Written and recorded by Dean Kingham, Swain
Hello. I'm Dean, Kingdom of Swain and Co solicitors, and I had the prison or public law on criminal departments. Today I'm going to be talking to you about the practical and rial differences in how you read proportionality in European Union Human rights Onda Common Law Context. Starting with proportionality, it is one of the most important grounds for judicial review. It's being a ground for many years and has evolved from the concept off unreasonableness. It's being developed as a more general principle of law by the judges over the years. The doctrine of proportionality is well established and is a broad concept in European administrative law. On a such there is on into play in common law, EU Law on and Human Rights Act challenges proportionality and unreasonableness a fuse together, providing an adequate rubric for the judicial review off irrationality In administrative law, the principle of proportionality could be said as to be a concept to result in out off Wednesday unreasonableness. This is to say that's the Wen's brew test was developed to review an action which is highly arbitrary on discriminate tree. The judiciary seemed reluctant to enter into the administrative and review its actions and then later, in time, of course, the test of proportionality came up to review in action, which is not proportional to the desire to go to be achieved by that action. So let's get into proportionality. Proportionality is a subject that many people have written about. It's an extensive subject, but currently it's all founded around the Supreme Court case of Bank Mellat versus H M Treasury number two, 2013 U. K. S. C. 39 2014 a C 700 that the general principle of proportionality depends upon an exacting analysis of the factual case advanced in defense off the measure. Therefore, requirements which, although logically separate in practice, overlap because the same facts are likely to be relevant to more than one of them. Let's look up before Factors number one, whether the objective is sufficiently important to justify the limitation of a fundamental rights number. Two. Whether the measure is rationally connected to the objective number free, where for a less intrusive measure could have been used on number four, where for a fair balance has been struck between the rights of the individual on the interests off the community, having regard to the above matters on the severity off the consequences. Proportionality is an area that has been considered by the Supreme Court in an extensive number of cases. Back in 2014 there were two key cases that considered proportionality. They were Kennedy versus the Charity Commission, U. K s C. 2020 15 a c 455 and this concerned a challenge to the refusal off the Charity Commission to provide to a journalist information about its investigation into the jewels galleries. Marium a pill in off Lord Carlile of Very versus Sex estates for the Home Department. That case involved a challenge to the restrictions imposed on an Iranian dissident entering the UK in order to speak to Parliament area in 2015. There were a number of other cases, including K u R K versus sex estate for foreign and common Well for affairs. 2015 U. K. F. C. 69 2016 a C. One free 55 This case was a challenge to decision not to hold a public inquiry into the shootin by the British army of 24 unarmed people in Malaya in 1948. Of course, there is Also the decision in Lumsden are Lumsden versus the Legal Services Ball, 2015 U. K. S C. 41 2016 a c 697 in this case involved a challenge to the quality assurance scheme for advocates appearing in criminal trials on the ground that it was said to breach you regulations, of course. The well known case of fan versus sex. Every state for the Home Department. 2015 UK SC 2015 1 W L R. 1591 And this was a challenge to a decision by the secretary of state to deprive a person of his British citizenship on the ground that he was suspected to be involved in terrorism. What we saw in Kennedy and Pham was a move towards common nor proportionality, and that's important because that was back in 2015. In 2016 we had Yousef versus SS FC 0 2016 UK SC free 2016 a C 1457 which discussed proportionality in relation to fundamental and important individual rights. When we look at the case of murder, M. I. R G A versus SWP Salmon versus Westminster Council 2016 UK SC one that said proportionality exercise not necessarily severally required from every case in which a rights is so. As you can see proportionality, there is a lot of case RL to be considered so far this year. One of the most important cases in respect of proportionality was the case of our hicks versus the Metropolitan Police Commissioner, 20 U. K. S C. Nine, and that's WAAS related to the police in off the royal wedding that a question there waas the balance to be struck because there were a number of protesters. Andi. The issue was whether preventative arrest and detention for a short time was lawful. In this case, it was held to be lawful because the court said there was a need to undertake a balancing exercise to protect individuals from arbitrary detention whilst not making it impractical for the police to perform their duty to maintain public order and protect the lives and property of others. The court said that in keeping a grasp of reality on the practical implications central to the principle of proportionality, which is of course not only embedded in Article five of the EEC HR, but it's also part of the common law pertaining to arrest for breach off the peace Now. In the case of London, there were two basic questions to be asked whether the measures suitable to achieve the objective pursued and whether it could be obtained by less onerous measures. Proportionality need not prescribe any specific level of scrutiny in apply in the case of Lum Lum Stone, we had Justice Mitten in Uber London LTD versus Transport for London, which was heard in March this year, which said there was a requirement for proportionate private hire vehicle operators. Drivers should pass an English language test, but further requirements to maintain round the clock telephone service quashed as there was a less intrusive alternative available. Now looking at K k U, which I referred to earlier. Obviously, as I said, this was a judicial review of the refusal to hold a public inquiry into the killings. The refusal was held me very rational, nor this proportionate, the argument raised. The irrationality should now be replaced by proportionality in domestic judicial review cases not appropriate to rule on the argument about nine Supreme Court judges. Panel proportionality is not a substitution of judicial reviewer's opinion for that primary looking at proportionality under the e c h r. There's no doubt that the domestic courts will apply the bank mail at four part test for proportionality under the Human Rights Act and the E C H R. The application off this test requires the court to make a value judgement. In particular, the court of the fourth stage of that test is striking a balance between one. The importance of the objective pursued and to the value of the rights intruded upon. Nevertheless, the primary decision maker has an area in which its judgment will be respected, depending upon, for example, the nature of the decision. The decision makers expertise on the decision makers, sources of information looking at proportionality under EU law. This is not the same as under the e c h r. I would refer you to the case of Lumsden, which we spoke about earlier common law. Well, we've common law proportionate toe. What if there's no fundamental right? Engage what is there to which proportionality propensities principle can be applied? What balance with the public interest is there to be instruct the British American tobacco case, our bat versus the Secretary of State for Health 2016 e w c a sieve 118 to was her at the back end of 2016. Andi appeals were dismissed from dismissal of claims for judicial review of the standardised packaging of tobacco products Regulations. 2015. This related to the ability of tobacco companies to place Brandon on out of packaging for tobacco put up themselves Limited portion ality challenge. It was said that the regulations would foul to meet their stated objective of improving public health and as such were not suitable. Andi appropriate regulations were not necessary because less extreme measures of equal fish efficiency could have bean adopted and that the regulations fell to strike a fair balance between the public interest on this a backo companies private rights of property. There was common ground in that the regulations have to be justified by reference to the EU principle of proportionality and in the context of the CHR relevant principles as applied to the bank Malek Case, Lumsden and the Scotch Whisky case Regards to public health justification. The assessment of proportionality is an evaluative exercise on the part of the first instance judge. The function on a pier was to review the judge's decision not to make an independent evaluation as an appellant court would be extremely slow to interfere with the conclusions of a first instance judge in relation to an issue of this kind. Unless that's shown to be preceded by an air of rule now thinking about other aspects to do with proportionality, it may also be a statutory concept. For example, Section eight, Subsection two of the Data Protection Act 1998 refers to the disproportionate effort in the supply of copies of personal data pursuant to a subject access requests and S A R. But I would ask you to consider that there was no disproportionality in the case of Dawson Hyphen Day, MMA versus Taylor Weston LLP in 2017 pwc a 74 ever what you can see, the fundamental based on proportionality pertains to bank Mellat number two. Have a look at case. Think about how you can develop that within your own area of law in order to develop proportionality as it's a very helpful doctrine in arguing judicial review. Thank you
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