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W100 Rules Right and Justice

Question:

Using examples of the law on privacy and family discipline, consider how the law in the United Kingdom has to find a balance between competing human rights.

W100 Rules, Right and Justice: an introduction to Law

This essay will touch upon the matters of privacy and family discipline doctrine with regards to international and UK laws and as a makeweight to human rights. This essay will examine those matters using legal cases as examples and comment on those examples putting legal terminology and arguments, for and against, and respectably personal comments as well. It will discuss what human rights are with regards to privacy and matters of family discipline. It will show the contradiction between ECtHR and human rights and the English legal system concerning privacy and physical punishment. At the end, it will draw a conclusion as a whole to the essential part of the question and note how the UK law will balance among those controversial elements.

Human rights, as the word suggests, is an essential and fundamental element for individuals and societies as well. Human rights are set as a cornerstone that each person regardless race, age, colour of his skin, religion etc. have by virtue of humanity and that those rights can not be taken away by anyone. After the end of the World War II and those horrified memories of the genocide, cruelty, torture and barbarity to mankind, the Universal Declaration of Human Rights was drafted and signed in 1948. This declaration established the human rights and has managed to merge those rights as an essential part of every nation’s constitutional law. It has also eliminated terms such as slavery and establishes international laws as to overview that all states will enforce and respect those rules.

In addition, nations of European Union have created and signed the European Convention of Human Rights in Rome in 1950 and until 31 January 2006, 46 states have signed and ratified the convention even those who were not part of the EU. Some of the rights which the convention is protecting are the right to life, the right to liberty and security, the right to respect to family and private life etc. As to ensure that those rights will be enforceable by the contracted nations, the European Court of Human Rights took existence. One of the main tasks is to respect the rights and guarantees what is set out in the Convention and to examine complaints lodged by individuals or even states. If there is a violation of the rights then it delivers a judgment that is binding to every state.

As in evidence from earlier, privacy is being protected by international law and by the European Convention of Human Rights article 8. However, the right of privacy conflicts with a variety of laws such as morality, security matters and especially with article 10 of the ECHR, the freedom of expression. It could be argued that there is a fragile balance between those two articles and it depends on the case’s own merits to permit or to reject the right of privacy. For example, in the American case of Anonsen vs. Donohue (1993) the freedom of expression prevailed against the right of privacy and the court allowed the disclosure of the father daughter affair and the illegal impregnate to the public.

In an amazing way, the right of privacy does not exist in UK law. It takes you by a surprise because other European countries such as France and Germany have a legitimate statute on the right of privacy. Paradoxical as it may seem, UK courts have establish through years, a judicial law on privacy under the right of confidence. This doctrine is being used as a misuse of personal information of an individual. However, in Malone vs. Metropolitan Police Commissioner (1979) the telephone tapping by the police was held by the court as lawful action and that no right of privacy was breached. On the contrary, in Malone vs. UK (1984), the ECtHR ruled that police has violated art 8 of the Convention and that acted as ‘in the face of excessive and unregulated police surveillance.’

More to the point, the English legal system has a unique, complicate and controversial structure regarding statutes that protects his citizens. The judges avoided to enter to the notion of creating laws, perhaps deliberately, because they believed that, it is an obligation that must be left to the Parliament and because questions concerning human rights may also concerning political questions which judicial jurisprudence must not provoke. In the cases of Douglas and Others vs. HELLO and the case of Naomi Campbell vs. Mirror Group Newspapers, judges failed to create a law in privacy despite the fact that they have noticed a right of privacy, and that the right of confidence, has been breached. On the contrary, in the case of Hosking vs. Runting the New Zealand Court of Appeal moved a step forward and set the basis of a privacy law despite the fact that the claimant failed to grant a claim. The essential element here is that New Zealand judicial system is as close as to UK judicial system and nevertheless establishes law in privacy.

Along with the right of privacy, the right of corporal punishment was an issue that troubled the notion of Human Rights. Despite the fact that the ECtHR had abolished the corporal punishment in schools and inside the family, the current UK law was allowing parents and teachers to enforce reasonable and moderate chastisements to a child as a measure of discipline. In the case of R vs. Hopley (1860) the Cockburn CJ established a common law as to what was a reasonable punishment. He said that ‘ a parent[…] may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however with this condition that is moderate and reasonable.’. (Block 6, 2004, p.118).

Moreover, International and European bodies such as the UN Committee of the Right of child, the UN committee of Economic, Social and Cultural Rights, the European Committee on Social rights even committees inside the UK such as the Joint Committee on Human Rights and the House of Commons Health had criticized the way that UK common law handled the cases of family discipline and corporal punishments and made clear that all forms of physical violence are ‘increasingly anomalous’ and must be abolished. The case of Victoria Climbé (2000), who was an eight year old child who died after suffering injuries of physical punishments in the hands of her guardians, is a case that shows the emergency of abolition of reasonable chastisements.

The most characteristic and influential criticism in the UK common law regarding corporal punishment was in the case of A vs. UK (1998). In this case a 9 year old boy was beaten with a garden cane by his stepfather to a degree of bruises. The stepfather was charged with an assault by a parent to a child under the English law and his was acquitted by the defence of reasonable chastisement. The case held by the ECtHR which stated that the state (UK) has failed to protect the child from such forms of physical violence and to lay the stress that the state is responsible for that situation.

However, opponents of the ECtHR claimed that in the case of A vs. UK (1998), the European Court judges failed to make a judicial law that all corporal punishment should be prohibited and they just merely noted that parents should not treating their children brutally. In addition, in the case of Hatton and Others vs. UK (2003) was held that night flights to and away from Heathrow does not violate Art 8 of the ECtHR. As in the above case of A, ECtHR failed to establish a right of privacy and failed to interfere to an intimate right of individual, a right to a quiet night sleep. Many specialists in the area of human rights law criticized those cases as ‘backwards step’, claiming that the Convention balance interest of the minorities with other considerations failing to protect the right of privacy.

Moving our arguments to the international sphere, it is quite remarkable that other countries have introduced bans of corporal punishment. A hitting in the face example is Sweden. Sweden was the first country that introduced a statute which prohibits any form of physical violence against a child since 1979. The Italian Supreme Court in the case of Cambria, Cass, sez. VI 18 Marzo 1996 (Supreme Court of Cassation, 6th Penal Section, March 18 1996) Foro It II 1996, 407 stated that all parental use of corporal punishment are prohibited. In addition the Israeli Supreme Court in the case of Plonit vs. A.G banned all the use of force against a child noting that ‘such a force is damaging to the child’s human rights.’. Regardless the path that ECtHR took in the case of A vs. UK (1998), the ECtHR suggested that ‘all corporal punishment should be banned with no defence available to parents.’. Germany, has also introduced legislation to their Civil Law that prohibits all forms of physical violence protecting children from psychological harms..

Even though the UK has established the enactment of Human Rights Act 1998 and the Children Act 2004, after the pressure and the criticism that the ECtHR and International bodies enforced to the English legal system, the problem of human rights was not entirely solved. Cases regarding the liberty of individuals have been come affront to the English legal system. Even with those enactments the Parliament failed to protect the only group in the society that does not enjoy legal protection from assault. The enactment of the Children Act 2004 reinstated that reasonable punishment is lawful and introduced that lasting bruises, cuts, scratches and swelling are not reasonable.

It is questionable why the English legal system did not establish a ban of corporal punishment or in the right of privacy. Despite the fact that the model of Sweden regarding physical punishment is a good example and it adopted by a number of countries, the English legal system did not follow that road. Instead, it persists to own judicial judgments and statutes. Even that the enactment of Children Act 2004 provides a form of protection, it fails, some say deliberately, to set the boundaries and to provide guidance in a scrutiny area of the statute.

It is quite difficult to draw a safe conclusion to the matter being questioned. The English legal system is not just a black and white area but there is also a middle grey area. Some opponents argue that this is the beauty of the system which provides flexibility and correct interpretations, hearing each case separately and in owns merits. On the contrary, some others argue that it is also provide scrutiny and is misleading juries in some cases, reaching to wrong judgments that may harm the individuals, society even the state itself.

In the English legal system, foreign judgments are not considered to bind to the courts. However, judicial jurisprudence has set the basis of finding a balance between competing human rights. In the case of Barret vs. Enfield LBC (1999) 3 WLR 79 the House of Laws stated that courts in different jurisdictions learn from each other and try to achieve a careful analysis, weight up all the relevant considerations. This statement is very essential because it shows the influence of the International and European pressure to the English legal system. My personal opinion is that the English legal system must establish statutes regarding human rights such us the right of privacy and family discipline. By an existing ban, it removes all so called reasonable excuses, scrutiny and wrong interpretations while it sets the basis for the change of social attitudes and habits.

Bibliographies

Block 6: Rights in W100 Rules Rights and Justice: An introduction to law.
Reader 3: Rules, Right and Justice: An introduction to law.

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