AS TO THE ADMISSIBILITY OF
Application No. 24755/94
by Sally McLEOD
against United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 26 June 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 May 1994 by
Sally McLEOD against United Kingdom and registered on 2 August 1994
under file No. 24755/94;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
16 February 1996 and the observations in reply submitted by the
applicant on 12 April 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of the United Kingdom born in 1952.
She is a nurse and a management consultant and is currently residing
in Middlesex.
The facts of the case, as they have been submitted by the
parties, may be summarised as follows:
a) Particular circumstances of the case
In 1986 the applicant and her husband separated and in 1988 they
divorced. Following separation, there were proceedings before the
Uxbridge County Court about the former matrimonial home and its
contents. These proceedings were described by the High Court in its
judgment of 12 November 1992 as substantial and acrimonious.
On 30 June 1989 the Uxbridge County Court ordered the division
of the furniture and other property to be found in the former
matrimonial home in accordance with a list identified in the order. On
23 August 1989 the same court ordered the applicant to make
arrangements for the delivery of her former husband's property. The
order was backed with a penal notice. On 28 September 1989 the Uxbridge
County Court made a committal order suspended for seven days so that
the applicant could deliver to her former husband the property
identified in the list on or before 6 October 1989.
On 3 October 1989 the applicant's former husband, accompanied by
his brother and sister and a solicitor's clerk, went to the former
matrimonial home to collect the property belonging to him. His
solicitors had made arrangements for two police officers to be present.
When the police officers arrived, they were given a copy of the list
but not of the court order. According to one of the police officers,
the solicitor's clerk offered to return to his office to get a copy of
the order, but the police officer did not require this.
The applicant was not present at her house when the police and
her former husband's party arrived. Her mother was, however, there. The
applicant's former husband, his relatives, the solicitor's clerk and
the police officers gained access in the house in circumstances which
were subsequently found by the courts to constitute trespass insofar
as the former husband, his relatives and the solicitor's clerk were
concerned. In an affidavit sworn on 21 November 1990, the applicant's
mother claimed that one police officer told her that they were from the
court and had a court order to execute. When she opened the door the
applicant's former husband and his party entered.
It was subsequently established by the courts that the police did
not participate directly in the removal of any property items. It was
the applicant's former husband and his family who started removing a
number of items which a police officer checked against the list. Part
of the property had been placed on a van when the applicant arrived.
She objected to the property being removed. One of the police officers
intervened insisting that the van should not be unloaded and that the
applicant's former husband should be allowed to drive away. In his
view, any disputes were to be resolved later by the parties'
solicitors. In the evening of 3 October 1989 the applicant's mother,
who had recently suffered a stroke, was taken to hospital. She was
discharged later on the same evening.
The applicant instituted criminal proceedings against her former
husband and the other members of his family who had taken part in the
incident of 3 October 1989. The charges were dismissed.
The applicant further instituted, together with her mother, three
sets of civil proceedings, one against her former husband's solicitor,
another against her former husband and his brother and sister, and a
third against the police.
On 26 January 1992 the applicant's mother died.
On 12 November 1992 the High Court dismissed the third action on
the ground that the police officers had not trespassed on the
applicant's land or goods. The court considered that the applicant had
not agreed to her husband removing his property from the former
matrimonial home on 3 October 1989. However, a police officer had a
duty to prevent any breach of the peace which he reasonably apprehended
would occur. In accordance with common law he was entitled to enter
onto and remain on private property without the consent of the occupier
or the owner. The police had reasonable grounds for apprehending that
a breach of peace might take place in the present case. Thus it was not
necessary to determine whether the applicant's mother had consented to
the police officers entering the house. Although the applicant was not
present she could have returned and the police officers were, as a
result, entitled to remain on the premises until the removal of the
property was concluded. The police officers did not participate in the
disturbance of the applicant's property. The only possible involvement
was that of one police officer who had checked that only the items on
the list figuring in the court's order were removed.
On 27 November 1992 the Brentford County Court pronounced on the
applicant's two remaining civil actions against her former husband, his
brother and sister and his solicitors. It considered that there had not
been any agreement between the applicant and her former husband for him
to collect his property on 3 October 1989 and that the applicant's
mother had not given permission to the applicant's former husband and
the persons accompanying him to enter the house. The court concluded
that, as a result, the applicant's former husband and the persons
accompanying him had trespassed on the applicant's land and property.
The applicant and her mother's estate were awarded £1,950 pounds with
interest by way of compensation.
On 1 December 1992 the applicant appealed against the decision
of 12 November 1992 of the High Court on the ground that the police
officers should have made enquiries before entering her house, that
there was no breach of peace or threat of a breach of peace and that
the police were negligent in failing to give adequate protection to her
mother.
In a decision issued on 3 February 1994 the Court of Appeal
considered that the applicant's main complaint, as developed before it,
was that the police officers' presence had facilitated the trespass by
the applicant's husband and the persons accompanying him. The court
accepted that neither the applicant nor her mother had consented to the
entry of the applicant's former husband and of the persons
accompanying him to the house. It also accepted that the police
officers had taken no active part in removing the property apart from
one of them checking the items removed against the court list. However,
both police officers entered the house and it was possible that one of
them knocked at the door.
The court further noted that section 17 para. 1 (e) of the Police
and Criminal Evidence Act 1984 provided that a police officer could
enter any premises for the purpose of saving life or limb or preventing
serious damage to property and section 17 para. 5 abolished all the
rules of common law under which a police officer had power to enter
premises. However, section 17 para. 6 provided that nothing in
section 17 para. 5 affected any power of entry to deal with or prevent
a breach of the peace.
The court considered that the principal authority under common
law was the decision of the Divisional Court in Thomas v. Sawkins
[1935] KB 249. In that case police officers had entered and remained
in a hall where a public meeting which had been extensively advertised
was about to take place, although they had been refused admission by
the organisers of the meeting. Lord Hewart, who presided over the
Divisional Court, considered the following:
"I think that there is quite sufficient ground for the
proposition that it is part of the preventing power, and,
therefore, part of the preventive duty, of the police, in
cases where there are such reasonable grounds of
apprehension as the justices have found here, to enter and
remain on private premises."
Moreover, Judge Elver stated, in relation to entering premises
in connection with an affray, the following:
".... I cannot doubt that he has a right to break in to
prevent an affray which he has reasonable cause to suspect
may take place on private premises."
He considered, therefore, that the police officers were justified in
what they were doing.
Finally, Judge Lawrence considered the following:
"If a constable in the execution of his duty to preserve
the peace is entitled to commit an assault, it appears to
me that he is equally entitled to commit a trespass."
The court further considered that another precedent of relevance
for the applicant's case was McGowan v. Chief Police Constable of
Kingston Upon Hull, reported in the Times on 21 October 1967, where the
Divisional Court had held that the police were entitled to enter a
private house where they feared there could be a breach of peace
arising out of a domestic quarrel.
The court recalled that the judgment in Thomas v. Sawkins had
been subjected to criticism in that it appeared to infringe the basic
principle that the law would not intervene until an offence had
actually been committed. It also recalled that it had been suggested
that the precedent established in Thomas v. Sawkins should be limited
to public meetings.
However, the court was satisfied that Parliament in section 17
para. 6 of the Police and Criminal Evidence Act 1984 had recognised
that there was a power to enter premises to prevent a breach of the
peace as a form of preventive justice. It further considered that there
was not any satisfactory basis for restricting that power to particular
classes of premises such as those where public meetings were held. If
the police reasonably believed that a breach of the peace was likely
to take place on private premises, they had power to enter those
premises to prevent it. The apprehension must be genuine and it must
relate to the near future, ie the risk of a breach of peace must be
real and imminent. The courts could exercise scrutiny not only of the
police officer's belief at the time but also of the grounds for his
belief.
Relying on the facts as established by the High Court, the Court
of Appeal considered that the police officers entered the applicant's
house to prevent a breach of the peace and they were reasonable in
concluding that there was a danger of such a breach. In this light, the
court decided to dismiss the appeal with costs against the applicant.
Leave to appeal to the House of Lords was refused.
On 1 March 1994 the applicant applied to the House of Lords for
leave to appeal against the decision of the Court of Appeal of
3 February 1994. On 18 May 1994 the House of Lords refused the
application.
b) Relevant domestic law
The common-law powers of the police to enter private premises to
prevent a breach of the peace, as preserved by section 17 para. 6 of
the Police and Criminal Evidence Act 1984, are defined in the court
decisions referred to in the above-mentioned judgment of the Court of
Appeal in the applicant's case.
A breach of the peace is "an act done or threatened to be done
which either actually harms a person, or in his presence his property,
or is likely to cause such harm, or which puts someone in fear of such
harm being done": R v. Howell, [1982] QB 416.
COMPLAINTS
1. The applicant complains that the entry of the police in her house
on 3 October 1989 and the subsequent failure of the courts to grant her
legal protection amounts to a violation of her right to respect for her
home and private life under Article 8 of the Convention and her right
to peaceful enjoyment of her possessions under Article 1 of
Protocol No. 1.
2. The applicant also complains under Article 6 para. 1 of the
Convention that the House of Lords refused to examine her appeal.
3. The applicant finally complains that the rights of her deceased
mother under Articles 6 and 8 of the Convention were also violated.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 May 1994 and registered on
2 August 1994.
On 24 October 1995 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
16 February 1996, after an extension of the time-limit fixed for that
purpose. The applicant replied on 12 April 1996.
THE LAW
1. The applicant complains of a violation of her right to respect
for her private life and home under Article 8 (Art. 8) of the
Convention.
Article 8 (Art. 8) of the Convention, insofar as relevant,
provides the following:
"1. Everyone has the right to respect for his private .... life
(and) 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 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."
The Government submit that the interference with the applicant's
rights was in accordance with the law. Section 17 para. 6 of the Police
and Criminal Evidence Act 1984 is unequivocal in its terms. The rule
in Thomas v. Sawkins is a well established principle of English law and
has been recently confirmed to apply in respect of a domestic dispute
in a private house in circumstances analogous to the applicant's in
McGowan v. Chief Constable of Kingston upon Hull. The rule in Thomas
v. Sawkins is formulated with sufficient precision to enable the police
and the citizens to regulate their conduct. When Parliament last
reviewed police powers under common law to enter private premises to
deal with or prevent a breach of peace in 1984, they considered that
there was no need for clarification.
The Government further argue that the interference was necessary
in a democratic society for the prevention of disorder or crime. The
husband's solicitor invited the police to attend the applicant's home
during the visit of her former husband, because he feared that there
might be breach of the peace because of the history of the court
proceedings between the applicant and her former husband. Given this
highly volatile situation, the police might have been failing in their
duty if they had not acceded to the request. The two police officers
did not attend the home to facilitate the removal of the former
husband's property, but to ensure that no harm was done to any person
or anyone's property. The necessity of the police officers' presence
was proven when the applicant arrived on the scene.
The Government contend that the fact that it subsequently
transpired that the applicant's former husband and his party were
trespassing is irrelevant to the issue of whether the police officers'
actions were necessary. The police were not there to determine whether
there was an agreement between the applicant's former husband and the
applicant or her mother to enter her home. Faced with the immediacy of
the situation, the police had to decide whether there was a genuine
threat of a breach of the peace in the near future. Their actions were
subjected to high scrutiny by the national courts and their propriety
was upheld. The Commission can only conclude that it was unnecessary
for the police officers to enter the applicant's home, if the national
courts' judgments were manifestly incorrect.
The applicant invites the Commission to take into consideration
the extensive criticism to which Thomas v. Sawkins has been subjected
by academic writers and the widely held view that its value as
precedent is restricted to the facts before the court at the time.
McGowan v. Chief Constable of Kingston upon Hull cannot be regarded as
authoritative support for a wide view of police powers under Thomas
v. Sawkins and there is no other precedent.
The applicant further submits that there was no breach of the
peace in progress when the police decided to enter her home. It was the
applicant's mother who was caused harm and who was put in fear of harm
being done after the entry. The police officers failed to check the
validity of the information they had received concerning the right of
the applicant's former husband to enter her home. As a result, the
trespass to the applicant and her mother's goods and home was a "highly
probable or very likely consequence" of the police's negligence.
The applicant wishes to stress that there had been no previous
police involvement in her dispute with her former husband and no
domestic violence either during the marriage of after the separation.
Neither were the police faced with an urgent or immediate situation.
By failing to check the court order, the police lent their authority
to unlawful acts.
In the light of the parties' observations, the Commission
considers that the application raises serious questions of fact and law
which are of such complexity that their determination should depend on
an examination of the merits. The application cannot, therefore, be
regarded as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground
for declaring it inadmissible has been established.
2. The applicant complains of a violation of her right to peaceful
enjoyment of her possessions under Article 1 of Protocol No. 1
(P1-1).
Article 1 of Protocol No. 1 (P1-1) guarantees the right to the
peaceful enjoyment of one's possessions.
The Commission considers that the complaint under Article 1 of
Protocol No. 1 (P1-1) is so closely related to the applicant's main
complaint under Article 8 (Art. 8) of the Convention that it cannot be
rejected at this stage as being manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention and no
other ground for declaring it inadmissible has been established.
3. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention about the refusal of the House of Lords to grant her leave
to appeal.
Article 6 para. 1 (Art. 6-1) of the Convention guarantees the
right to a fair hearing in the determination of one's civil rights.
Even assuming that the proceedings instituted by the applicant
against the police involved a determination of her civil rights, the
Commission considers that the complaint is manifestly ill-founded. The
Commission is not competent to deal with complaints alleging that
errors of law have been committed by domestic courts, except where it
considers that such errors might have involved a possible violation of
a right set out in the Convention (No. 7987/77, Dec. 13.12.79, D.R. 18
p. 31). However, apart from the fact that the applicant was able to
have her case heard by both the High Court and the Court of Appeal, the
Convention does not guarantee the right of appeal in civil proceedings.
As a result, no appearance of a violation is disclosed by the fact that
the House of Lords refused to give the applicant leave to appeal.
The complaint must, therefore, be rejected as manifestly ill-
founded under Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant finally complains that the rights of her deceased
mother under Articles 6 and 8 (Art. 6, 8) of the Convention were also
violated.
The Commission recalls that an individual can in principle lodge
a petition under Article 25 (Art. 25) of the Convention only when he
claims to be a victim himself of a violation of the rights set forth
in the Convention. Moreover, the Commission does not consider that, in
the circumstances of the case, the applicant can claim to be an
indirect victim of a violation of her deceased mother's rights.
The complaint must be, therefore, rejected as incompatible
ratione personae with the provisions of the Convention under Article 27
para. 2 (Art. 27-2).
For these reasons, the Commission,
by a majority,
DECLARES ADMISSIBLE THE COMPLAINTS CONCERNING THE ALLEGED
INTERFERENCE WITH THE APPLICANT'S HOME, PRIVATE LIFE AND THE
ENJOYMENT OF HER POSSESSIONS, without prejudging the merits of
the case;
unanimously,
DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy