Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 24755/94

Sally McLeod

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 9 April 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-36) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-34). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 35-36). . . . . . . . . . . . . . . . . . .6

III. OPINION OF THE COMMISSION

(paras. 37-61) . . . . . . . . . . . . . . . . . . . . .7

A. Complaints declared admissible

(para. 37). . . . . . . . . . . . . . . . . . . . .7

B. Points at issue

(para. 38). . . . . . . . . . . . . . . . . . . . .7

C. As regards Article 8 of the Convention

(paras. 39-54). . . . . . . . . . . . . . . . . . .7

CONCLUSION

(para. 55). . . . . . . . . . . . . . . . . . . . 10

D. As regards Article 1 of Protocol No. 1

(paras. 56-58). . . . . . . . . . . . . . . . . . 11

CONCLUSION

(para. 59). . . . . . . . . . . . . . . . . . . . 11

E. Recapitulation

(paras. 60-61). . . . . . . . . . . . . . . . . . 11

DISSENTING OPINION OF Mr. C.L. ROZAKIS

JOINED BY Mr. G. RESS . . . . . . . . . . . . . . . . . . . 12

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 14

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a British citizen, born in 1952 and resident in

Middlesex.

3. The application is directed against the United Kingdom. The

respondent Government were represented by their Agent,

Mr. Martin Eaton, Deputy Legal Adviser, Foreign and Commonwealth

Office.

4. The case concerns the entry of the police in the applicant's

house. The applicant invokes Article 8 of the Convention and Article 1

of Protocol No. 1.

B. The proceedings

5. The application was introduced on 22 May 1994 and registered on

2 August 1994.

6. On 24 October 1995 the Commission (First Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on its admissibility and

merits.

7. The Government's observations were submitted on 16 February 1996

after an extension of the time-limit fixed for this purpose. The

applicant replied on 12 April 1996.

8. On 26 June 1996 the Commission (First Chamber) declared

admissible the applicant's complaints concerning the alleged

interference with her home, private life and the enjoyment of her

possessions. It declared inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent

to the parties on 10 July 1996 and they were invited to submit such

further information or observations on the merits as they wished. The

applicant submitted observations on 3 October 1996. The Government did

not avail themselves of this opportunity.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

12. The text of this Report was adopted on 9 April 1997 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. On 26 January 1992 the applicant's mother died.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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."

30. 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.

31. 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.

32. 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.

33. 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.

34. 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

35. 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.

36. 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.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

37. The Commission has declared admissible the applicant's complaints

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

and her right to peaceful enjoyment of her possessions.

B. Points at issue

38. The issues to be determined in the present case are:

- whether there has been a violation of Article 8 (Art. 8) of the

Convention;

- whether there has been a violation of Article 1 of Protocol No. 1

(P1-1).

C. As regards Article 8 (Art. 8) of the Convention

39. Article 8 (Art. 8) of the Convention provides as relevant:

"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."

40. The applicant submits that the entry of the police in her house

was unlawful and unnecessary. The police were not acting in accordance

with their common-law powers. 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.

41. 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.

42. 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.

43. 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.

44. 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.

45. 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.

46. The Commission considers that the entry of the police into the

applicant's house to prevent a breach of the peace constituted an

"interference" with her right "to respect for her private life and

home". Such an interference is contrary to Article 8 (Art. 8) unless

it is "prescribed by law", directed at one or more of the legitimate

aims set out in paragraph 2 and is "necessary in a democratic society"

for achieving them.

47. The Commission will first examine whether the interference was

"in accordance with the law". The Commission recalls that the

expression "in accordance with the law" requires firstly that the

impugned measure should have some basis in national law; it also refers

to the quality of the law in question, requiring that it should be

accessible to the person concerned, who must moreover be able to

foresee its consequences for him, and compatible with the rule of law

(Eur. Court HR, Herczegfalvy v. Austria judgment of 24 September 1992,

Series A no. 244, p. 27, para. 88).

48. The Commission notes in this connection that the power of the

police to enter private premises without a warrant to prevent a breach

of the peace has, since the Police and Criminal Evidence Act 1984, a

statutory basis. It is true that section 17 subsection 5 defines the

scope of that power by reference to common law. However, the domestic

courts which examined the applicant's case cited two judgments of the

Divisional Court (Thomas v. Sawkins [1935] KB 249 and McGowan v. Chief

Police Constable of Kingston Upon Hull [1968] Crim LR 34) from which

it derives that the police are entitled to enter a private house

without a warrant to prevent a breach of the peace arising out of a

domestic quarrel.

49. The Commission further notes that it has found that the concept

of breach of the peace can be considered adequately defined in domestic

law to be an "offence" within the meaning of Article 5 para. 1 (c)

(Art. 5-1-c) of the Convention and is sufficiently certain to comply

with the notion of "prescribed by law" under Article 10 para. 2

(Art. 10-2) of the Convention (Steel, Needham, Polden and Cole v. the

United Kingdom, Comm. Report 9.4.97, paras. 105 with further references

and 148, unpublished).

50. The Commission considers that the above-mentioned generally

accessible judgments provided reasonable foreseeability that the police

had the right to enter and remain in her house to prevent a domestic

quarrel which could have arisen on the occasion of her former husband's

attempt to remove the property items which appeared on the list

appended to the court's order. It follows that the requirement under

Article 8 para. 2 (Art. 8-2) of the Convention that any interference

with the right to respect for one's private life and home must be

"prescribed by law" has been complied with.

51. The Commission further considers that the interference pursued

a legitimate aim under Article 8 para. 2 (Art. 8-2) of the Convention,

i.e. it was "in the interests of the prevention of disorder".

52. The Commission will next examine whether the interference was

"necessary in a democratic society". The Commission recalls that, in

Article 8 para. 2 (Art. 8-2) as in several other provisions of the

Convention, the phrase "necessary in a democratic society" implies the

existence of a "pressing social need". The Contracting States enjoy a

certain margin of appreciation in assessing whether such a need exists,

but this goes hand in hand with a European supervision which covers the

basic legislation and the decisions applying it, even those given by

an independent court (Eur. Court HR, Silver and others v. the United

Kingdom judgment of 25 March 1983, Series A no. 61, pp. 37-38,

para. 97). Moreover, measures constituting an interference with rights

protected under Article 8 (Art. 8) of the Convention, in order to be

considered necessary in a democratic society, must be proportionate to

the legitimate aim pursued (Eur. Court HR, Beldjoudi v. France judgment

of 26 March 1992, Series A no. 234, p. 27, para. 74).

53. The Commission notes in this connection that the applicant's

divorce had given rise to a long and acrimonious dispute with her

former husband. On 3 October 1989 the police were informed that the

applicant's former husband together with his solicitor and some

relatives would go to the former matrimonial home to collect property

belonging to him according to a court order. While the police were

given the list attached to the order, they were not shown the order

itself, which as it subsequently turned out gave the applicant another

three days in which to deliver the property items in question to her

former husband. Two police officers accompanied the applicant's former

husband and his party to the applicant's home where her mother was to

be found. According to the national courts, it was possible that a

police officer knocked on the door. As for the rest, their role was

limited to ensuring that only the items mentioned in the list were

removed. Moreover, when the applicant arrived, after the items had been

loaded on a van, and she objected to the property being removed, one

of the police officers indicated that the van should be allowed to

drive away and that any disputes were to be resolved later by the

parties' solicitors.

54. The Commission considers that the police officers acted with

restraint. Moreover, there was the risk that, had the former husband

and his solicitor and the other members of his party gained access on

their own to the house, there would have been considerable disturbances

and risk of damage. Finally, the police officers had inevitably limited

possibilities of knowing the precise nature of private and family

relations, but were under a duty to take seriously an indication from

one party that trouble may arise. In the light of all the above, the

Commission considers that it was within the State's margin of

appreciation to consider the police officer's presence in the

applicant's house necessary to avoid a breach of the peace. It follows

that the measures taken were not, in the particular circumstances of

the case, disproportionate to the legitimate aim pursued. As a result,

the interference with the applicant's right under Article 8 (Art. 8)

can be regarded as "necessary in a democratic society".

CONCLUSION

55. The Commission concludes, by 14 votes to 2, that in the present

case there has been no violation of Article 8 (Art. 8) of the

Convention.

D. As regards Article 1 of Protocol No. 1 (P1-1)

56. Article 1 of Protocol No. 1 (P1-1) provides as relevant:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions."

57. The applicant submits that the police and the courts failed to

show respect for her right to peaceful enjoyment of her possessions.

58. The Commission notes that the police did not seize any items from

the applicant's house. Their mere presence there, entirely lawful

itself, while her former husband trespassed on her land cannot amount

to an interference with her possessions (see, mutatis mutandis,

No. 9614/81, Dec. 12.10.83, D.R. 34, p. 119). As a result, there was

no violation of Article 1 of Protocol No. 1 (P1-1).

CONCLUSION

59. The Commission concludes, unanimously, that in the present case

there has been no violation of Article 1 of Protocol No. 1 (P1-1).

E. Recapitulation

60. The Commission concludes, by 14 votes to 2, that in the present

case there has been no violation of Article 8 (Art. 8) of the

Convention (para. 55).

61. The Commission concludes, unanimously, that in the present case

there has been no violation of Article 1 of Protocol No. 1 (P1-1)

(para. 59).

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

(Or. English)

DISSENTING OPINION OF Mr. C.L. ROZAKIS

JOINED BY Mr. G. RESS

We regret that we are unable to agree with the majority of the

members or the First Chamber that, in the circumstances of the case,

there has been no violation of Article 8 with regard to the applicant's

right to respect for her home and private life. On the contrary, we

believe that the case presents problems concerning the balancing of the

interests involved under the test of necessity in a democratic society.

First, we note that the police entered the applicant's home on

30 October 1989 using their common-law power, preserved under

section 17 para. 6 of the Police and Criminal Evidence Act 1984, to

enter private premises to prevent a breach of the peace. However, we

also note that, under section 17 para. 1 (e) of the same Act, the

police have the power to enter, without a warrant, any premises for the

purpose of saving life or limb or preventing previous damage to

property. The practical effect of section 17 para. 6 of the 1984 Act

would, therefore, appear to be to preserve the power of the police to

enter private premises in situations which do not involve any threats

to life or limb and where there is no risk of serious damage to

property. We consider, however, that serious questions arise as to the

necessity of the existence of such a power in a democratic society.

Entering private premises without the occupier's consent and without

a warrant issued by a judicial authority to prevent something less that

a threat to life or limb, or a threat of serious damage to property

appears to us a disproportionate measure.

Secondly, we think that the police acted in a manner which gives

the impression that they took sides in favour of the former husband of

the applicant, rather than acting objectively by preventing what was,

in the circumstances of the case, a possible breach of the peace. We

hold that the negligence of the police was, principally, in failing to

take care to examine the court order of 28 September 1989, which

allowed the applicant to deliver to her former husband the property

identified in the list before 6 October 1989. Had they asked to examine

the order, they would have realised that 3 October 1989 was not the day

of the delivery and that the applicant had not consented to her former

husband's entering the premises and taking away the property identified

in the list. In other words, the police should have appreciated that,

in the absence of an agreement between the parties and in view of the

contents of the order, the husband of the applicant did not have an

automatic right to enter her premises; and by acting as they did, they

legitimised by their presence and participation an otherwise illegal

act, namely trespassing. As a consequence of their primary omission in

failing to examine the order, the police would appear to have acted for

the former husband, rather than as neutral guardians of the correct

application of the law. The lack of impartiality on the part of the

police is further evidenced by the fact that one of the police officers

told the applicant's mother that they, the police, were from the court

and had a court order to execute, which statement is recorded in the

affidavit sworn by the applicant's mother on 21 November 1990 and has

never been disproved; and the fact that, when the applicant arrived,

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 consequence of their behaviour, the police assisted

the applicant's former husband both in entering the applicant's home

illegally and in removing the property therein without restraint.

Under such circumstances, we believe that Article 8 has been

violated.

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McLEOD v. THE UNITED KINGDOM

McLEOD v. THE UNITED KINGDOM

LEXI