Article 8 and decision making

Two recent decisions demonstrate the reach, applicability and importance of Article 8 of the European Convention on Human Rights in terms of the functions and decision-making of public bodies, write Peter Wake and Nick Peel.

In R(O) v (1) Secretary of State for Justice and (2) National Probation Service in Wales [2016] EWHC 329, the claimant was a convicted sex offender. In light of reoffending, his licence conditions included a restriction on his possession and use of a camera and mobile phone, unsupervised contact with his grandchildren or other children and accessing the family home. He argued that the conditions constituted excessive imposition on his rights and those of his family under article 8.

In R(G) v (1) CC Surrey Police (2) and (3) Secretary of State for the Home Department and Justice [2016] EWHC 295, the claimant had been issued with two reprimands aged 13 for offences of sexual activity with a child. A change in policy meant that such reprimands would remain on the police national computer indefinitely or until the individual was 100 years old. Aged 18 the claimant applied for employment that required enhanced disclosure. Under the Police Act 1997 disclosure of the reprimands was required within enhanced disclosure. G argued that this amounted to unlawful and unjustified interference with his article 8 rights.

Decisions

R(O) – all the restrictions were expressly contemplated by, and in accordance with, the state’s policy on licence conditions. Whilst some of the conditions clearly interfered with his article 8 rights, there was proper legal authority for them and they were in pursuit of a legitimate aim. They were also proportionate in terms of managing the risk whilst allowing the claimant the opportunity to demonstrate a reduced risk such that conditions might be relaxed by a supervising officer.

R(G) – there were insufficient procedural safeguards in the statutory regime to ensure that the data was relevant to (and necessary for) the purpose for which it was to be disclosed. Applying MM v United Kingdom, the interference with G’s article 8 rights was therefore not in accordance with the law.

Comment

Detractors of the HRA 1998, and with particular regard for the judge’s application of a decision of the European Court of Human Rights in G, might view the mere ability to raise such human rights arguments as unsatisfactory. Conversely, proponents will see the Human Rights Act acting as an appropriate arbiter of state power. Whatever one’s view, the importance of article 8 is beyond doubt. (For further information about article 8 and relevant case law see our guide here).

Peter Wake and Nick Peel are partners at Weightmans. Peter can be reached on 0151 242 6866 or by email, while Nick can be contacted on 0151 242 9453 or This email address is being protected from spambots. You need JavaScript enabled to view it..