Judgment Approved by the court for handing down
(1)
R (Bridges) v CCSWP and SSHD
Has there been an interference with the Claimant’s Article 8(1) rights?
Reach of Article 8(1)
47.
It is now well-established that the reach of Article 8(1) is broad. The notion of
“private life” is not susceptible to exhaustive definition. It covers the
“physical and psychological integrity” of a person. A person’s private and
family life can therefore embrace multiple aspects of a person’s “physical and
social identity”, including (relevantly in the present case), e.g. gender, name,
other means of personal identification and of linking to a family, ethnic
identity, and elements relating to a person’s right to their image (S v. United
Kingdom (2009) 48 EHRR 50, at [66]; Von Hannover v. Germany (2004) 40
EHRR 1, at [50] (cited by Lord Toulson in Re JR 38 [2016] AC 1131 at [84])).
48.
The phrases “physical and psychological integrity” and “physical and social
identity” are the central value protected by Article 8 and have been described
as the “personal autonomy of every individual… [which] marches with the
presumption of liberty enjoyed in a free polity; a presumption which consists
in the principle that every interference with the freedom of the individual
stands in need of objective justification” (per Laws LJ in R(Wood) v.
Commissioner of Police of the Metropolis [2010] 1 WLR 123 at [20]-[21],
(cited by Lord Toulson in Re JR 38 , ibid, at [86])).
49.
Yet the reach of Article 8(1) is not without limit. In R(Wood) v. Commissioner
of Police of the Metropolis, ibid, at [22], (cited with approval by Lord Toulson
in Re JR 38, ibid, at [86])), Laws LJ stated as follows
“22. This cluster of values, summarised as the personal
autonomy of every individual and taking concrete form
as a presumption against interference with the
individual's liberty, is a defining characteristic of a free
society. We therefore need to preserve it even in little
cases. At the same time, it is important that this core
right protected by article 8, however protean, should not
be read so widely that its claims become unreal and
unreasonable. For this purpose, I think there are three
safeguards, or qualifications. First, the alleged threat or
assault to the individual's personal autonomy must (if
article 8 is to be engaged) attain “a certain level of
seriousness”. Secondly, the touchstone for article 8(1)'s
engagement is whether the claimant enjoys on the facts
a “reasonable expectation of privacy” (in any of the
senses of privacy accepted in the cases). Absent such an
expectation, there is no relevant interference with
personal autonomy. Thirdly, the breadth of article 8(1)
may in many instances be greatly curtailed by the scope
of the justifications available to the state pursuant to
article 8(2). …”