ON APPEAL FROM QUEENS BENCH DIVISION, ADMINISTRATIVE COURT
Ingrid Simler QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SULLIVAN
LORD JUSTICE BRIGGS
| THE QUEEN
On the application of JL
|- and -
|The Secretary of State for Defence
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Mr B Hooper (instructed by The Treasury Solicitor) for the Respondent
Hearing dates : 11 April 2013
Crown Copyright ©
Lord Justice Briggs :
(1) That the decision was unlawful because of a failure to have regard to considerations of mandatory relevance.
(2) That the decision to enforce the possession order was a disproportionate interference with the claimant's Article 8 rights.
Article 8 – change in the law
"(a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end: McCann v United Kingdom 47 EHRR 913, para 50; Cosic v Croatia 52 EHRR 1098, para 22; Zehentner v Austria 52 EHRR 739, para 59; Paulic v Croatia given 22 October 2009, para 43; and Kay v United Kingdom  HLR 13, paras 73-74. (b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (ie, one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues: Connors v United Kingdom 40 EHRR 189, para 92; McCann v United Kingdom 47 EHRR 913, para 53; Kay v United Kingdom  HLR 13, paras 72-73. (c) Where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if article 8 has been complied with: Zehentner v Austria 52 EHRR 739, para 54. (d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains - for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied. Although it cannot be described as a point of principle, it seems that the European court has also franked the view that it will only be in exceptional cases that article 8 proportionality would even arguably give a right to continued possession where the applicant has no right under domestic law to remain: McCann v United Kingdom 47 EHRR 913, para 54; Kay v United Kingdom, para 73. "
"Unencumbered property rights, even where they are enjoyed by a public body such as a local authority, are of real weight when it comes to proportionality. So, too is the right – indeed the obligation – of a local authority to decide who should occupy its residential property. As Lord Bingham said in Harrow London Borough Council v Qazi  1 AC 983, 997, para 25:
"The administration of public housing under various statutory schemes is entrusted to local housing authorities. It is not for the court to second guess allocation decisions. The Strasbourg authorities have adopted a very pragmatic and realistic approach to the issue of justification."
Therefore, in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way."
"Mrs L has, in recent years, denied access so that D E ("Defence Estates") has been unable to maintain the property which is now believed to be in a very poor state of repair. There are very serious concerns over Health and Safety issues; particularly in regard to electricity and gas. Although Mrs L's solicitor has, in the past, organised the issue of annual test certificates for the gas and electricity meters, MOD representatives have not been allowed access to check them. The latest certificates are outstanding, and there is a risk that MOD could be held legally responsible for H & S shortcomings."
Lord Justice Sullivan:
Lady Justice Arden: