The European Convention on Human Rights (ECHR)

The European Convention on Human Rights (ECHR)

 

Question 1 (60 marks)
‘The European Convention on Human Rights (ECHR) exists to guarantee legal protection to fundamental rights.’
Critically evaluate this statement using examples from Block 1, Block 6 and the associated materials.
Your answer should briefly consider the protection of rights in English law generally, as well as explaining the effect of the implementation of the Human Rights Act 1998 in the UK. However it should focus on critically evaluating whether or not UK law protects the fundamental rights contained in the ECHR.
Question 2 (40 marks)
Scenario
Charlotte is a 29-year-old singer who has been writing and recording music since her late teens. She has released a number of songs on the internet; the first of which was a dreary nondescript song entitled ‘First Love’. Most recently Charlotte has gained a significant following after releasing a song she wrote, entitled ‘Melancholy’, on a UK video website. This was picked up by a local DJ and has since been played on national radio. The subject of the song is vague, but speaks of extreme sadness and pain. Due to the number of internet hits and the airplay that ‘Melancholy’ gets, there has been significant media interest in Charlotte since the song was released. She has just signed a contract with UK record label Tepid for the release of an album. Signing the contract eventually took place after a lengthy process of negotiation between Charlotte’s lawyers and Tepid.
Yesterday, an interview with her recently estranged fiancé David was published in a national newspaper. In the interview David explains the motivation and emotion behind Charlotte’s songs. He identifies her childhood sweetheart Paul as the subject of ‘First Love’. He alleges that ‘Melancholy’ was written to help Charlotte overcome domestic abuse she suffered at the hands of Paul when she was just 18 years old. He also alleges that she suffers from anorexia as a result of this. The newspaper has printed alleged extracts from correspondence between Charlotte’s lawyers and Tepid which refer to health issues needing to be resolved prior to entering into the contract to release an album. Charlotte has tweeted that the claims made are devastating and denies the allegations made in the interview, although further tweets from some of Charlotte and Paul’s old school friends suggest that there is some truth to David’s allegations about Paul, one of which says, “Yeah, he always was a bully”. Photos of Charlotte and Paul which were taken during their school days have since been posted on the internet, along with speculation about her continuing health issues.
Five years ago Paul married and photos of his wife, Sarah, jogging in her local park with members of a local weight-loss group appear alongside David’s interview in the newspaper. Paul and Sarah have two small children. Sarah joined the group after having their second child in an effort to regain her pre-pregnancy figure. Sarah is extremely upset and embarrassed by the pictures and the suggestion in the story about Charlotte’s anorexia, as she believes it implies that she is being pressured to lose weight by Paul.

For the purpose of the question, imagine you are a junior solicitor and have been asked by your senior partner to prepare a report for them to be able to advise in the following situations:
whether or not Charlotte might have a claim against the newspaper in respect of the interview?
whether or not Sarah might have a claim against the newspaper in respect of the publication of the photos?
General advice
TMA 05 consists of a legal essay question and a legal problem question. You are required to answer both questions. You should read the specific advice for each question carefully before tackling them.
Advice for Question 1
Question 1 requires you to write an essay. Your essay should be appropriately structured with an introduction, a main body and conclusion.
You may find it helpful to remind yourself of the advice given on approaching essay questions in Appendix 7 of the ‘Introduction to W100’ booklet. You should also review and reflect on the written feedback received on previous essay questions in TMAs 01, 02 and 04. Using this you should identify aspects of essay writing you do well and which areas you may need to improve for this TMA.
Before starting to write you should plan your answer by analysing the question and identifying the key words. Preparing an essay plan will help to organise the structure and content of your answer. You should ensure that every point made in the main body of the essay contributes towards a well-structured, logical answer to the question. You should read the question carefully and break it down into its component parts in order to plan how you intend to address all aspects of the question.
All the information you need to answer the question is in Block 1, Block 6 and the associated materials. Law assessment often uses a statement as the basis for a question. The question asks you to critically evaluate. You should check the meaning of ‘evaluate’ in Appendix 1 of the ‘Introduction to W100’ booklet. Critical evaluation requires that you must do more than describe the law in this area. You need to evaluate the statement using examples from Block 1, Block 6 and the associated materials. No credit will be given for examples from any other part of the module or elsewhere.
You are advised to briefly consider how rights are protected in law. You are asked to explain the implementation of the Human Rights Act 1998 in the UK which requires you to explain its operation and effect on UK laws. You should consider the way in which the UK approaches the protection of rights as part of your answer. In evaluating this you may wish to consider issues such as conflicting rights, for example how UK law approaches the balance between different rights under the Human Rights Act 1998, or legal limitations on rights, such as those contained in the ECHR, or the UK approach to implementation of the rights in the English legal system. You should use examples to support the development of your argument.
Advice for Question 2
As this is a problem question you are advised to read Appendix 8 of the ‘Introduction to W100’ booklet and your feedback from TMA 03 and TMA 04 carefully before attempting this question. In particular, you should remember that every statement of law that you make should be backed up by a full and precise reference to a specific case or piece of legislation, for example the Human Rights Act 1998 or the ECHR. Your answer should cover both the common law right of confidence under Coco v A N Clark (Engineers) Ltd (1969) RPC 41 and after Campbell v Mirror Group Newspapers (MGN) Ltd [2002] All ER (D) 448, and human rights law.
In planning your answer:
Read the information very carefully.
Familiarise yourself with the relevant law as outlined in Block 6 and the associated materials.
Identify which facts might be relevant to the questions asked. Not all the facts in the scenario will be relevant.
You need to build an argument based on your application of the legal provisions to the relevant facts in the scenario.
If there are any points of uncertainty regarding the facts, you should identify them. You should then explain the legal consequences that would follow from each of the possibilities.
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