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Cite as: [2005] CSIH 69, [2005] ScotCS CSIH_69, 2006 SC 121

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Friend & Ors v. The Lord Advocate [2005] ScotCS CSIH_69 (27 September 2005)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord MacLean

Lady Paton

Lady Smith

[2005CSIH69]

P672/02

OPINION OF THE COURT

delivered by LORD MACLEAN

RECLAIMING MOTION

BRIAN LEONARD FRIEND

Petitioner and Reclaimer;

in Petition of

JEREMY HAGAN WHALEY and BRIAN LEONARD FRIEND

Petitioners;

against

THE LORD ADVOCATE

Respondent:

_______

Act: Party (Petitioner and Reclaimer)

Alt: Moynihan, Q.C., Wolffe; Solicitor to the Scottish Executive (Respondent)

27 September 2005

[1] The appellant, Brian Leonard Friend together with Jeremy Hagan Whaley, raised a petition seeking judicial review of the enactment by the Scottish Parliament of the Protection of Wild Mammals (Scotland) Act 2002 on the ground that the offences established under the Act were incompatible with the petitioners' rights and freedoms under the European Convention on Human Rights and, in particular, Articles 8, 9, 10, 11, 14, 17 and 53. (The 2002 Act will be referred to as "the Act" and the E.C.H.R. as "the Convention".) The petitioners also averred that the offences conflicted and did not comply with a number of existing U.K. international obligations which they enumerated in article 4 of the petition. They challenged the legislation in terms of the Human Rights Act 1998 and the Scotland Act 1998 on the grounds that the offences (i) were incompatible and had no legal competence and were unlawful under the Convention; (ii) were incompatible with U.K. international obligations; (iii) did not pursue a legitimate purpose; (iv) were not necessary in a democratic society; and (v) were discriminatory. They maintained that the inevitable consequence of the offences was that wild mammals and other creatures would be killed by methods that invariably inflicted more pain and suffering than hunting them with hounds. Both petitioners were involved with the Berwickshire Hunt, Mr Whaley as Master and huntsman and the appellant as a follower, either mounted or on foot. They averred that hunting with hounds was an historical and cultural activity and constituted a cultural life that was followed by an ethnic group. This group of people had thus a common cultural or national tradition. Essentially the remedies sought were, in relation to the alleged infringement of Convention rights, a declaration of incompatibility and, in relation to the alleged failure to observe the U.K.'s international obligations, a declaration of non-compliance.

[2] The hearing before the Lord Ordinary took the form of a debate. In a long and very thorough judgment which dealt fully with all the submissions, the Lord Ordinary sustained the fourth plea-in-law for the respondent, the Lord Advocate, and dismissed the petition on the grounds that the petitioners' averments were irrelevant and lacking in specification.

[3] Before us, Mr Whaley did not insist upon his appeal and it was left to Mr Friend as appellant to present his appeal, which he did in person with both brevity and skill. We should add that, after the Lord Ordinary issued his Opinion, the Second Division of the Inner House in Adams &c v The Scottish Ministers (28 May 2004) gave its judgment on the Act in relation to Articles 8, 11 and 14 and Article 1 of the First Protocol. It held that the Act was within the legislative competence of the Scottish Parliament. We agree with the respondent's submission before us that between the two judgments there was a commonality in relation to Articles 8, 11 and 14, and we were invited to follow the reasoning in the decision of the Inner House. In this reclaiming motion, of course, the appellant maintains that his rights are also infringed in terms of Articles 9, 10, 17 and 53 and he further maintains that the Act contravenes various international obligations entered into by the United Kingdom. In these respects, therefore, there is a distinction between Adams and this case. It was unfortunate but perhaps understandable that the appellant did not refer to or appear to have considered the implications of the Inner House judgment in Adams which was available and lodged as an authority, it has to be said, along with many others. Only if we, as an Extra Division, were convinced that the reasoning and decision of the Second Division were wrong and should not be followed, could we remit the matters appealed in terms of Articles 8, 11 and 14 of the Convention to a larger court. We did not, however, receive any submission to that effect from the appellant. Rather, we were invited on behalf of the respondent to follow the Second Division's judgment and its reasoning.

[4] What we propose to do is first to consider whether any of the relevant Articles are engaged; then, if necessary, to consider whether, assuming they are engaged, the appellant's rights and freedoms have been infringed or curtailed; and finally to consider the relevance of the appellant's submission that the Act contravenes certain international obligations. Since the Second Division have traversed quite a substantial part of the ground we have to cover, we can deal with these questions somewhat more briefly than the Lord Ordinary.

[5] It is crucial to understand at the outset that what the Act does, at least in relation to fox hunting, is to restrict an activity, namely hunting foxes with hounds. Thus, what is prohibited by making it a criminal offence is, as the Lord Ordinary said, mounted fox hunting in which the fox is pursued by hounds with the intention that the hounds kill the fox. The appellant averred that hunting with hounds was an historical and cultural activity and was a cultural life that was followed by an ethnic group, namely a group of people with a common national and cultural tradition.

[6] Article 8 of the Convention provides:

"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(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 national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

[7] The appellant further averred that his way of life which was centred upon the hunt at the core of his community, was an assured right. There was a positive obligation to facilitate such a way of life both in the appellant's interest and to preserve a cultural diversity of value to the whole community. There was no necessity in a democratic society to deny that right nor any justification to apply the derogation provided for in Article 8. The question is whether these averments are relevant for the engagement of Article 8. Before us the appellant maintained that the activity of fox hunting was part of his private and of his family life. It was a cultural lifestyle. Indeed, his whole family was part of the hunt. It mattered not that members of the public could join in. Minorities who enjoyed a cultural diversity, such as gypsies, received protection as in Chapman v The United Kingdom (2001) 33 EHRR 18. He (the appellant) had the same rights as a gypsy. The cultural lifestyle of the Borders was similar to that of Saami (the Lapps) in Norway and, as a minority group they were in principle entitled to claim the right under Article 8 to respect for their particular lifestyle as being "private life", "family life", or "home" (G. and E. v Norway, Application No. 9278/81 and 9415/81, Decision 3 October 1983).

[8] Both the Lord Ordinary and the Second Division of the Inner House observed that the concept of private life according to Convention jurisprudence was difficult to define comprehensively. It was not susceptible to exhaustive definition (Niemietz v Germany (1992) 16 EHRR 97; Pretty v U.K. (2002) 35 EHRR 1; P.G. and J.H. v U.K., Application No. 44787/98, Decision 25 September 2001). But having considered a whole range of cases decided under Article 8 and applying the documentary evidence presented to them (but not unfortunately to us) the Second Division concluded that the prohibited activity (mounted fox hunting with dogs) was not properly to be regarded as part of the private lives of the participants. The hunt was inclusive rather than exclusive. It might involve for participants an element of establishing and developing interpersonal relationships, but it did so in such a broad and indeterminate way that it could not be described as part of their private lives. It was not within the "inner circle" of activities that an individual conducts in private and it did not fall within that "certain degree" to which private life extended into the outside world. We see no reason to disagree with the Second Division on this aspect of the case under Article 8.

[9] It will be recalled that the appellant also averred that he enjoyed a cultural life that was followed by an ethnic group. According to Convention jurisprudence, protection has been given to certain minority groups which have a distinct ethnic quality - gypsies in Chapman; the Saami people in G. and E. v Norway; and the Sorbs in Noack v Germany, an unreported decision of 25 May 2000. As Mr Moynihan for the respondent pointed out, these are very discrete groups. It is impossible to equiparate those engaged in fox hunting with hounds with these groups. The appellant does not belong to a minority group that is in need of protection, nor can he be regarded as belonging to an ethnic group in the sense of sharing common racial origins as elaborated upon by Lord Fraser in Mandla v Dowell Lee [1983] 2 AC 548 at 561D-562G.

[10] We are of the opinion that the averments which have been earlier summarised, sparse as they are, are not relevant for Article 8 to be engaged.

Article 9
[11] Article 9 provides:-

"(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone in community with others, and in public or private, to manifest his religion or belief in worship, teaching, practice and observance.

(2) Freedom to manifest one's religion or beliefs shall be subject to only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

[12] In the pleadings the appellant claims that hunting with hounds was a matter of conscience for the individual. The creation of offences was not necessary in a democratic society and was not justified by any derogation prescribed in Article 9. The fact that a section of the community found an activity offensive or immoral was not in itself a pressing need to make that activity an offence.

[13] In his submission the appellant said that "conscience" meant whether he considered it right or wrong or moral to hunt a fox to death with dogs. The fox was either alive or dead - not wounded or dying of gangrene or the like. The question of morals must be a private matter as morals were part of a private life. If cruelty was the test, it was hard to see why this method of achieving the death was more cruel than any other.

[14] The Lord Ordinary observed (at para. 82) that the freedom of the petitioners to manifest the beliefs and convictions they held was not really in issue. What was in issue was the freedom to act in the way they wished. In his view that was not a freedom guaranteed by Article 9. Nothing in the Act compelled the petitioners to act contrary to their consciences (cf. Chassagnou v France (1999) 29 EHRR 615). They could abstain from killing foxes if they did not wish to shoot them. In any event, not all opinions or convictions constituted beliefs in terms of Article 9, and not all acts were to be regarded as the manifestation of a belief by means of a practice (Pretty v U.K. (above); Johnston v Ireland (1986) 9 E.H.R.R. 203). Mr Moynihan commended the Lord Ordinary's reasoning and conclusions in relation to Article 9 and added that what was covered by Article 9 was the practice of a belief, but not simply being motivated by that belief (R. (Williamson & Others) v Secretary of State for Education and Employment [2003] QB 1300).

[15] We agree with the Lord Ordinary, both in his approach to Article 9 in light of the submissions made to him, and in his conclusions. The belief held by the appellant is in our view not a sufficient belief in the Article 9 sense On the petitioners' averments the Article is in our view not engaged.

Article 10
[16] Article 10 provides as follows:

"(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interest of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining authority and impartiality of the judiciary."

[17] This Article provides for the right to the freedom of expression. The petitioners claimed in their petition that the offences in the Act denied them that right. That freedom was not confined to words and speech. They averred that it included physical and visible participation in the cultural life of the community. The wearing of traditional hunting dress was a visible expression of their culture. The creation of the offences was not necessary in a democratic society and the offences were not justified by any derogation provided in the Article.

[18] The Lord Ordinary held that what was protected was a freedom to express ideas or information. But he could not identify either from what was averred in the petition or from what was said in submission, any idea or piece of information which the petitioners had been prevented from expressing by the provisions of the Act. They could still wear traditional hunting dress and express themselves in that way. What they could no longer do was to carry on a certain activity wearing that dress. He held that there was no entitlement under Article 10 to carry on that activity.

[19] We consider that the Lord Ordinary's reasoning in relation to the invocation of this Article, is unassailable. There are no relevant averments in support of that invocation. Thus, the Article is not engaged.

Article 11
[20] Article 11 provides, inter alia, that everyone has the right to freedom of assembly and to freedom of association with others. The petitioners claimed that the offences deny them their assured right of peaceful assembly to pursue their way of life which included the activity of the hunt. According to the appellant the petitioners associated with others in order to hunt with hounds, much as Saami hunters did (G. and E. v Norway; Konkama and 38 other Saami Villages v Sweden, Application No. 27033/95 E.C.H.R.). He disagreed with the Opinion of Mr Edward Fitzgerald Q.C., which was sought on behalf of the Countryside Alliance in England. The Lord Ordinary, however, agreed with the conclusion and reasoning in that Opinion. He held that Article 11 was not engaged by the prohibition of fox hunting. The Act did not prohibit the assembling of the hunt, on horseback or otherwise, but a particular activity which the hunt might engage upon. What was subject to regulation was the nature of the quarry and the method of the kill, not the fact or manner of association.

[21] In Adams the Inner House expressly approved the Lord Ordinary's reasoning and conclusion (para. 82). In their view there was a material distinction between a restriction that compelled an individual to join an association or prohibited him from joining it, or penalised him in either event, and, on the other hand, a restriction, without reference to any association, merely prohibiting a particular activity with the indirect result that persons could not associate for the purpose of carrying it out. Hunting foxes with dogs fell into the latter category. Whilst the former kind was capable of engaging Article 11, the latter kind was not.

[22] We see no reason with disagree with the conclusions of the Lord Ordinary or the Inner House. In our view the petitioners have not made out a relevant case for the engagement of Article 11. The question of justification does not arise.

[23] Article 14 provides that 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 petitioners claim that the Act discriminates against them in a number of ways. In particular the Act favoured other groups in relevantly similar situations who were engaged in activities with more serious animal welfare consequences.

[24] The Lord Ordinary accepted a submission on behalf of the respondent that Article 14 was not a free-standing prohibition of discrimination. Rather it was a parasitic Article, depending upon the existence of other rights to have any scope. If none of the preceding Articles were engaged, the Lord Ordinary held that Article 14 could have no application. We agree with that approach and the conclusion. In Adams the Inner House, when considering Article 14, quoted from Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711 at para. 56, to the effect that Article 14 "prohibits, within the ambit of the rights and freedoms guaranteed, discriminatory treatment having as its basis or reason a personal characteristic ("status") by which persons or groups of persons are distinguishable from each other". They went on to observe that since Kjeldsen the range of persons who might be said to share a personal characteristic had widened (Wandsworth London Borough Council v Michalak [2002] 4 A.E.R. 1136 per Brooke L.J. at para. 34). But in all such cases the discrimination was between persons or groups of persons. Any discrimination brought about by the Act was in their view, not between persons but between activities. Everyone was prohibited from hunting with dogs. On the other hand, anyone could participate in other lawful types of hunting. The Lord Ordinary in para. 96 of his Opinion viewed fox hunting with dogs as a common activity, engaged in by what, so far as the averments were concerned, was a heterogeneous group of individuals. The prohibition introduced by the Act was on killing foxes in a particular way. It was not a prohibition on killing foxes by a particular sort of people or people having a particular characteristic. The Inner House specifically approved this conclusion by the Lord Ordinary and we see no reason to demur from it. In agreement with the Inner House we consider that the petitioners' or appellant's rights under Article 14 are not engaged.

[25] The appellant also founded on Articles 17 and 53, although in his submission in response, he abandoned the case under Article 53. The petitioners' averments claim simply and without elaboration that the Article was breached by the offences established by the Act. The Lord Ordinary (in para. 46) accepted the respondent's counsel's submissions about the meaning and scope of Article 17. The Convention could not be used with the intention of destroying any of the rights and freedoms set out in those Articles which contained Convention rights. That applied both to the State and to the individual. The State could use the Article to protect itself against the threat of totalitarianism. If the Act breached any of Articles 8 to 11 and 14, the court did not need to consider Article 17. If the Act breached any of these Articles, there would be no breach of Article 17. We consider these submissions to be well-founded. The Article has no relevance and does not apply.

[26] The petitioners and the appellant before us founded on a number of international instruments which, it was maintained, created obligations with which the offences created by the Act did not comply. The Lord Ordinary considered with care the averments and the submissions under this head between paras. 32 and 45 of his Opinion. Notwithstanding all the reasons which the Lord Ordinary advanced, the appellant simply reiterated substantially the same submissions as he had made before the Lord Ordinary. These submissions can and should be met with a short answer. Unless the provisions of the international instruments have been enacted as part of the domestic law of the United Kingdom, they are not binding on the courts within the jurisdictions of the United Kingdom (Mortensen v Peters (1906) 8 F(J) 93; R. v Home Secretary ex parte Brind [1991] 1 AC 696; R. v Lyons [2002] 3 WLR 1562). As the Lord Ordinary expressed it in para. 48, "the provisions of an international treaty, including the Convention, which do not have the status of Convention rights in terms of the Human Rights Act and the Scotland Act, are simply not part of the law of Scotland". The appellant has failed to persuade us that any of the provisions of the international instruments have been enacted as part of the domestic law of Scotland.

Decision
[27] For all the foregoing reasons we adhere to the Lord Ordinary's interlocutor, sustaining the respondent's fourth plea-in-law, and dismissing the petition. The reclaiming motion is therefore refused.