UK: Human Rights - An Open Door Policy. . .

Last Updated: 17 August 2006
Article by Nicholas Dobson

Helpful hint: if you're planning a spot of battering someone's door down in the early hours of the morning, best make sure it's the right door.

For that's how Merseyside Police and the Government came unstuck in the European Court of Human Rights (ECHR) on 18 July 2006 (see Keegan v The United Kingdom (Application No. 28867/03)).

Following a series of armed robberies the police believed that a suspect lived at the applicants' address. Having obtained a search warrant the police decided to effect forcible entry to those and other premises at 7.00 a.m. on the morning in question. Unfortunately, the suspect was not at the premises. The police apologised, arranged for repairs to the door and then left.

Proceedings brought by the applicants for maliciously procuring a search warrant, unlawful entry and false imprisonment were unsuccessful, both in the County Court and in the Court of Appeal. Although Kennedy LJ found that if proper enquiries had been made and the results properly reported, there would have been no reasonable or probable cause to apply for a search warrant, he held that the requirement of malice was not made out as there was no evidence of any improper motive (incompetence or negligence not being sufficient). In addition, although those responsible for sending the police team on the ground to the address had been mistaken that did not deprive them of legal protection.

Also Ward LJ had indicated in the Court of Appeal that whilst the sanctity of the home was one important public interest, another was the detection of crime and the bringing to justice of those who commit it. He said that:

'. . . These interests are in conflict in a case like this and on the law as it stood when these events occurred, which is before the coming into force of the Human Rights Act 1998, which may be said to have elevated the right to respect for one's home, a finding of malice on the part of the police is the proper balancing safeguard.'

Counsel advised that the prospects of seeking leave to appeal from the House of Lords were poor and consequently advised against it.

The police have statutory power to enter and search any premises for the purposes of arresting a person for an arrestable offence (section 17 of the Police and Criminal Evidence Act 1984 - PACE). Under section 15 of PACE the police may also (subject to various conditions) apply to the magistrates' court for a warrant.

The Applicants complained of an alleged violation of Article 8 of the European Convention on Human Rights (right to respect for private and family life) and Article 13 of the Convention (effective remedy).

Article 8 provides (amongst other things) as follows:

'1. Everyone has the right to respect for. . .his home. . .

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society . . . for the prevention of disorder or crime. . .'

The ECHR noted that whilst the forcible police entry interfered with the Applicants' right to respect for their home under Article 8(1), it was nevertheless in accordance with domestic law and in pursuance of a legitimate aim, namely the prevention of disorder and crime. However, more difficult was whether the interference to achieve the legitimate aim was 'necessary in a democratic society'.

The Court's settled caselaw indicates that the notion of necessity implies that interference with the right corresponds to a 'pressing social need' and in particular that that is proportionate to the legitimate aim pursued. Consequently, the Court must ascertain whether in the circumstances of the case the entry of the Applicants' home struck a fair balance between the relevant interests i.e. on the one hand the Applicants' right to respect for their home and on the other the prevention of disorder and crime.

This is where Merseyside Police came unstuck. For whilst contracting states are given a certain margin of appreciation, the exceptions in Article 8(2) are to be interpreted narrowly and the need for measures in a given case must be convincingly established. In particular, the Court will assess whether the reasons adduced to justify the measures in question were relevant and sufficient and whether there were adequate and effective safeguards against abuse.

The ECHR noted the comments of the County Court judge (amongst other things) that it is difficult to conceive that police enquiries to verify the residents of the address had not been made and that if such enquiries had been properly made (via the local authority or utility companies) they would not have revealed the change in occupation. In the circumstances, whilst there were relevant reasons for the police action these were based on a misconception which could and should have been avoided with proper precautions. Consequently the reasons could not be regarded as sufficient.

Whilst the Police did not act maliciously, this was not decisive under the Convention which, as the Court pointed out, '. . .is geared to protecting against abuse of power, however motivated or caused'. In the circumstances, the police action taken without 'reasonable and available precautions' was not proportionate.

Article 13 of the Convention provides that 'Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity'. In the instant case the ECHR noted that in the UK Courts, damages were available only where malice could be proved. The Courts were consequently unable to examine issues of proportionality or reasonableness and (as various UK courts acknowledged) the balance was set in favour of the police in such cases. The ECHR therefore found a violation of Article 13 since the Applicants had no available means of obtaining redress for the interference with their Article 8 rights.

Whilst this case does provide further useful insight into the approach of the ECHR on the issue of proportionality, the domestic courts may well have decided the case differently had the facts occurred after the coming into force of the Human Rights Act on 2 October 2000. For as Ward LJ had pointed out, the 1998 Act 'may be said to have elevated the right to respect for one's home'. So if you're planning an open-door policy, the approach of the Police in this case is not perhaps one to follow.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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