identification: Restrictions on
Publication) [2003], Campbell v MGN [2004], Mosley v NGN [2008], Ferdinand v. MGN [2011]?
 Re S (A Child) (Identification: Restrictions on Publication) [2003]:
o Claimant child’s mother was to be tried for murder of his brother; it was feared that
publicity which would normally attend trial would be damaging to S; application was made
for reporting restrictions to be applied to avoid his identity being known
 o Lord Teyn specified that
 Balancing exercise starts with presumptive equality of expression and privacy
 Comparative analysis of importance of specific rights being claimed necessary
must be carried out
 Justifications for interfering with each right must be taken into account
 Proportionality test must be applied to both rights
o Much of information about proceedings was already in public domain so applying
reporting restrictions would only have mitigating effect; it was no longer possible to
completely protect identity of child; thus, on balancing exercise based on that information
judges refused to grant injunction; there was clear and proper interest in knowing identity
of defendant in murder trial
 Campbell v MGN (2004):
o Applicant was model who had proclaimed publicly that she didn’t take drugs; defendant
published story showing picture of her leaving drug addiction clinic along with details of
her addictions and treatment she had received
o What did newspaper reveal?
 Issue (1) The fact that Campbell was drug addict
 Issue (2) The fact that she was receiving treatment
 Issue (3) That treatment was provided by Narcotics Anonymous
 Issue (4) Details of treatment she was receiving
 Issue (5) Information contained in photo
o Naomi Campbell argued that despite public interest in her all these details together was
breach of her privacy and sought damages against newspaper
o Firstly, it was established that there is right to informational privacy in English law which
applies between individuals horizontally, not just vertically, so new tort of misuse of private
information was developed
 Lord Nicholls: “The values in Articles 8 and 10 are as much applicable in disputes
between individuals or between an individual and a non-governmental body such
as a newspaper.”
o Lord Hope: “Rights to privacy and expression have equal status under the Convention,
therefore where both are engaged they must be balanced”
o Issues (1) and (2):
 By repeatedly making assertions in public to media that she didn’t take drugs unlike
many fashion models, Miss Campbell could no longer have reasonable expectation
that this part of her life could remain private
 Where public figure chooses to present false image and make untrue
pronouncements about their life, press will normally be entitled to put record
straight”
 Therefore, there was prima facie infringement of her right to privacy but on balance
freedom of expression would allow publication of issues 1 and 2
o On issue (3) and (4):
 Information that Campbell was receiving treatment specifically at Narcotics
Anonymous was disclosure of unremarkable nature
o Issue (5): Photos which contained private info were taken surreptitiously
 Hale said that there was difference between photos of Campbell when “she pops
out to shops for bottle of milk” and photos of her leaving NA meeting
 Court held that there was violation of her right to privacy which outweighed press’s
right to freedom of expression as taken by press – because she had medical
 condition which she was being treated for; details of her therapy were very similar
to details found in medical notes so it was quite clearly private matter; individual
seeking treatment for addiction might need considerable privacy in which to do this
 Key aspect of proportionality assessment was “nature of speech” – political
speech, artistic expression and speech keeping those in elected office accountable
deserve higher protection than speech in tabloid
 Mosley v NGN (2008): A video of Mosley’s personal moments was published.
o Mr M was president of F1; video in which he was engaging in sado-masochistic sexual
activity which allegedly had Nazi element was published by newspaper
o Eady J at [132]
 “There can be little doubt that intimate photographs or recording of private sexual
activity, however unconventional, would be extremely difficult to justify at all by
Strasbourg standards”
 “There was no public interest in publishing these images. ‘Titillation for its own
sake’ is not a public interest reason”.
 Ferdinand v. Mirror Group Newspapers [2011]
o After leading “wild life”, claimant, famous footballer, said he had “settled down”; he was
appointed as captain of English football team on basis that he was role model; newspaper
published information that he was having affair, alleging that he had ended relationship
out of fear for being exposed like his predecessor and no longer being captain.
o Court held that
 Previous reckless behaviour doesn’t automatically disqualify expectation of privacy
for sexual relations in future
 But public interest (expression interest) in setting record straight of English football
captain about whether he had changed his ways outweighed privacy interest of
keeping photos and text messages private
 PJS v. News Group Newspapers Ltd [2016] UKSC 26:
o Injunction was sought to prevent publication of names of celebrity couple allegedly
involved in infidelity
o Supreme Court granted injunction even though the identity of the couple had been
revealed in many other countries
o UKSC: Focused on the qualitative difference of PJS’s story being all over domestic hard
copy and press internet sites, and the interests of the children of the couple; there was no
public interest in publishing details of this story; this was simply gossip