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Article 8 Echr and Its Impact on English Law View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by OpenGrey Repository ARTICLE 8 ECHR AND ITS IMPACT ON ENGLISH LAW JANA GAJDOŠOVÁ PhD UNIVERSITY OF EAST ANGLIA LAW SCHOOL 2008 © This copy of the thesis has been supplied on condition that anyone who consults it is understood to recognise that its copyright rests with the author and that no quotation from the thesis, nor any information derived therefrom, may be published without the author’s prior, written consent. Abstract The thesis examines the scope of the right to respect for one’s private life, family life, home and correspondence as set out in Article 8 of the European Convention on Human Rights (ECHR). It does so with reference to both the admissibility and merits decisions and judgments from the European Court of Human Rights (ECtHR). It thus shows not only the range of interests that Article 8 covers in the light of the main ECHR principles of proportionality, margin of appreciation or that of living instrument, but also the interests and rights that fall outside Article 8’s ambit. At the same time, it offers a clear picture of two basic procedural stages that each individual complaint has to go through in Strasbourg. The thesis then proceeds with an analysis of the impact of the above-mentioned jurisprudence under Article 8 on English law. It does so by examining the major ECtHR judgments under Article 8 in general, and those in which the UK has been found in breach of Article 8 in particular. It aims to determine whether there has been a positive dialogue between the ECtHR and the UK and whether domestic law and legal thinking have somehow changed as a result of the ECtHR’s jurisprudence under Article 8. With references to the specific areas of domestic law, it subsequently addresses the most common factors, such as judicial deference, the way domestic judges apply the proportionality principle, minimal/case specific compliance, persistence of traditional common law doctrines, or the tendency to treat the HRA as a panacea, which have resulted in the overall impact of Article 8 on domestic law being only very limited. 2 LIST OF CONTENTS 1 INTRODUCTION ......................................................................................6 2 PRIVATE LIFE .......................................................................................14 2.1 Private Life under the ECHR ........................................................................................................... 14 2.1.1 What is not Private Life and what does not constitute an Interference with one’s right to it: a First Stage....................................................................................................................................... 14 2.1.2 The scope of Private Life Protection: a Second Stage.............................................................. 24 2.2 Private Life in English Law ............................................................................................................. 32 2.3 Private Life: Conclusion................................................................................................................... 65 3 FAMILY LIFE..........................................................................................68 3.1 Family Life under the ECHR ........................................................................................................... 68 3.1.1 What is not Family Life and what does not constitute an Interference with one’s right to it: a First Stage....................................................................................................................................... 68 3.1.2 The scope of Family Life Protection: a Second Stage.............................................................. 77 3.2 Family Life in English Law ............................................................................................................. 89 3.3 Family Life: Conclusion................................................................................................................. 106 4 HOME...................................................................................................108 4.1 Home under the ECHR .................................................................................................................. 108 4.1.1 What is not Home and what does not constitute an Interference with one’s right to it: a First Stage..................................................................................................................................... 108 4.1.2 The scope of Home Protection: a Second Stage..................................................................... 113 4.2 Home in English Law..................................................................................................................... 117 4.3 Home: Conclusion.......................................................................................................................... 127 5 CORRESPONDENCE ..........................................................................130 5.1 Correspondence under the ECHR .................................................................................................. 130 5.1.1 What is not Correspondence and what does not constitute an Interference with one’s right to it: a First Stage .................................................................................................................... 130 5.1.2 The scope of Correspondence Protection: a Second Stage..................................................... 133 5.2 Correspondence in English Law..................................................................................................... 137 5.3 Correspondence: Conclusion.......................................................................................................... 152 6 POSITIVE OBLIGATIONS ...................................................................155 6.1 Positive Obligations and Private Life............................................................................................. 155 6.1.1 Positive Obligations and Private Life under the ECHR.......................................................... 155 3 6.1.2 Positive Obligations and Private Life in English Law............................................................ 166 6.2 Positive Obligations and Family Life............................................................................................. 172 6.2.1 Positive Obligations and Family Life under the ECHR.......................................................... 172 6.2.2 Positive Obligations and Family Life in English Law............................................................ 181 6.3 Positive Obligations and Home...................................................................................................... 186 6.3.1 Positive Obligations and Home under the ECHR................................................................... 186 6.3.2 Positive Obligations and Home in English Law..................................................................... 191 6.4 Positive Obligations and Correspondence...................................................................................... 196 6.4.1 Positive Obligations and Correspondence under the ECHR................................................... 196 6.4.2 Positive Obligations and Correspondence in English Law..................................................... 198 6.5 Positive Obligations: Conclusion ................................................................................................... 202 7 CONCLUSION......................................................................................205 TABLE OF CASES......................................................................................213 TABLE OF LEGISLATION..........................................................................237 BIBLIOGRAPHY .........................................................................................239 4 Acknowledgements My family has been a long lasting source of energy during this exhaustive research. The complete security of being part of a loving, supportive and caring family, I believe, makes anything possible. I therefore sincerely thank my dearest mum and dad (‘mamco a ta ťo’): I would never have reached this goal without your help and trust in me. My very special thanks goes to my boyfriend ‘Makovec’, who has supported me during the whole time of my work. He has experienced all of the highs and lows of this PhD right beside me and has been my sounding board throughout the entire time. For this and much more I will love you forever: to my ‘mamco’, ‘ta ťo’ and ‘Makovec’ I wish to dedicate this thesis. Many people from the Norwich Law School deserve thanks and appreciation for this thesis. Stathis Banakas is the first on the list for his guidance and support as my supervisor. Stathis was an invaluable source for my research, being available at anytime, despite his hectic schedule. I feel more than grateful to Iyiola Solanke who offered me a position as a Research Assistant in her project during my PhD. This interesting research experience played an important role in my subsequent career. Iyiola’s continuous encouragement and positive thinking, furthermore, helped me to understand that everything, even a PhD, is possible. I also owe great gratitude to Gareth Thomas, Dean of the Law School in Norwich. Had he not patiently responded to all my emails in order to help me to obtain some financial support in the second year of
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