Information Note on the Court’s case-law No. 124
November 2009
Friend and Others v. the United Kingdom (dec.) - 16072/06 and 27809/08
Decision 24.11.2009 [Section IV]
Article 8
Article 8-1
Respect for home
Respect for private life
Statutory bans on hunting wild mammals with dogs: inadmissible
Article 11
Article 11-1
Freedom of peaceful assembly
Statutory bans on hunting wild mammals with dogs: inadmissible
Article 1 of Protocol No. 1
Article 1 para. 2 of Protocol No. 1
Control of the use of property
Statutory bans on hunting wild mammals with dogs: inadmissible
Facts – The applications concerned statutory bans introduced in the United Kingdom by the Protection of Wild Mammals (Scotland) Act 2002 and the Hunting Act 2004 on the traditional practice of hunting with dogs. Hunting had a long history in rural Britain and hunts had developed their own particular customs and practices, including codes, dress, etiquette and hierarchy. The new legislation made it a criminal offence, inter alia, to hunt a wild mammal with a dog except in certain, statutorily-defined, circumstances. The applicants, a non-governmental organisation called the Countryside Alliance and eleven private individuals, challenged the legislation in the domestic courts but their appeals to the House of Lords were dismissed in a judgment of 28 November 2007. In their applications to the European Court, the applicants complained of a violation of their rights to respect for their private life and, in some instances, of their homes under Article 8 of the Convention. One of the individual applicants, Mr Friend, further complained of a violation of Article 11. The Countryside Alliance and the other individual applicants also complained of violations of Article 1 of Protocol No. 1 owing to the restrictions the ban imposed on the use of their land and the effect it allegedly had on their livelihood. One applicant who rented accommodation as a huntsman and another who rented her home and stables for her livery business also submitted that they would probably lose their homes and livelihoods as a result of the hunting ban and relied on the European Court’s decision in the case of Sidabras and Džiautas v. Lithuania (nos. 55480/00 and 59330/00, 27 July 2004, Information Note No. 67).
Law – Article 8: (a) Private life – Although private life was a broad concept, that did not mean that it protected every activity a person might seek to engage in with other human beings in order to establish and develop relationships with them. There was nothing in the Court’s established case-law which suggested that the scope of private life extended to activities of an essentially public nature. By its very nature, hunting was a public activity that was carried out in the open air, across wide areas of land. It attracted a range of participants and very often spectators. Despite the obvious sense of enjoyment and personal fulfilment the applicants derived from it and the interpersonal relations they developed through it, hunting was too far removed from the applicants’ personal autonomy and the interpersonal relations they relied on were too broad and indeterminate in scope for the hunting bans to amount to an interference with their rights under Article 8. As to their submission that hunting was part of their lifestyle, the hunting community could not be regarded as an ethnic or national minority. Mere participation in a common social activity, without more, could not create membership of such a minority. Many people chose to socialise with people who shared their interest in a particular activity or pastime, but the interpersonal ties thus created could not be taken to be sufficiently strong to create a discrete minority group. Finally, hunting did not amount to a particular lifestyle so inextricably linked to the identity of those who practised it as to make a ban a threat to the very essence of their identity.
(b) Home – As regards those applicants who had alleged that the inability to hunt on their land amounted to interference with their homes, the Court noted that the concept of home did not include land over which the owner permitted or caused a sport to be conducted and it would strain the meaning of home to extend it in that way. As to the allegations that two of the applicants would lose their homes as a result of the ban, the Court had not been provided with any evidence that this had in fact happened, still less any grounds for finding that this had been a direct consequence of the ban. Unlike the position in the Sidabras case, the ban on hunting did not amount to a direct restriction on taking up any kind of employment or create serious difficulties in earning a living; still less did it mark those concerned in the eyes of society. There had therefore been no interference with the applicants’ Article 8 rights.
Conclusion: inadmissible (manifestly ill-founded).
Article 11: While the Court was prepared to assume that Article 11 may extend to the protection of an assembly of an essentially social character, the hunting bans did not prevent or restrict Mr Friend’s right to assemble with other huntsmen and so did not interfere with his right of assembly per se. The bans only prevented a hunt from gathering for the particular purpose of killing a wild mammal with hounds and the hunt remained free to engage in alternatives such as drag or trail hunting. It was also of relevance that the wider public or social dimensions to a traditional hunt had also been preserved in drag or trail hunting. In the Court’s view, the mere fact that, prior to the bans, hunting had culminated in the killing of a wild mammal by hounds was not sufficient for it to find that the bans struck at the very essence of the right of assembly.
Even assuming that the hunting bans could be regarded as involving such interference, the interference could be considered justified as it had been introduced after extensive debate by the democratically-elected representatives of the State on the social and ethical issues raised and, having regard to its nature and limited scope, was within the State’s margin of appreciation and proportionate to the legitimate aim of protecting morals it pursued.
Conclusion: inadmissible (manifestly ill-founded).
Article 1 of Protocol No. 1: Even assuming that the ban interfered with the applicants’ property rights, it had served a legitimate aim and was proportionate. The legislature had a wide margin of appreciation in implementing social and economic policies and the Court would respect its judgement as to what was in the public interest unless that judgement was manifestly without reasonable foundation. There had been extensive public and parliamentary debate and the judgement that it was in the public interest to ban hunting had pre-eminently been for the House of Commons to make. While the Court accepted that a statutory ban on an activity inevitably had an adverse financial impact on those whose businesses or jobs were dependent on the prohibited activity, the domestic authorities had enjoyed a wide margin of appreciation in determining the types of loss for which compensation would be made. The Court would normally respect the legislature’s judgement on that issue unless it was manifestly arbitrary or unreasonable, especially in cases concerning control of the use of property rather than the deprivation of possessions. The Court did not find the absence of provision for compensation in the legislation to have been arbitrary or unreasonable or that an individual and excessive burden had been imposed on the applicants and noted in that connection that hunts had continued to gather, albeit without live quarry, since the passage of the Act. Lastly, the domestic courts had given the greatest possible scrutiny to the applicants’ complaints and there were no serious reasons to justify departing from their clear findings.
Conclusion: inadmissible (manifestly ill-founded).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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