Article 8

Where a particularly important facet of an individual’s existence or identity is in issue under Art 8,
the court will be less likely to accept that a contracting party should be afforded a broad discretion
and margin of appreciation e.g. X and Y case (young mentally handicapped girl who had been
sexually assault yet only a civil claim possible: breach of Art 8); Z v Finland (fundamental importance
of medical data); and Dudgeon (homosexual activity- sexuality most intimate part of one’s identity;
despite morality usually being large margin of appreciation).
Where two parties’ rights in issue e.g. Evans (wish of women to become pregnant using embryos
frozen vs man’s right- consent of both required: wide margin of appreciation as legislative scheme
had come after a lot of consideration, consultation and debate).
S and Marper – retaining of DNA data but UK alone in adopting such an extensive scheme so no wide
margin of appreciation.
Handyside – large margin where areas of morality.
Cases where wide margin of appreciation allowed because of lack of common ground in Europe can
(e.g. Rees – changing entries on birth certificates; cf Dudgeon- no longer appropriate in most states
for homosexual practices to have criminal sanctions) be seen as further examples of the principle
that the nature of the individual right determines the breadth of the margin since a divergence in
national law may indicate that the nature and degree of importance of the individual interest is still
in the process of being understood, recognised and accepted.