UK Human Rights Act - Assignment Example

DUANNE STOTT AND FRIEND The facts of the problem that have been given to us for solving involve the use of video surveillance and whether in the facts of the problem infringes privacy of individuals ; i.e celebrity. The issue involved is public safety (surveillance by police to gather evidence to nab criminals) vis-a-vis private rights of an individual and which of them would have predominance over the other. The questions are answered as follows : 1) Privacy, in its most obvious sense, connotes the capacity to keep certain information secret. The state, as a result of the extensive filed of regulation entrusted to it, has a constant need to obtain, monitort and evaluate infornmation. Art. 8 of the ECHR, by insisting on respect for private life appears to have limited the investigative reach of public authorities.1 It should be noted that although Art. 8 names only one place- the home, the Court has interpreted that term broadly noting, inter alia, that the French text uses the word domiile which has a broader connotation.2 In the case of B v. France, the Court took cognizance of the fact that the authorities compelled the applicant to intimate personal information to 3rd. Parties.3 In the instant case also disclosure of the cctv pictures would lead to this. The concurring opinion of Judge Walsh also emphasises the need on part of the authorities to adopt to the invidual choices-“ It is clear that the withholding of permission for this change has proved to be an interference with the privacy of the adopted life style."4 In this case the Court agreed with the Commission’s “…opinion …the applicant, as a result of the frequent necessity of disclosing information concerning her private life to third parties, suffered distress which was too serious to be justified on the ground of respect for the rights of others."5 Therefore there is enough material to sustain the ground that security concerns can be overcome. And in such cases, “…even having regard to the State’s margin of appreciation, the fair balance which has to be struck between the general interest and the interests of the individual … has not been attained, and there has thus been a violation of Article 8".6 Again, “ Admittedly complying with the applicant’s requests could cause considerable administrative inconvenience but that could not be a justification for the respondent’s refusal. "7  In the Burghartz case it was held that “As a means of personal identification and of linking to a family, a person’s name none the less concerns his or her private and family life. "8 Similarly, pictures can also be construed as means of personal identification affecting personal life. It needs to be examined whether Art.8 extends its protection to public places. Almost everyone must carry on life partly in public, and private interests need protection in public places as well as on private property.Article 8 goes some ways towards achieving this.9 For example, although being sent to prison or school necessarily limits one’s autonomy and control over space, the right to respect for correspondence applies in prisons. In the case of Golder v. The United Kingdom10 it was stated, “In order to show why the interference complained of by Golder was "necessary", the Government advanced the prevention of disorder or crime and, up to a certain point, the interests of public safety and the protection of the rights and freedoms of others. Even having regard to the power of appreciation left to the Contracting States, the Court cannot discern how these considerations, as they are understood "in a democratic society", could oblige the Home Secretary to prevent Golder from corresponding with a solicitor …The Court again lays stress on the fact that Golder was seeking to exculpate himself of a charge made against him by that prison officer acting in the course of his duties and relating to an incident in prison. In these circumstances, Golder could justifiably wish to write to a solicitor. It was not for the Home Secretary himself to appraise - no more than it is for the Court today - the prospects of the action contemplated; it was for a solicitor to advise the applicant on his rights and then for a court to rule on any action that might be brought…The Court thus reaches the conclusion that there has been a violation of Article 8 (art. 8).” The cases where the court has generally turned down applications are those where strict conditions with regard to the implementation of the surveillance measures and to the processing of the information thereby obtained have been established.11 The formulation of Art. 8 in terms of respect for private life, rather than property means that it is capable of extending to any place where people live their lives.12 Harrison, J. in the case of R v. Brentwood Borough Council, ex parte Peck, reported in The Times of 18/12/1997 extended the incidental powers of local authorities to a point where neither the deployment of cameras nor the commercial exploitation and dissemination by a council of upsetting and embarrassing pictures of a person attempting suicide was subject to any legal control. Feldman severely criticizes this and calls for urgent regulation of the usage of CCTV cameras and dissemination of the material recorded by them to protect dignity. It is supported by the fact that “The Court reiterates that the storing of information relating to an individuals private life in a secret register and the release of such information come within the scope of Article 8 § 1 (see the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 22, § 48). “ The Court has already emphasised the correspondence of this broad interpretation with that of the Council of Europes Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which came into force on 1 October 1985 and whose purpose is “to secure ... for every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy with regard to automatic processing of personal data relating to him” (Article 1), such personal data being defined in Article 2 as “any information relating to an identified or identifiable individual” (see Amann v. Switzerland [GC], no. 27798/95, § 65, ECHR 2000-II). Moreover, public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities. …In the Courts opinion, such information, when systematically collected and stored in a file held by agents of the State, falls within the scope of “private life” for the purposes of Article 8 § 1 of the Convention. ”13 In the instant case also, the authorities through cctv surveillance were systematically collecting and storing information of private life in public. Also, it is clearly demonstrated that “Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings”14 , i.e., which relationship[ with whom to be divulged in public depends on the discretion of the individual. The public authority may have powers to employ such surveillance techniques but “No provision of domestic law, however, lays down any limits on the exercise of those powers. Thus, for instance, the aforesaid Law does not define the kind of information that may be recorded, the categories of people against whom surveillance measures such as gathering and keeping information may be taken, the circumstances in which such measures may be taken or the procedure to be followed. Similarly, the Law does not lay down limits on the age of information held or the length of time for which it may be kept. The Court notes that this section contains no explicit, detailed provision …  The Court must also be satisfied that there exist adequate and effective safeguards against abuse, since a system of secret surveillance designed to protect national security entails the risk of undermining or even destroying democracy on the ground of defending …Supervision procedures must follow the values of a democratic society as faithfully as possible, in particular the rule of law, which is expressly referred to in the Preamble to the Convention. The rule of law implies, inter alia, that interference by the executive authorities with an individuals rights should be subject to effective supervision, which should normally be carried out by the judiciary, at least in the last resort, since judicial control affords the best guarantees of independence, impartiality and a proper procedure…. ”15 In U.K. also the surveillance mechanism may be said to lack definitiveness. “As the Court held in the Johnston and Others judgment of 18 December 1986, "although the essential object of Article 8 (art. 8) is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective ‘respect’ for family life" (Series A no. 112, p. 25, para. 55).”16 According to some critiques17, in reaching the balance in Art. 8(1), the Court is determining the content of the protected right. It is thus incumbent on an applicant to establish the distinctive importance of the interest to him as it can be easy for the Court to underestimate this and there is no formal weight to attach to his claim as there could have been if his interest were already acknowledged as a right. In the instant case even this ground is being pleaded. In Malone v. UK18 “The Court would reiterate its opinion that the phrase "in accordance with the law" does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention …The phrase thus implies - and this follows from the object and purpose of Article 8 (art. 8) - that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1 (art. 8-1) (see the report of the Commission, paragraph 121). …Undoubtedly, as the Government rightly suggested, the requirements of the Convention, notably in regard to foreseeability, cannot be exactly the same in the special context of interception of communications for the purposes of police investigations as they are where the object of the relevant law is to place restrictions on the conduct of individuals. In particular, the requirement of foreseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. Nevertheless, the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence. There was also some debate in the pleadings as to the extent to which, in order for the Convention to be complied with, the "law" itself, as opposed to accompanying administrative practice, should define the circumstances in which and the conditions on which a public authority may interfere with the exercise of the protected rights. The …judgment in the case of Silver and Others, which was delivered subsequent to the adoption of the Commission’s report in the present case, goes some way to answering the point. In that judgment, the Court held that "a law which confers a discretion must indicate the scope of that discretion", although the detailed procedures and conditions to be observed do not necessarily have to be incorporated in rules of substantive law …The degree of precision required of the "law" in this connection will depend upon the particular subject-matter … Since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference…. Any attempt to broaden or otherwise modify the purposes for which or the manner in which interceptions may be authorised would require an amendment to the 1969 Act which could only be achieved by primary legislation.” In Kruslin v. France19 also the Court reached similar conclusions. It will not be enough to satisfy the convention simply to write unlimited administrative power into formal law.20 Feldman interprets this21 as requiring the state to have positive duties towards individuals in respect of personal information and pictures that it holds. It is to be noted22 that while the individual will have to establish some reason for explaining why the legal regime might be applied to him, once he has done that, there has been an interference with his right because of the threat to the effective enjoyment of them. The interference claimed of here is not of an actual, material effect but of the nature of a threat that material interference will occur leading to damage of the celebrity’s personal profile and may also be scandalous in nature due to speculation by press. Considering the above matrix of cases, it is opined that in the instant case an action under the Human Rights Act, 1998 is possible to restrain the authorities from identifying the applicants in the surveillance-video. Therefore, in the instant case, Duanne Stott can restrain the police authorities from publishing pictures of him with his friend, Kirsty in the instant case. 2) Separation of Powers – 5 3) Rule of Law – 7 4) (1) ROTARU v. ROMANIA - 28341/95 [2000] ECHR 192 (4 May 2000) (2) http://www.echr.coe.int/Eng/press/2000/May/Rotaru.eng.htm (3) Helpfullness of website – 7 BIBLIOGRAPHY Legislation: UK Human Rights Act, 1998 Books and Treatises D. Feldman, Civil Liberties and Human Rights in England and Wales, 2nd. Ed, OUP 2002, pp. 529 D.J Harris et al, Law of the European Commission of Human Rights, Butterworths, London 1995 M.W Janis et al, European Human Rights Law: Text and Materials, Clarendon Press, Oxford 1995,Pp. 290 List of Cases B v. France, 16 E.H.R.R 1Judgement of 25 March 1992 Burghartz v. Switzerland, 18 E.H.R.R 1Judgement of 22 February 1994 Gaskin v. UK, Judgement of 7th July 1989 Golder v. The United Kingdom, Eur.Ct. HR, Series A, No. 18, Judgement of 21 February 1975 Klass v. Germany, 2 E.H.R.R 214Judgement of 6 Sept 1978 Kruslin v. France, 12 E.H.R.R 547 Judgement of 24 April 1990 Malone v. UK, 4 E.H.R.R 330 Judgement of 2 August 1984 Rotaru v. Romania, Eur.Ct. HR, Series A, No. 18, Judgement of 21 February 1975 Read More