London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE McCOMBE
| HARVEY PHILLIPS||Appellant|
|- and -|
|THE DIRECTOR of PUBLIC PROSECUTIONS||Respondent|
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David PERRY & Natasha TAHTA (instructed by Crown Prosecution Service) for the Respondent
AS APPROVED BY THE COURT
Crown Copyright ©
Mr Justice McCOMBE :
“ 6(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
(3) Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
7(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
(2) This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
“The enjoyment of the rights and freedoms set forth in this 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”.
(1) that the Appellant’s conduct did not fall within the prohibition contained in the Regulation
(2) that the terms of Regulation 4 (27) are insufficiently precise to satisfy the requirement that offences should be “prescribed by law” for the purposes of the Convention
(3) that the Regulation infringes the principle of proportionality inherent in the Convention
(4) that Regulation 4 (27) is incompatible with Article 14 of the Convention in its unequal treatment of “black cabs” and other types of taxi or hire vehicle in its restriction of the “peaceful enjoyment of possessions” contrary to Article 1 of the First Protocol to the Convention.
(5) that accordingly the prosecution for this offence contravened Section 6 of the Human Rights Act 1998.
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
“ 78….The Court recalls that Article 1 of Protocol No.1 guarantees in substance the right to property. It comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of the peaceful enjoyment of possessions. The second, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
However, the three rules are not ‘distinct’ in the sense of being unconnected: the second and the third rules are concerned with particular interferences with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule”.
“ 80….According to the Court’s well-established case law, an interference, including one resulting from a measure to secure the payment of taxes, must strike a ‘fair balance’ between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. The concern to achieve this balance is reflected in the structure of Article 1 as a whole, including the second paragraph: there must therefore be a reasonable relationship of proportionality between the means employed and the aims pursued.
Furthermore, in determining whether this requirement has been met, it is recognised that a Contracting State, not least when framing and implementing policies in the area of taxation, enjoys a wide margin of appreciation and the Court will respect the legislature’s assessment in such matters unless it is devoid of reasonable foundation”.
“The contours of the proportionality principle are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69, the Privy Council adopted a three stage test. Lord Clyde observed, at page 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive, the court should ask itself: ‘whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental constitutional right: (ii) the measures designed to meet the legislative objectives are rationally connected to it: (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”
Lord Justice Latham: I agree.