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McCANN v. THE UNITED KINGDOM - 19009/04 [2008] ECHR 385 (13 May 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/385.html
Cite as:
[2008] 28 EG 114,
[2009] L & TR 4,
[2008] ECHR 385,
(2008) 47 EHRR 40,
[2008] Fam Law 729,
[2008] HLR 40,
[2008] 2 FLR 899,
[2008] 2 EGLR 45,
[2008] 20 EG 136,
[2008] BLGR 474,
[2008] ECHR 19009/04,
[2009] 1 FCR 390
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FOURTH
SECTION
CASE OF
McCANN v. THE UNITED KINGDOM
(Application
no. 19009/04)
JUDGMENT
STRASBOURG
13
May 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of McCann v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech
Garlicki,
President,
Nicolas
Bratza,
Giovanni
Bonello,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä, judges
and Lawrence Early, Section
Registrar,
Having
deliberated in private on 22 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 19009/04) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a British
national, Mr Gerrard McCann (“the applicant”), on 20 May
2004.
The
applicant, who had been granted legal aid, was represented by
Mr Gurbinder Gill, a lawyer practising in Solihull.
The
applicant complained that eviction proceedings brought against him by
the local authority violated Articles 6, 8 and 14 of the Convention.
The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the Chamber
that would consider the case (Article 27 § 1 of the Convention)
was constituted as provided in Rule 26 § 1.
On
10 May 2005 the Chamber decided that the admissibility and merits of
the case should be considered jointly (Article 29 § 3 of the
Convention and Rule 54A). The Chamber having decided, after
consulting the parties, that no hearing on the merits was required
(Rule 59 § 3 in fine), the parties replied in writing to
each other's observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1968 and lives in Birmingham.
The facts of the case as submitted by the parties are as follows.
In
July 1998 the applicant and his wife became joint tenants of a
three-bedroom family house owned by Birmingham City Council (“the
local authority”). They were also secure tenants under the
provisions of the Housing Act 1985 (see paragraph 20 below).
The
marriage broke down early in 2001 and the applicant's wife moved out
of the house with the two children. On 5 April 2001, following a
contested hearing at which the applicant was not represented, the
court made a three-month non-molestation order and an ouster order
requiring the applicant to leave the house, which he did. Mrs McCann
and the children moved back into the house, but moved out again when
on 14 April the applicant turned up at the house, used a crowbar to
force entry and allegedly assaulted Mrs McCann and her friend.
Criminal proceedings were begun against the applicant following this
incident, but resulted in an acquittal when no evidence was put
forward.
On
18 April 2001, Mrs McCann submitted to the local authority an
application to be re-housed on grounds of domestic violence. On
8 August 2001 she returned the keys to the local authority with
a note saying that she was giving up the tenancy. She and the
children moved into another council house which had been allocated to
them in accordance with the local authority's domestic violence
policy. The local authority visited the house and found that most of
the fixtures had been removed so that in excess of GBP 15,000 would
be required to make it habitable. Thereafter, as far as the local
authority was concerned, the property was uninhabited.
In
November 2001 the applicant returned to the house and did a
considerable amount of work to renovate it. His relationship with
Mrs McCann improved, and she supported his application for an
exchange of accommodation with another local authority tenant, since
the three-bedroom house was too big for him on his own, but he still
required a suitable home in the area to permit contact visits with
his children.
That
application, dated 4 January 2002, was completed at the local
authority housing office. On the same day, a housing officer, having
realised that the property was not in fact empty, and having taken
legal advice, visited Mrs McCann and asked her to close the tenancy
by signing a notice to quit. The County Court judge who heard the
local authority's claim for possession found as a fact that Mrs
McCann was not advised and had no understanding that the notice to
quit would have the effect of extinguishing the applicant's right to
live in the house or exchange it for another local authority property
(see paragraph 19 below). Approximately a week later Mrs McCann wrote
to the local authority seeking to withdraw the notice to quit, but it
nonetheless remained effective.
The
applicant was informed that the tenancy had come to an end, and he
was given notice to vacate. On 11 June 2002 the local authority's
Allocations Officer Review Panel decided, inter alia, that in
accordance with the domestic violence policy, the applicant would not
be granted the right to accede to the former tenancy of the house and
that, in any event, the applicant, who had no dependants living with
him, would not qualify for a dwelling originally allocated to a
qualifying family which had been re-housed.
On
11 October 2002 the local authority brought possession proceedings
against the applicant in the County Court, which he defended on the
basis that it was contrary to his right to respect for his home under
Article 8 of the Convention to be evicted on the basis of the notice
to quit.
In
his judgment of 15 April 2003, the County Court judge held that
under the common law and Housing Acts (see paragraphs 19-20 below),
the applicant had no defence to the authority's claim for possession.
Under Article 8, however, he cited previous case-law which held that
in such cases, generally, the interest of the local authority as
landlord and of other persons in need of social housing had been
taken into account by the applicable common law and legislation, and
that, provided that the local authority had acted lawfully, it was
not open to a court to put aside a claim for possession, except in
exceptional circumstances where it appeared that the former tenant's
Article 8 rights had not been properly considered. He noted the
circumstances in which Mrs McCann had signed the notice to quit and
observed that, if she had not been induced to sign it, the local
authority would have had to apply for a possession order under
section 84 of the Housing Act 1985 (see paragraph 20 below). It would
then have been open to the applicant to seek to persuade the court
that it would not be reasonable to grant the order; he and Mrs McCann
could have given evidence regarding the alleged domestic violence;
and he could in addition have raised such issues as his own housing
needs and the need to provide accommodation for the children when
they visited. In the circumstances, the judge held that the local
authority had not acted as required by Article 8 § 2 of the
Convention and he dismissed the claim for possession.
The
authority's appeal to the Court of Appeal was adjourned pending the
outcome of proceedings before the House of Lords in Qazi v. London
Borough of Harrow ([2003] UKHL 43: “Qazi”, see
paragraphs 22-25 below). On 9 December 2003 Lord
Justice Mummery gave the judgment of the Court of Appeal in the
present case, holding as follows:
“ ... Article 8 is not available as a defence to
the possession proceedings, even though the premises in question were
the 'home' of the occupant for the purposes of the article. The
council acted lawfully and within its powers in obtaining the notice
to quit, which had the effect of terminating the secure tenancy.
There was no dispute but that the tenancy had been brought to an end
by [the applicant's wife's] notice to quit. Under ordinary domestic
law the council had an unqualified right to immediate possession on
proof that the tenancy of the premises had been brought to an end.
The statutory procedure in Section 82 of the 1985 Act, which is
available to a local authority landlord for terminating a secure
tenancy, does not apply to a case where the secure tenancy has been
terminated by the tenant's notice to quit. That notice to quit was
effective, even though the notice was signed without appreciating the
consequences for the occupier of the premises.
This is not a 'wholly exceptional' case where, for
example, something has happened since the service of the notice to
quit, which has fundamentally altered the rights and wrongs of the
proposed eviction and the council might be required to justify its
claim to override the Article 8 right (see Qazi at paragraph
79 [paragraph 24 below])”.
The
applicant applied for judicial review of the local authority's
decision of 4 January 2002 to procure a notice to quit from his wife,
and of its decision of 11 June 2002 to issue possession proceedings.
The application was refused on 23 September 2004. The judge found,
inter alia, that the local authority had acted within its
powers in seeking, through the wife's notice to quit, to formalise
the situation as regards the tenancy and that its decision to apply
its domestic violence policy where domestic violence had been
established by the existence of a non-molestation injunction and
ouster clause was neither unlawful nor outside the range of decisions
properly open to the authority in all the circumstances. He
concluded:
“I agree ... that the Court of Appeal effectively
decided the relevant issues between Mr McCann and the Council and
that this application is an attempt to resurrect them a second time.
The Council is entitled to possession and this application for
judicial review fails. ...
As for the generality, whether or not a decision can be
challenged as a matter of law does not mean that it is not
appropriate for a public authority to be as open as it can be. There
is no reason why the Council's policy should not be absolutely
explicit, spelling out that the consequence of an application for
re-housing will be a requirement to give notice to quit of the
existing tenancy which will affect the rights of the remaining tenant
or occupier and thereafter providing notice to that person. In that
way, clarity will prevail and some of the concerns that have been
expressed in this case avoided.”
Permission
to appeal to the Court of Appeal was refused on 9 December 2004.
The
applicant was evicted from the house on 22 March 2005.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Notice to quit under common law
In
common law, where a valid notice to quit is given by one joint
tenant, it has the effect of bringing the joint tenancy to an end,
whether or not the other joint tenant knew of or consented to the
service of the notice to quit (Hammersmith and Fulham London
Borough Council v. Monk [1992] 1 All ER 1). Once a tenancy has
been validly brought to an end, a former tenant remaining in the
property is in law a trespasser and the landlord has a right to
immediate possession.
B. Security of tenure under the Housing Act 1985
By
section 82 of the Housing Act 1985, a secure tenant of a local
authority or other public authority, such as the applicant, has
security of tenure. Under section 84(1) of the Act, a court shall not
make an order for possession of a dwelling house let under a secure
tenancy except on one or more of the grounds set out in Schedule 2 to
the Act. Ground 2(a) of Schedule 2 gives a ground of possession where
a couple live in a dwelling-house, one or both is a tenant, one
partner has left because of violence or threats of violence by the
other, and the court is satisfied that that partner who has left is
unlikely to return. Section 84(2) provides that the court shall not
make an order for possession on one of these grounds “unless it
considers it reasonable to make an order”.
C. The local authority's domestic violence housing
policy
According
to Birmingham City Council's Allocations Policy Manual
(§
30.8):
“1. Where a relationship has broken down the
tenant who is leaving the property must be asked to sign a
relinquishing form. This has the effect of closing the 'whole'
tenancy.
2. If the property remains suitable for the family left,
[a new] tenancy can be granted.
3. If the property is not suitable (eg. too large), the
tenant should be offered alternative accommodation ...
However,
where there has been domestic violence the Allocations Policy
provides (§ 3.7.1):
“Domestic violence is included in the Department's
revised Conditions of Tenancy as a breach of the Tenancy agreement.
Action will be taken [against those] who have been found to have
subjected another person to domestic violence. This could include
perpetrators losing their home or being classed as intentionally
homeless.”
It
would be open to a person who has been made homeless following an
allegation of domestic violence to challenge the truth of the
allegation and claim that he has been made unintentionally homeless
and that the local authority have a statutory duty to re-house him.
D. The House of Lords' judgment in Qazi
Qazi
v. London Borough of Harrow ([2003] UKHL 43 similarly concerned
the making of a possession order in respect of a council house held
under a joint tenancy of a husband and wife. The marriage broke down
and the joint tenancy came to an end when Mrs Qazi served a notice to
quit. Mr Qazi was refused a sole tenancy by the local authority, but
he nonetheless remained in occupation with his new family, and sought
to resist possession proceedings on the ground that they constituted
an interference with the right to respect for his home under Article
8 of the Convention.
The
House of Lords were unanimous in holding that, despite the fact that
the tenancy had come to an end, the property continued to be Mr
Qazi's home and Article 8 was therefore engaged. However, the
majority (Lords Hope of Craighead, Millett and Scott of Foscote) held
that Article 8 could not be relied upon to defeat the local
authority's proprietary or contractual rights to possession. Since
the local authority had an unqualified right to immediate possession,
there was no infringement of Mr Qazi's right to respect for his home
under Article 8 § 1 and so no issue arose under Article 8 §
2 as to justification. Alternatively, the effect of the authority's
proprietary or contractual rights was that any assessment under
Article 8 § 2 would inevitably be determined in the local
authority's favour. The majority variously referred to a number of
decisions of the Commission in which similar complaints, regarding
the eviction of a former joint tenant from local authority property
after the joint tenancy had come to an end, had been declared
manifestly ill-founded (S. v. the United Kingdom, no.
11716/85, Commission decision of 14 May 1986, Decisions and Reports
(DR) 47, p. 274; D.P. v. the United Kingdom, no. 11949/86,
Commission decision of 1 December 1986, DR 51, p. 195; Ure v.
the United Kingdom, no. 28027/95, Commission decision of 27
November 1996; Wood v. the United Kingdom, no. 32540/96,
Commission decision of 2 July 1997).
Lord
Hope, having held that Article 8 was applicable, continued:
“... in my opinion it does not follow that, on the
facts of this case, there is an issue which must be decided within
the domestic legal order by remitting the question whether any
interference is permitted by Article 8 § 2 for decision by the
county court. ...
I do not say that the right to respect for the home is
irrelevant. But I consider that such interference with it as flows
from the application of the law which enables the public authority
landlord to exercise its unqualified right to recover possession,
following service of a notice to quit which has terminated the
tenancy, with a view to making the premises available for letting to
others on its housing list, does not violate the essence of the right
to respect for the home under Article 8 § 1. That is a
conclusion which can be applied now to all cases of this type
generally. ... It follows that the question whether any interference
is permitted by Article 8 § 2 does not require, in this case, to
be considered by the county court.”
Lord
Millett similarly held that:
“... In my opinion Article 8 is not ordinarily
infringed by enforcing the terms on which the applicant occupies
premises as his home. Article 8 § 1 does not give a right to a
home, but only to 'respect' for the home.”
As
regards the balancing exercise envisaged by Article 8 § 2 he
stated:
“... no such balancing exercise need be conducted
when its outcome is a foregone conclusion. In the present case ...
the local authority had an immediate right to possession. The
premises were Mr Qazi's home, and evicting him would obviously amount
to an interference with his enjoyment of the premises as his home.
But his right to occupy them as such was circumscribed by the terms
of his tenancy and had come to an end. Eviction was plainly necessary
to protect the rights of the local authority as landowner. Its
obligation to 'respect' for Mr Qazi's home was not infringed by its
requirement that he vacate the premises at the expiry of the period
during which it had agreed that he might occupy them. There was
simply no balance to be struck. ...”
Lord
Scott concurred with Lords Hope and Millett, although on somewhat
different grounds:
“In my opinion, the Court of Appeal, having
correctly held that Mr Qazi had an Article 8 'home', should have held
that his rights under Article 8 could not prevail against the
council's admitted and undoubted right to possession under the
ordinary housing law. I would, for my part, have said that Article 8
was not, in these circumstances, applicable. But it could also be
said that a possession order was 'in accordance with the law' and was
necessary in order to protect and give effect to the council's right
to possession. ... But it comes to the same thing. Article 8 cannot
be raised to defeat contractual and proprietary rights to
possession.”
As
to the question of remedies in exceptional cases, Lord Hope referred
(in paragraph 79 of the judgment) to Sheffield City Council v.
Smart [2002] EWCA Civ 4, where the Court of Appeal had held, in a
case where a non-secure council tenant was evicted following nuisance
proceedings, that a challenge under Article 8 of the Convention to
the local authority's decision to serve notice to quit could be made
by judicial review within the appropriate time limits. Lord Hope
continued by observing that the Court of Appeal in Smart had
further held:
“that in the rare situation where something wholly
exceptional happened after service of the notice to quit which
fundamentally altered the rights and wrongs of the proposed eviction
the judge in the county court who was hearing the claim for
possession might be obliged to address it in deciding whether the
making of a possession order could be justified ... I wish to reserve
my opinion as to whether it would be open to the tenant, in a wholly
exceptional case, to raise these issues in the county court where
proceedings for possession were being taken following the service of
the notice to quit by the housing authority, bearing in mind as Lord
Millett points out that its decision to serve the notice to quit
would be judicially reviewable in the High Court so long as the
application was made within the relevant time limit. The situation in
the present case is different, as it was a notice to quit served by
one of the joint tenants that terminated the tenancy”.
Lord
Millett also stated:
“In the exceptional case where the applicant
believes that the local authority is acting unfairly or from improper
or ulterior motives, he can apply to the High Court for judicial
review. The availability of this remedy, coupled with the fact that
an occupier cannot be evicted without a court order, so that the
court can consider whether the claimant is entitled as of right to
possession, is sufficient to supply the necessary and appropriate
degree of respect for the applicant's home.”
The
dissenting minority (Lords Bingham of Cornhill and Steyn) held that
where there was a proposed interference with a person's right to
respect for his home, the question of justification, if raised, did
fall to be considered and should, in the instant case, be remitted to
the County Court. Both cited with approval the following extract from
the judgment of the Court of Appeal in Sheffield City Council v.
Smart (cited in paragraph 24 above):
“26. ... 'Home' is an autonomous concept for the
purpose of ECHR, and does not depend on any legal status as owner.
Thus in these cases, the premises in Sheffield and Sunderland were
without question the women's homes. Since the effect of the
possession orders would be to throw them out, I think it inescapable
that those orders amounted to an interference with the appellants'
right of respect of their homes. I have said that the case is all
about Article 8; more precisely, it is all about Article 8(2).
27. Before proceeding to the issues arising under
Article 8(2), I should make it clear that I entertain what is perhaps
a deeper reason for my view that the case cannot be concluded by a
judgment that there is no violation of Article 8(1). It concerns the
relationship between the two paragraphs of Article 8. I have held
that eviction of these appellants would constitute a prima facie
violation of their right to respect for their homes. But this
conclusion is not simply an instance of that everyday judicial
process, the application of a statute's correct construction (here,
Article 8(1)) to a particular set of facts. Rather it has a purposive
quality. The court has to arrive at a judicial choice between two
possibilities, a choice which transcends the business of finding out
what the legislation's words mean. The first choice ... would entail
a judgment that the Convention requirement was met at the Article
8(1) stage ... The second choice (accepting a prima facie violation
of Article 8(1)), which I prefer, entails a judgment that the more
rigorous and specific standards set out in Article 8(2) have to be
met if the court is to hold that the evictions are compatible with
the appellants' Convention rights. The Convention is, as it were,
much more remotely engaged in the fabric of our domestic law if the
first, rather than the second, choice is taken. Part of the court's
task is to decide how close that engagement should be in the context
in hand. Thus I do not eschew the first choice merely because I take
the view that the second more naturally reflects the ordinary sense
of the words used in Article 8(1). I consider as a matter of
substance that the vindication and fulfilment of the Convention
rights, for which purpose [the Human Rights Act 1998] was enacted,
require that the domestic law procedures involved in these appeals
should be subjected to scrutiny for conformity with the Article 8(2)
standards. Such a process is demanded by the fullness of our
municipal law of human rights.”
Lord
Bingham nonetheless emphasised that the administration of public
housing under various statutory schemes was properly entrusted to
local housing authorities and that the occasions on which a court
would be justified in declining a possession order would be highly
exceptional. He concluded:
“If (contrary to the ruling of the majority of the
House) effect were to be given to my opinion, I am confident that the
housing authorities acting in good faith in implementation of schemes
prescribed by statute and administered by them need apprehend no
significant increase in their litigious burden”.
E. The House of Lords' judgment in Kay
In
Kay v. Lambeth Borough Council; Price v. Leeds County Council,
8 March 2006, [2006] UKHL 10, the House of Lords constituted
itself as a seven judge Committee (rather than five judges as usual)
in order to revisit its decision in Qazi in the light of the
Court's judgments in Connors v. the United Kingdom,
no. 66746/01, §§ 81–84, 27 May 2004 and
Blečič v. Croatia, no. 59532/00, 29 July 2004 (the
latter judgment was subsequently referred to the Grand Chamber which
found, on 8 March 2006, that because domestic remedies had not been
exhausted, it was unable to take cognisance of the merits of the
case). The Lords were unanimous in limiting their consideration to
cases were the landlord was a public authority.
The
majority (Lords Hope, Scott, Brown and Baroness Hale) held that the
judgment in Connors was not incompatible with the view of the
majority in Qazi that there was no need for a review of the
issues raised by Article 8 § 2 to be conducted by the County
Court if the case was of a type where the law itself provided the
answer, as in that situation a merits review would be a pointless
exercise. In such a case an Article 8 defence, if raised, should
simply be struck out. However, in the light of the judgments in
Connors and Blečič it was necessary to
emphasise that a person evicted might have a defence to possession
proceedings in exceptional cases, namely (1) where he challenged the
domestic law as itself being incompatible with Article 8 (as in
Connors) or (2) he challenged the action of the public
authority landlord on public law grounds, on the basis that the
authority's actions constituted an abuse of power.
The
minority (Lords Bingham, Nicholls and Walker) held that a defendant
to possession proceedings brought by public authorities should be
permitted in principle to raise an Article 8 defence during the
County Court possession proceedings. Lord Bingham expressed it as
follows:
“I do not accept, as the appellants argued, that
the public authority must from the outset plead and prove that the
possession order sought is justified. That would, in the overwhelming
majority of cases, be burdensome and futile. It is enough for the
public authority to assert its claim in accordance with domestic
property law. If the occupier wishes to raise an Article 8 defence to
prevent or defer the making of a possession order it is for him to do
so and the public authority must rebut the claim if, and to the
extent that, it is called upon to do so. In the overwhelming majority
of cases this will be in no way burdensome. In rare and exceptional
cases it will not be futile.”
THE LAW
I. ADMISSIBILITY OF THE COMPLAINTS
A. Article 6 § 1 of the Convention
The
applicant alleged a violation of Article 6 § 1 of the
Convention, claiming that the local authority was not an independent
and impartial tribunal when it brought about the termination of the
tenancy to the property.
Article
6 § 1 provides as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law.”
This
provision ensures procedural guarantees in the determination of civil
rights and obligations. In the present case, the “rights and
obligations” were those arising out of the tenancy which the
applicant and his wife had with the local authority. The tenancy was
terminated by the applicant's wife's notice to quit of 4 January
2002. The determination of the civil rights and obligations, however,
took place before the domestic courts – the Birmingham County
Court, which gave judgment on 15 April 2003, and the Court of Appeal,
which gave judgment on 9 December 2003. Any complaints concerning the
fairness of the proceedings must therefore relate to the proceedings
before those courts. The applicant makes no submissions as to the
fairness of the proceedings before the courts, and does not submit
that anything outside the proceedings as such could have had an
impact on them.
It
follows that this part of the application is manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention, and must
be rejected pursuant to Article 35 § 4.
B. Article 8 of the Convention
The
applicant also alleged a violation of Article 8 of the Convention,
contending that because of the way in which the council procured the
notice to quit in the case, and because the resultant proceedings
were limited to bare property law issues, his right to respect for
his home was not observed.
Article
8 of the Convention provides, so far as relevant, as follows:
“1. Everyone has the right to respect
for his private ... life, 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 in
the interests of ... the economic well-being of the country, for the
prevention of disorder or crime, ... or for the protection of the
rights and freedoms of others.”
The
Court considers that this part of the application raises questions of
law which are sufficiently serious that their determination should
depend on an examination of the merits. No other ground for declaring
it inadmissible has been established. The application must therefore
be declared admissible. Pursuant to Article 29 § 3 of the
Convention, the Court will consider the merits of this complaint
below.
C. Article 14 of the Convention taken in conjunction
with Article 8
Finally,
the applicant, comparing his position with that of spouses of tenants
who leave premises because of a relationship breakdown where there is
no allegation of domestic violence, alleged a violation of Article 14
of the Convention in connection with Article 8 because the local
authority has different policies for the two categories. Article 14
provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
The
Court notes that the applicant did not raise the issue of Article 14
in any of the domestic proceedings, and has failed otherwise to
challenge the different policies before the domestic courts. There is
thus a real question as to whether the applicant has exhausted
domestic remedies, as required by Article 35 of the Convention.
In
any event, cases involving domestic violence are not the same as
cases which do not involve domestic violence, such that different
treatment of them cannot, as such, be discriminatory for the purposes
of Article 14 of the Convention.
It
follows that this part of the application is manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention, and must
be rejected pursuant to Article 35 § 4.
II. THE MERITS OF THE COMPLAINT UNDER ARTICLE 8
A. The parties' submissions
The
parties were agreed that the right to respect for the home contained
in Article 8 of the Convention was engaged on the facts of the
present case. They disagreed, however, as to whether the impugned
measure was “necessary in a democratic society”.
1. The Government
The
Government contended that any interference with the applicant's
rights under Article 8 § 1 was justified within the meaning of
Article 8 § 2. The local authority's decisions to procure a
notice to quit from his wife and subsequently to commence possession
proceedings were taken in accordance with the law and pursued a
number of legitimate aims, namely, (a) the protection of the rights
of the authority as owner of the property with responsibility for the
management of its social housing stock; (b) the protection of the
rights and freedoms of others on the authority's waiting list to be
provided with housing out of the authority's stock of homes to meet
their needs; and (c) the promotion of the economic well-being of the
country. Furthermore, given that it was necessary in a democracy to
have in place clear and certain rules governing property rights, and
in view of the fact that under ordinary property law the authority
had an absolute right to recover the property in question, the
Government submitted that the interference which arose by virtue of
the recognition and implementation of those rights by the courts was
“necessary in a democratic society” and proportionate to
the legitimate aim pursued.
According
to the Government, the present case was distinguishable from Connors
v. the United Kingdom, (no. 66746/01, §§
81–84, 27 May 2004: see further paragraph 49 below), where
three key features had led the Court to find a violation of Article
8: first, the vulnerable position of gypsies as a minority, which
imposed a positive obligation on the State to facilitate their way of
life; secondly, the absence of procedural protection, which permitted
a local authority to remove gypsies from an authorised site without
any scrutiny by the courts; and, thirdly, the fact that the domestic
law discriminated unjustifiably between gypsies who resided on
private sites and those who resided on local authority sites. In
contrast to the position in Connors, there was no suggestion
in the present case that the domestic law of landlord and tenant was
itself incompatible with Article 8.
Since,
in asking Mrs McCann to sign a notice to quit, the local authority
had merely been seeking to regularise the situation which she had
created by leaving the house and applying for alternative
accommodation, it had been appropriate to ask her to sign the notice
and there had been no obligation fully to explain to her the
implications. In circumstances where the relationship between joint
tenants had broken down, it was the local authority's policy to
obtain a relinquishing form from the departing tenant (see paragraph
21 above). This policy was eminently sensible, since it permitted the
local authority landlord to regain control of its property and thus
to manage scarce housing resources effectively. The procedural
protection against the termination of a secure tenancy contained in
sections 82-84 of the 1985 Act (see paragraph 20 above) were
applicable only in circumstances where the landlord was seeking to
terminate the tenancy. In the present case, the joint tenancy was
brought to an end by the applicant's wife serving notice to quit.
Given
that the applicant's central allegation was that the local authority
had acted improperly in obtaining the notice to quit from Mrs McCann,
judicial review provided an appropriate and adequate remedy, to which
the applicant had had access. Moreover, it was now clear from the
House of Lords' decision in Kay (see paragraphs 26-28 above)
that an individual in the applicant's position would not need to
commence proceedings by way of judicial review in order to raise this
kind of public law challenge; such objections could now be raised by
way of collateral challenge to possession proceedings in the County
Court. The clarification in Kay served to underline the extent
of the procedural protection provided to individuals in the
applicant's position. In this respect the present case was clearly
distinguishable from Connors, where the applicant's
contentions (that he was not responsible for the alleged anti-social
behaviour) did not relate to abuse of power by the local authority
and where he was refused leave to apply for judicial review.
2. The applicant
The
applicant maintained that the manner in which the notice to quit was
obtained rendered his eviction an unjustified violation of his right
to respect for his home. Article 8 was engaged because Mrs McCann
would not have served the notice to quit except at the request of the
local authority housing officer, and the local authority knew that
the notice would have the effect of bringing the joint tenancy to an
end without any opportunity for the applicant effectively to
challenge the loss of his home. Moreover, the termination of the
tenancy affected the applicant's relationship with his children who
stayed with him three nights a week. In deciding to ask Mrs McCann
for the notice to quit, the local authority gave no consideration
whatsoever to the applicant's rights under Article 8.
The
only time any court had scrutinised the applicable Convention
considerations, it had found that the applicant's right to respect
for his home had not been sufficiently respected. However, this
decision by the County Court was overturned on appeal, in the light
of the House of Lords' judgment in Qazi, and the applicant's
subsequent request for judicial review was rejected because the Court
of Appeal had previously determined the issue.
In
proceedings under sections 82-84 of the Housing Act 1985 (see
paragraphs 20 above), the County Court must examine and determine all
issues of fact and can grant possession to the landlord only where it
“considers it reasonable to do so”. The local authority's
actions in obtaining the wife's notice to quit had, in effect,
by-passed this statutory scheme, which Parliament had created to
protect tenants such as the applicant. While accepting that it would
be rare for possession to be refused to the landlord on Article 8
grounds, the applicant contended that to exclude the possibility of
individual circumstances rendering an eviction disproportionate was
to deprive the Convention of any effect.
B. The Court's assessment
The
Court has noted on a number of occasions that whether a property is
to be classified as a “home” is a question of fact and
does not depend on the lawfulness of the occupation under domestic
law (see, for example, Buckley v. the United Kingdom,
judgment of 25 September 1996, Reports of Judgments and
Decisions 1996 IV, § 54, in which the applicant had
lived on her own land without planning permission for a period of
some eight years). In the present case, it was found by the national
courts and accepted by the parties that the local authority house
which the applicant formerly occupied as a joint tenant with his wife
and where he lived on his own from November 2001 continued to be his
“home”, within the meaning of Article 8 § 1,
despite the fact that following service by the wife of notice to quit
he had no right under domestic law to continue in occupation. The
Court agrees with this analysis.
It
was further agreed that the effect of the notice to quit which was
served by the applicant's wife on the local authority, together with
the possession proceedings which the local authority brought, was to
interfere with the applicant's right to respect for his home.
The
Court considers that this interference was in accordance with the law
and pursued the legitimate aim of protecting the rights and freedoms
of others in two respects. First, it protected the local authority's
right to regain possession of the property as against an individual
who had no contractual or other right to be there. The domestic
courts laid considerable emphasis on this aspect, which applies
equally to all landlords who are trying to re-possess property.
However, the interference also pursued the aim of ensuring that the
statutory scheme for housing provision was properly applied. The
“others” in such a case are the intended beneficiaries of
the complex arrangements set up by, amongst others, the Housing Acts.
The Court accepts that it is only by limiting the protection of the
Acts to the categories to which it applies that the policy underlying
the Acts can sensibly be implemented.
The
central question in this case is, therefore, whether the interference
was proportionate to the aim pursued and thus “necessary in a
democratic society”. It must be recalled that this
requirement under paragraph 2 of Article 8 raises a question of
procedure as well as one of substance. The Court set out the relevant
principles in assessing the necessity of an interference with the
right to “home” by the application of summary possession
proceedings in the case of Connors v. the United Kingdom,
(no. 66746/01, §§ 81–84, 27 May 2004),
which was decided subsequent to the House of Lords' judgment in Qazi
(see paragraphs 22-25 above), but before its decision in Kay
(see paragraphs 26-28 above), as follows:
“81. An interference will be considered 'necessary
in a democratic society' for a legitimate aim if it answers a
'pressing social need' and, in particular, if it is proportionate to
the legitimate aim pursued. While it is for the national authorities
to make the initial assessment of necessity, the final evaluation as
to whether the reasons cited for the interference are relevant and
sufficient remains subject to review by the Court for conformity with
the requirements of the Convention ...
82. In this regard, a margin of appreciation must,
inevitably, be left to the national authorities, who by reason of
their direct and continuous contact with the vital forces of their
countries are in principle better placed than an international court
to evaluate local needs and conditions. This margin will vary
according to the nature of the Convention right in issue, its
importance for the individual and the nature of the activities
restricted, as well as the nature of the aim pursued by the
restrictions. The margin will tend to be narrower where the right at
stake is crucial to the individual's effective enjoyment of intimate
or key rights ... . On the other hand, in spheres involving the
application of social or economic policies, there is authority that
the margin of appreciation is wide, as in the planning context where
the Court has found that '[i]n so far as the exercise of discretion
involving a multitude of local factors is inherent in the choice and
implementation of planning policies, the national authorities in
principle enjoy a wide margin of appreciation' ... . The Court has
also stated that in spheres such as housing, which play a central
role in the welfare and economic policies of modern societies, it
will respect the legislature's judgment as to what is in the general
interest unless that judgment is manifestly without reasonable
foundation ... . It may be noted however that this was in the context
of Article 1 of Protocol No. 1, not Article 8 which concerns rights
of central importance to the individual's identity,
self-determination, physical and moral integrity, maintenance of
relationships with others and a settled and secure place in the
community ... . Where general social and economic policy
considerations have arisen in the context of Article 8 itself, the
scope of the margin of appreciation depends on the context of the
case, with particular significance attaching to the extent of the
intrusion into the personal sphere of the applicant ... .
83. The procedural safeguards available to the
individual will be especially material in determining whether the
respondent State has, when fixing the regulatory framework, remained
within its margin of appreciation. In particular, the Court must
examine whether the decision-making process leading to measures of
interference was fair and such as to afford due respect to the
interests safeguarded to the individual by Article 8 ...”
The
Court is unable to accept the Government's argument that the
reasoning in Connors was to be confined only to cases
involving the eviction of gypsies or cases where the applicant sought
to challenge the law itself rather than its application in his
particular case. The loss of one's home is a most extreme
form of interference with the right to respect for the home. Any
person at risk of an interference of this magnitude should in
principle be able to have the proportionality of the measure
determined by an independent tribunal in the light of the relevant
principles under Article 8 of the Convention, notwithstanding that,
under domestic law, his right of occupation has come to an end.
The
Court notes that the legislature in the United Kingdom has set up,
through the Housing Acts inter alia, a complex system for the
allocation of public housing, about which the applicant does not
complain. That system includes, in section 84 of the Housing Act 1985
(see paragraph 20 above), provisions to protect secure tenants of
public authority landlords, such as the applicant during the course
of the joint tenancy. In accordance with these provisions, a court
cannot grant a public authority landlord possession of a property
occupied by a secure tenant except on one of the specified statutory
grounds and where it is in addition satisfied that it is reasonable
to make such an order. Had the local authority sought to evict the
applicant in accordance with this statutory scheme, it would have
been open to the applicant to ask the court to examine, for example,
whether his wife had really left the family home because of domestic
violence and whether in his personal circumstances, including his
need to provide accommodation for his children during overnight
visits several times a week, it was reasonable to grant the
possession order.
In
the present case, however, the local authority chose to bypass the
statutory scheme by requesting Mrs McCann to sign a common law notice
to quit, the effect of which was immediately to terminate the
applicant's right to remain in the house. It does not appear that the
authority, in the course of this procedure, gave any consideration to
the applicant's right to respect for his home. Moreover, under
domestic law (see the majority opinions in Qazi and Kay,
22-28 above), in summary proceedings such as those brought against
the applicant, it was not open to the county court to consider any
issue concerning the proportionality of the possession order, save in
exceptional cases where, as the Court of Appeal put it in the present
case, “something has happened since the service of the notice
to quit, which has fundamentally altered the rights and wrongs of the
proposed eviction”. No such exceptional circumstances
applied in the present case. Furthermore, although since the
applicant's landlord was a public authority it was open to him to
challenge the decisions to obtain the notice to quit and to bring
possession proceedings in an application for judicial review, his
application failed because the local authority had not acted
unlawfully.
As
in Connors, the “procedural safeguards” required
by Article 8 for the assessment of the proportionality of the
interference were not met by the possibility for the applicant to
apply for judicial review and to obtain a scrutiny by the courts of
the lawfulness and reasonableness of the local authority's decisions.
Judicial review procedure is not well-adapted for the resolution of
sensitive factual questions which are better left to the County Court
responsible for ordering possession. In the present case, the
judicial review proceedings, like the possession proceedings, did not
provide any opportunity for an independent tribunal to examine
whether the applicant's loss of his home was proportionate under
Article 8 § 2 to the legitimate aims pursued.
the
court does not accept that the grant of the right to the occupier to
raise an issue under Article 8 would have serious consequences for
the functioning of the system or for the domestic law of landlord and
tenant. As the minority of the House of Lords in Kay observed
(see paragraph 28 above), it would be only in very exceptional cases
that an applicant would succeed in raising an arguable case which
would require a court to examine the issue; in the great majority of
cases, an order for possession could continue to be made in summary
proceedings.
It
is, for present purposes, immaterial whether or not Mrs McCann
understood or intended the effects of the notice to quit. Under the
summary procedure available to a landlord where one joint tenant
serves notice to quit, the applicant was dispossessed of his home
without any possibility to have the proportionality of the measure
determined by an independent tribunal. It follows that, because
of the lack of adequate procedural safeguards, there has been a
violation of Article 8 of the Convention in the instant case.
III. ARTICLE 41 OF THE CONVENTION
The
applicant claimed just satisfaction under Article 41 of the
Convention, which provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Non-pecuniary damage
The
applicant claimed a total of EUR 50,000 in compensation for
non-pecuniary damage, including EUR 20,000 for the loss of his home,
EUR 20,000 for the interference with his relationship with his
children and EUR 10,000 for suffering and distress occasioned by the
humiliation of being evicted in the knowledge that the County Court
judge had found it to be unjustified.
The
Government commented that, unlike the applicant in Connors who
was evicted at short notice from his home of 15 years, and to whom
the Court awarded EUR 14,000 in respect of non-pecuniary damage, the
present applicant had lived in the house in question for only three
years before his marriage broke down and he was ordered to leave
under the molestation order of April 2001. Furthermore, the applicant
had applied for an exchange of property on 4 January 2002, as the
house was too big for his needs. In these circumstances, and given
that it was impossible to ascertain what the applicant's position
would have been had there been no breach of Article 8 (which was, in
any event, denied), the Government submitted that the finding of a
violation would in itself constitute sufficient just satisfaction or,
in the alternative, an amount significantly lower than that in
Connors should be awarded.
The
Court notes that it has found Article 8 violated in its procedural
aspect only. Given the allegations of domestic violence against the
applicant, his status as a single man (albeit one who wished to
maintain regular overnight contact with his children) and the
shortage of local authority housing stock, it is far from clear that,
had a domestic tribunal been in a position to assess the
proportionality of the eviction, the possession order would not still
have been granted. Nonetheless, the applicant was deprived of his
home without the opportunity to obtain a ruling on the issues under
Article 8, and the Court thus concludes that he suffered some
non-pecuniary damage, in particular feelings of frustration and
injustice, not sufficiently compensated by the finding of a violation
of the Convention (see Connors, § 114). Deciding on
an equitable basis, it awards the applicant EUR 2,000 under this
head.
B. Costs and expenses
In
addition, the applicant claimed costs incurred during the domestic
and Strasbourg proceedings, claimed at the national inter partes
rate, amounting to a total of GBP 75,570.18, of which GBP
7,691.32 represented his costs before the Court.
The
Government submitted that GBP 45,000 in respect of the domestic costs
and GBP 6,000 for the Strasbourg costs would be more than adequate.
The
Court awards EUR 75,000 for costs and expenses, together with any
value added tax that may be payable, less the EUR 850 already
received in legal aid from the Council of Europe.
C. Default interest
The
Court considers it appropriate that the default interest should be
charged, based on the marginal lending rate of the European Central
Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
Declares the complaint under Article 8 of the
Convention admissible;
2. Declares the remainder of the complaint inadmissible;
Holds that there has been a violation of
Article 8 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date, EUR 2,000 (two thousand euros) in respect of
non-pecuniary damage and EUR 75,000 (seventy-five thousand euros) in
costs and expenses, less EUR 850 (eight hundred and fifty euros)
in legal aid paid by the Council of Europe and inclusive of any
tax that may be chargeable, which payments are to be converted into
pounds sterling at the rate applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English and notified in writing on 13 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
