FRIEND AND OTHERS v. THE UNITED KINGDOM
Inadmissible
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
1. These two applications challenge various bans on fox hunting and the hunting of other wild mammals with dogs in the United Kingdom. The first application has been lodged by Captain Brian Leonard Friend, a British national who was born in 1939 and lives in Axminster, Devon. He is referred to below as the first applicant. His application relates to his challenge to the ban on hunting in Scotland and his challenge, in separate legal proceedings, to a similar ban in England and Wales. The second application has been lodged by the Countryside Alliance and ten other applicants whose details are set out in the appendix. They are all represented by Clifford Chance LLP. The Countryside Alliance is a non-governmental organisation, which seeks to influence legislation and public policy that has an impact on the countryside, rural people and their activities. At the time of the domestic proceedings set out below, it had around 100,000 ordinary members and 250,000 associate members. The ten other applicants are British nationals who claim to have been affected by the ban in different ways. The Countryside Alliance and the ten other applicants in this application are referred to below as the second applicants. They sought to challenge the ban on hunting in England and Wales only. 2. On the basis of the facts as stated in the domestic proceedings and by the applicants before this Court, the cultural and social background to hunting can be summarised as follows. Hunting with hounds has a long history in rural Britain. While it encompassed the hunting of deer, hare and mink, before the bans took effect, the principal quarry were foxes. These were traditionally hunted as vermin in order to protect farm stock. Over time, hunting of various quarries evolved such that the activity was organised in a particular area around a “Hunt”. The modern Hunt usually involves a pack of hounds, horseback riders and others who follow the hounds on foot. Any given Hunt now has its own particular customs and practices, including codes, dress, etiquette and hierarchy. The hunting season traditionally runs from early autumn until spring; most Hunts go out twice a week in that period, though larger Hunts may do so more frequently. Within each Hunt there is a Master of Hounds and other positions. Hunts are regulated by the Masters of Hounds Associations. Various charitable, community and social events have grown up around Hunts across the country. Members of the hunting community share the responsibilities for the organisation of the Hunt, for example caring for the hounds of a Hunt; those involved also have a common duty to repair any damage to the land on which the Hunt takes place. 3. In her witness statement before the High Court (see paragraph 6 below), which was characterised by that court as “largely unchallenged factually”, the President of the Countryside Alliance, Baroness Mallalieu, also stated that hunting was supported by the vast majority of farmers and land owners who allowed it to take place on privately owned land. She also averred that, in England and Wales, there were 174 registered fox hunting packs, one fox hunting club, 65 beagle packs, 12 harrier packs, 8 basset packs, 3 deerhound packs, 23 minkhound packs and 6 fell packs (with 2 affiliated fell packs). There were 27 registered Welsh gun packs and 56 registered Welsh hunting packs, although those registered with the Federation of Welsh Packs were only a proportion of the total number of packs in Wales. 4. In the case of Adams v. the Scottish Ministers (see paragraph 32 below), the Inner House of the Court of Session relied on a report prepared by the Rural Affairs Committee of the Scottish Parliament, which found that ten mounted hunts operated in Scotland and that two hunts based in Northumberland, England, regularly visited the Scottish Borders region. 5. In December 1999, the Home Secretary asked a committee under the chairmanship of Lord Burns to inquire into the various aspects of hunting and its impact. It was also asked to inquire into the consequences of any ban and how it might be implemented. After conducting hearings across England and Wales, the Burns Committee reported in June 2000. It did not address whether hunting should be banned but said that it believed its report would help inform the debate that followed its publication. In December 2000, the Government introduced the Hunting Bill 2000 in the House of Commons, which offered three choices: regulation, supervision or prohibition of hunting. The Bill was not enacted as the House of Commons voted for prohibition and the House of Lords voted for supervision, which meant the Bill could not pass before the 2001 General Election. A second Bill was introduced by the Government in 2002 which banned deer hunting and hare coursing but permitted fox, hare and mink hunting subject to registration. This was amended by the House of Commons to reject registration in favour of a ban on hunting, subject to exceptions. The registration system was reinstated by the House of Lords. In the following session of Parliament, the House of Commons passed a Bill which banned hunting, again subject to exceptions. This Bill became law (the Hunting Act 2004 – the 2004 Act) without the approval of the House of Lords pursuant to the Parliament Acts 1911 and 1949. For the provisions of the 2004 Act, see paragraph 30 below. 6. The first and second applicants challenged the legality of the 2004 Act by way of judicial review, arguing that it was incompatible with their rights under the Convention. A separate but related challenge was brought based on European Community law and the freedom to provide goods and services under Articles 28 and 49 of the EC Treaty. 7. Having reviewed the factual evidence before it, as well as the Burns Report, the High Court considered the impact the ban would have on the applicants. It stated: “85. We are distinctly cautious in assessing, so far as we have to, the short, medium or long term effects of a ban on hunting which is regarded as permanent. The evidence of individual claimants of the actual or anticipated effect on them is unchallenged, other than by general contentions whose force we find unpersuasive. There is bound, we think, to be a decline in riding to hounds. We hesitate to say how sharp that decline might be. The Burns Report was similarly cautious. Fox hunts will not, we suppose, all disband overnight. Still less will related social activities collapse immediately. On the other hand, we cannot but suppose that there would be a substantial contraction of hunting related activities in the medium term. More importantly, for present purposes, we proceed on the scarcely contested basis that a significant number of individuals, of whom the individual claimants are representative, will suffer in a variety of tangible and economic ways and that some will lose all or part of their present livelihood. The extent to which they may be able to find alternatives is scarcely predictable. Some, no doubt, may not. ... The Hunting Act will have a substantial general adverse effect on the lives of many in the rural community in England and Wales. It will have a direct effect on a significant number of individuals, of whom the individual claimants are representative. Some of these effects may not be immediate, but much of it is likely to happen in the short to medium term.” 8. The High Court found, however, that the ban did not interfere with the private lives of any of the claimants. Nor was there an interference with their right to respect for their homes with regard either to those applicants who had land over which hunts passed or those whose homes were tied to their employment or business insofar as their employment or business would be affected by the ban. There was similarly no interference with the applicants' rights under Article 11 § 1. It also found that Article 14 was not applicable since membership of the hunting community was not a personal characteristic amount to a status analogous with those contained in that Article. The High Court was, however, prepared to accept that there was an interference with their rights under Article 1 of Protocol No. 1, though that interference mainly, if not entirely, constituted control of use, not deprivation of property. 9. The precise nature of that interference was a matter of dispute between the parties. The applicants alleged that there were eleven interferences with property, grouped under three heads. First, in respect of land, there were interferences arising from: (i) the use of land to hunt by the owner; (ii) permitting others to hunt over one's own land; (iii) the value of land; (iv) expense associated with the removal of buildings and equipment which was of use only in the hunting industry; and (v) the reinstatement of land which had been modified specifically for hunting with dogs. Second, in respect of the livelihoods of certain of the applicants, there were interferences with: (vi) an individual's job and/or livelihood; (vii) the benefit of an existing contract of employment or contract for services related to hunting and (viii) goodwill in and/or the value of existing businesses which were reliant on the hunting industry for a large proportion of their income or the viability of their business. Third, in respect of other property, there were interferences as regards (ix) dogs; (x) horses and vehicles; and (xi) miscellaneous hunting equipment. 10. It was conceded by the Government that the 2004 Act interfered with the property covered in (i), (ii), (ix), (x) and (xi) above and that Article 1 of Protocol No. 1 would be engaged to the extent that the Act had the indirect consequence of diminishing the values of land or other property or of damaging the goodwill of a business. The High Court agreed. In addition, “livelihood” was to be regarded as falling between the marketable goodwill of a business, which was a possession, and a loss of future income, which was not. To the extent that the Inner House of the Court of Session in Adams (see below) had regarded “livelihood” as a possession, the High Court declined to follow its ruling on that point. 11. Having reached these conclusions on Articles 8 § 1, 11 § 1, the High Court nevertheless examined whether the 2004 Act was justified under Articles 8 § 2 and 11 § 2 of the Convention and whether it was proportionate under Article 1 of Protocol No. 1. That examination was joined to its examination of whether the Act was justified for the purposes of the restrictions it placed on the free movement of goods and services as guaranteed by European Community law. It found that, for Articles 8 § 2 and 11 § 2, the 2004 Act pursued the legitimate aims of the prevention of disorder, protection of health or morals and the protection of the rights and freedoms of others and, for Article 1 of Protocol No. 1 and Article 14 (if the latter were applicable), that it pursued “legitimate objectives of public policy”. The Act was also in accordance with and prescribed by law for the purposes of Articles 8 § 2 and 11 § 2; no claim could be made that it lacked legal certainty or adequate procedural safeguards. 12. The first and second applicants' claimed that the Act was disproportionate because the House of Commons had adopted a more restrictive measure than that proposed by the Government and, further, that the Act itself promoted cruelty to foxes because it only allowed them to be shot, which, in certain cases, wounded but did not kill outright. The High Court rejected this argument, and instead found there was sufficient material for the House of Commons to conclude that hunting with dogs was cruel and that it was open to it to decide that legislative schemes other than a ban were unworkable. In the High Court's view, the balance to be struck between the legitimate aim pursued and the interference with rights and freedoms it engendered was: “intrinsically a political judgment and a matter of domestic social policy, incapable of measurement in any scientifically calibrated scale, upon which the domestic legislature had a wide margin of discretion.” 13. The High Court also found that, contrary to the first applicant's submissions, no issues arose in respect of Articles 9, 10, 17 and 53 of the Convention. Claims originally made under Articles 6 and 7 made by the applicants were not pursued before the court. 14. The High Court gave the second applicants permission to appeal in respect of their claims under Articles 8 and 11 and Article 1 of Protocol No. 1 and refused the first applicant permission to appeal. The second applicants duly appealed to the Court of Appeal and the first applicant renewed his application for permission to appeal before that court. 15. Further evidence and witness statements were provided to the Court of Appeal. The Government submitted that since the passage of the 2004 Act, hunts had continued in alternative forms such as drag or trail hunting, where mounted riders and hounded pursued an artificial scent rather than live quarry; the applicants adduced evidence that this was an inferior and unrealistic alternative. 16. In respect of Article 8, the Court of Appeal found that it was not engaged and added: “We have reached the foregoing, clear, conclusions on the assumption that some at least of the consequences of the Hunting Act feared by the [applicants] will in fact eventuate... But at the same time it is valuable to remind ourselves of circumstances in the real world. The new evidence adduced by the [Government] shows that things appear to have gone on very much as before, even if trail-hunting is regarded as a very inferior form of sport to the real thing.” 17. The court reached a similar conclusion in respect of Article 11: “We entirely agree with both of our predecessor courts [the High Court and the Court of Session – see below] that it cannot be said that the Hunting Act interferes with the right of the [applicants] to assemble. All that it does is to prohibit a particular activity once the [applicants] have assembled. Moreover, the Hunting Act has now been in force for over a year, and the hunts have been assembling in greater numbers than ever. If they choose at some time in the future to lose interest in trail hunting or in other activities that are not directly prohibited by the Hunting Act, that will be a matter for them.” 18. On Article 1 of Protocol No. 1, the Court of Appeal followed the approach of the High Court in accepting that that provision would only be engaged to the limited extent conceded by the Government. The Court of Appeal also upheld the reasoning of the High Court as to the legitimate aims pursued by the 2004 Act and its proportionality. That conclusion applied equally to Article 1 of Protocol No. 1 and Articles 8 and 11 if, contrary to its conclusions, those Articles were engaged. 19. The Court of Appeal found that the first applicant's renewed application for permission to appeal, brought in respect of his separate claims under Articles 9, 14, 17 and 53, should be refused as it had no reasonable prospect of success. It also refused the second applicants permission to appeal to the House of Lords. The second applicants then petitioned the House of Lords and, on 7 November 2006, an Appeal Committee of the House of Lords gave leave to appeal (see paragraph 24 below). 20. The Protection of Wild Mammals (Scotland) Act was passed by the Scottish Parliament on 13 February 2002 and entered into force on 1 August 2002. The 2002 Act prohibited the hunting of all wild mammals (except rabbits and rodents) with dogs (see relevant domestic law and practice at paragraph 31 below) 21. Together with one other petitioner, the first applicant, as a member of the Berwickshire Hunt, sought judicial review of the Act, contending that it was not within the legislative competence of the Scottish Parliament, inter alia, because it was incompatible with Articles 8 – 11, 14, 17 and 53 of the Convention. 22. The petition was dismissed by the Outer House of the Court of Session on 20 June 2003. The Lord Ordinary found that Article 8 was not engaged: hunting was a complex social activity, carried on under public gaze, which clearly extended beyond the sphere of purely private life. He also dismissed the argument made by the first applicant and his copetitioner that Article 8 was engaged because hunting was so intrinsic to their way of life as to be their primary characteristic. Their case had to be distinguished from the gypsy lifestyle at issue in Chapman v. the United Kingdom [GC], no. 27238/95, ECHR 2001I and the Saami way of life at issue in G. and E. v. Norway, nos. 9278/81 and 9415/81, Commission decision of 3 October 1983, Decisions and Reports (DR) 35, p. 30. A person's profession or recreation might assume great importance in his life but that was quite different from the situation where an activity was so closely associated with the way of life of a particular group that it fell to be regarded as integral to the individual personality of every member of that group. Furthermore, the hunting community could not be regarded as a distinct ethnic group. The Lord Ordinary rejected the applicant's submissions that Articles 9, 10 and 11 were engaged but indicated that, had he found any of Articles 8 – 11 to be engaged, he would nevertheless have held that the Scottish Parliament was entitled to come to the view that the ban was necessary in a democratic society and pursued the legitimate aim of the protection of morals. For the Lord Ordinary Article 14 could not apply because hunters could not be regarded as having a personal characteristic or status for the purposes of that Article; fox hunting was a common activity engaged in by a heterogeneous group of individuals. To the extent that the first applicant continued to rely on it before him, the Lord Ordinary did not regard Article 17 as relevant to the case. The same consideration applied to Article 53: it did not confer any rights on which the petitioners could rely. 23. The applicant appealed to the Inner House of the Court of Session. By this time, the Second Division of the Inner House had already given its judgment in Adams v. the Scottish Ministers, where, in a separate judicial review challenge brought by the Scottish hunting community, it had found the 2002 Act to be compatible with Articles 8, 11 and 14 of the Convention and Article 1 of Protocol No. 1 (see paragraph 32 below). On 27 September 2005, an Extra Division of the Inner House refused the first applicant's appeal. It found no reason to depart from the conclusions of the Second Division in Adams or the Lord Ordinary in the present case that Articles 8 – 11 and 14 were not engaged. It also upheld the Lord Ordinary's ruling in respect of Article 17 and the Article 53 submission was not pursued before the Inner House. The first applicant appealed to the House of Lords (see below). 24. On 28 November 2007 the House of Lords gave judgment on the first applicant's appeal from the Inner House of the Court of Session and the second applicants' appeal from the Court of Appeal. It unanimously dismissed both appeals. 25. In the second applicants' appeal, Lord Bingham of Cornhill found that Article 8 was not engaged, judging the applicants' complaints to be “far removed from the values which Article 8 existed to protect”. Fox-hunting was a very public activity and therefore no analogy could be drawn between it and any of this Court's cases where the notion of personal autonomy was found to underlie the right to respect for private life. Nor could any analogy be drawn with G and E, cited above, or Buckley v. the United Kingdom, 25 September 1996, Reports of Judgments and Decisions 1996IV, where the applicants belonged to distinctive groups, each with a traditional culture and lifestyle at issue that was so fundamental as to form part of its identity. The hunting community could not be portrayed this way. That certain of the applicants were prohibited from hunting on their land was not an interference with the right to respect for their home since, in ordinary usage, such land could never be described as home. For those applicants who complained that they stood to risk losing their homes from the hunting ban, this was not the necessary or intended consequence of the 2004 Act and none of them had been evicted or might ever be. Finally, the applicants relied on the case Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, ECHR 2004VIII, as authority for the proposition that there would be an interference through loss of livelihood as a result of the ban but, for Lord Bingham, this was a very extreme case which could be distinguished on its facts. Lord Bingham was not content to treat Article 11 as inapplicable: the right to assemble was of little value if the applicants, having assembled to act in a certain way, were prohibited from carrying out that activity. He then took the same approach as the High Court and Court of Appeal in considering whether the 2004 Act was justified under Articles 8 § 2 and 11 § 2 and, to the extent that Article 1 of Protocol No. 1 applied, whether the Act was a proportionate interference with the right to property. He concluded that it was: respect had to be paid to the recent and closely-considered judgment of Parliament. Finally, for Lord Bingham, no claim could be made under Article 14 as no personal characteristic of any of the applicants could be described as an “other status” under that Article. 26. Lord Hope of Craighead and Baroness Hale of Richmond agreed with Lord Bingham, save that neither found Article 11 to be engaged. For them, it was insufficient simply to find that Article 11 did not apply on the grounds that the effect of the ban was not to prohibit the assembly of a hunt but to prohibit a particular activity which the hunt might engage upon once it had assembled. Instead, Lord Hope found Article 11 to be inapplicable because that Article did not guarantee a right to assemble for purely social purposes. The applicants' position was no different from that of any other persons who wished to assemble in a public place for sporting or recreational purposes. It fell well short of the kind of assembly whose protection was fundamental to the proper functioning of a modern democracy. Baroness Hale agreed: the kind of assembly protected by Article 11 had to be read alongside Article 10 and the democratic values those Articles sought to protect. 27. Lord Brown of Eaton-under-Heywood agreed that Article 8 was not engaged but stated his strong wish that it were otherwise and that the scope of Article 8 should be developed by this Court. He also agreed that Article 11 was not engaged but that Article 1 of Protocol No. 1 was. As to proportionality, Lord Brown was prepared to accept that moral objection to hunting as expressed in the 2004 Act was sufficient justification for the “comparatively slight” interference with the applicant's property rights. However, under Article 8 § 2 he regarded the test to be much stricter and was unable to regard such an ethical objection to hunting as a sufficient basis for holding the ban to be necessary. 28. Lord Rodger of Earlsferry agreed in particular with the reasons given by Lord Brown and also found that Article 8 was not engaged. He accepted that certain activities could be regarded as integral to a person's identity and so form part of their private life for the purposes of Article 8. He also considered the activities which Princess Caroline had been photographed doing in public in Von Hannover v. Germany, no. 59320/00, ECHR 2004V (horse riding, riding her bicycle, playing tennis and going to the market) and suggested that if photographing her doing these things interfered with her rights under Article 8, then a law banning her from these activities would have constituted a greater interference. However, a distinction had to be drawn between, on the one hand, doing such activities simply for one's own enjoyment and the development of one's personality and, on the other, carrying out the same activity for a public purpose, where one could not be said to be acting for personal fulfilment alone. In the latter, a person might still be developing his or her personality through the activity but would have left the sphere in which they would be entitled to the protection of Article 8. He agreed with the Inner House of the Court of Session in Adams that a hunt took on the character of spectator sport and a public spectacle and thus that the applicants were not entitled to the protection of Article 8. 29. The first applicant's appeal was dismissed for the same reasons. Lord Hope delivered the lead speech with which the other four law lords concurred, subject to their opinions in the appeal brought by the second applicants. He upheld the finding of the Lord Ordinary and the Extra Division that Articles 17 and 53 had no relevance to the first applicant's basic argument that the Protection of Wild Mammals (Scotland) Act was outside the legislative competence of the Scottish Parliament because it was incompatible with the Convention. He also upheld the lower courts' findings that Articles 8–11 and 14 were not engaged. To the extent that it was necessary to consider the justification for the 2002 Act, Lord Hope considered that there was adequate factual information to entitle the Scottish Parliament to conclude that foxhunting inflicted pain on the fox and that it constituted cruelty. The question of necessity was “pre-eminently one for the Parliament”. 30. Section 1 of the 2004 Act provides that a person commits an offence if he hunts a wild mammal with a dog unless his hunting is exempt. Classes of hunting which are exempt are specified in Schedule 1 of the Act. Under section 4, it is a defence for a person charged with an offence under section 1 to show that he reasonably believed that the hunting was exempt. Exempt hunting includes: (i) stalking a wild mammal, or flushing it out of cover, if the conditions in paragraph 1 of the Schedule are satisfied. The conditions include: (a) that the stalking or flushing out is undertaken to prevent or reduce serious damage which the wild mammal would otherwise cause; (b) that it does not involve the use of more than two dogs; nor (c) the use of one dog below ground otherwise than in accordance with paragraph 2 of the Schedule. The conditions in paragraph 2 include that the purpose of the stalking or flushing out is to prevent or reduce serious damage to game or wild birds kept for the purpose of their being shot; and that reasonable steps are taken to shoot the wild mammal dead as soon as possible after it has been flushed out from below ground. Further exemptions, subject to conditions, are made for the hunting of rats and rabbits, the retrieval of hares which have been shot, for falconry, for the recapture or rescue of a wild mammal, and for research and observation of a wild mammal. Section 3 creates offences by a person who knowingly assists hunting which is banned under section 1. Section 11(2) provides that hunting a wild mammal with a dog includes any case where a person engages or participates in the pursuit of a wild mammal and one or more dogs are employed in that pursuit, whoever employs, controls or directs the dogs. Section 5 bans hare coursing, which is defined as “a competition in which dogs are, by the use of live hares, assessed as to skill in hunting hares”. A person guilty of an offence under the 2004 Act is liable on summary conviction to a fine of up to GBP 5,000. Conviction may lead to the forfeiture of any dog, vehicle or other article used for the purpose of prohibited hunting. 31. Section 1 of the 2002 Act makes it a criminal offence deliberately to hunt a wild mammal, for the owner or occupier of his land to permit it to be used for that purpose and for the owner of a dog to permit it to be used for the same. By section 10 rabbits and rodents are excluded from the definition of a wild mammal. Exemptions are made in sections 2 – 5 (subject again to conditions) for stalking and flushing from cover, falconry and shooting, retrieving and locating wild mammals. Section 6 gives the Scottish Ministers the power to specify further “excepted activities”, which will not constitute an offence under section 1. By section 8(1) a person guilty of an offence under the Act is liable on summary conviction to imprisonment for up to 6 months or a fine of up GBP 5,000 or both. 32. The petitioners in this case sought to challenge the 2002 Act by way of judicial review, similarly relying on Articles 8, 11 and 14 of the Convention and Article 1 of Protocol No. 1. They were unsuccessful at first instance before the Lord Ordinary in the Outer House of the Court of Session. They appealed to the Second Division of the Inner House of the Court of Session, which dismissed the appeal on 28 May 2004. The Inner House took note of an expert report submitted by the petitioners, which found that the end to traditional foxhunting would bring the “collapse of an entire social and cultural world” and result in “profound and deeply felt social and cultural impoverishment” in the Scottish Borders. However, Articles 8, 11 and 14 were not engaged. For Article 1 of Protocol No. 1, the Inner House found that the Act did not amount to de facto expropriation of possessions related to hunting (in particular one of the petitioner's hounds) but rather control of the use of property and thus there was no requirement for the Act to provide a scheme of compensation. It was accepted that Article 1 of Protocol No. 1 was engaged to the extent that the Act restricted the use to which the petitioners put their land and hounds. The Inner House also sustained the finding of the Lord Ordinary that one of the petitioner's economic interest in making his livelihood as a self-employed manager of foxhounds was a possession within the meaning of that Article. In doing so, it relied on this Court's rulings in Tre Traktörer AB v. Sweden, 7 July 1989, Series A no. 159; Van Marle and Others v. the Netherlands, 26 June 1986, Series A no. 101 and the Commission's decision in Karni v. Sweden, no. 11540/85, 8 March 1988, Decisions and Reports (DR) 55, p. 157. However, for that livelihood and the other possessions of the petitioners, the Scottish Parliament had struck an appropriate balance: it had conducted extensive inquiries before legislating and had acted within the scope of its discretion in judging that foxhunting should be prohibited.