Case Critique R. (on the application of Countryside Alliance) v Attorney General. There were two appellants (H and E) and they appealed against a decision ([2007] EWCA Civ 817) that the Hunting Act 2004 was neither incompatible with the European Con

In this unit I have been asked to critique the case of ‘R. (on the application of Countryside Alliance) v Attorney General’. I am going to start by stating the material facts of the case and relevant case history.

[1]There were two appellants (H and E) and they appealed against a decision ([2007] EWCA Civ 817) that the Hunting Act 2004 was neither incompatible with the European Convention on Human Rights 1950 nor inconsistent with the EC Treaty (Nice). The Act prohibited the hunting with dogs of certain wild mammals, including foxes and hares. H included those involved in hunting for their occupation or livelihood, and landowners who either permitted hunting across their land or managed their land for that purpose. E included Irish dog breeders who had formerly sold their dogs in the United Kingdom, and UK providers of livery services and hunting-based holidays for those visiting from other EU member states. The Appellants argued that the hunting ban infringed their rights under Art.8 of the Convention as it adversely affected their private life, cultural lifestyle, the use of their home. They submitted that the Act infringed their rights under Art.11 to assemble and associate to hunt foxes, and interfered with their property rights under Protocol 1 Art.1. They also argued that the Act subjected them to adverse treatment, on the grounds of their "other" status under Art.14 compared to those who did not wish to hunt. E contended that the Act was inconsistent with Art.28 and Art.49 of the EC Treaty and sought references to the European Court of Justice on the issues of whether a national measure prohibiting the economic activity of hunting within the territory of a member state engaged Art.28 in circumstances where the prohibition had the predictable effect of diminishing the market for a product used wholly or mainly for that activity and thereby eliminated or reduced cross-border trade in that product. The legal question in this is that ‘does the Hunting Act 2004 comply with the European Convention on Human Rights and EC Treaty (Nice)? The Court answered this legal question by using the case law and using the actual Human Rights act and EC treaty, declining the Appellants argument that the Hunting Act 2004 is in breach of Human Rights act and EC Treaty.

This case appeared before the Divisional Court then Court of Appeal and at last at House of Lords. Two appellants H and E brought it to the court. They applied for judicial review of the Hunting act 2004, challenging its lawfulness and integrity. The Divisional Court refused the application, Court of appeal dismiss the appeal stating that Art.8 was not engaged even in the most extreme cases advanced by the HR appellants. Even if the feared consequences of the ban arose, they would not be caused by a lack of respect in Art.8 terms for the HR appellants' private or family lives or for their homes. The House of Lords affirmed the decision of Court of Appeal.

This is a preview of the whole essay

The key issues raised were that hunting act 2004 does not comply with European Convention of Human Rights and EC Treaty. [2]The Appellants argued that the hunting ban infringed their rights under Art.8 of the Convention as it adversely affected their private life, cultural lifestyle, the use of their home. They submitted that the Act infringed their rights under Art.11 to assemble and associate to hunt foxes, and interfered with their property rights under Protocol 1 Art.1. They also argued that the Act subjected them to adverse treatment, on the grounds of their "other" status under Art.14 compared to those who did not wish to hunt. E contended that the Act was inconsistent with Art.28 and Art.49 of the EC Treaty and sought references to the European Court of Justice on the issues of whether a national measure prohibiting the economic activity of hunting within the territory of a member state engaged Art.28 in circumstances where the prohibition had the predictable effect of diminishing the market for a product used wholly or mainly for that activity and thereby eliminated or reduced cross-border trade in that product.

The tried to resolve the issues by interpreting the ECHR acts with more detail by that did not resolved the issue therefore need re review.

When we analyse the articles of the act we can see that landowners, individuals involved in the hunt tradition, animal right supporters and animals can make a defence if they all have rights. When we look at the landowning, we see that there two types of landowners, private landowners and public landowners. Private landowners can be either in favour or against hunting, and public landowners can either be local or national government or an organisation, i.e. the National Trust. The question that needs to be asked in terms of rights is for whose interests is the land held in? If it is everybody’s then hunt supporters are included and can argue Article 1 and 8 of the Human Rights Act is protecting them from a ban. However if the land was held for the majority then maybe hunt supporters and participators wouldn’t be included in the majority and thus wouldn’t be able to argue articles 1 and 8. This, however, is not known as there has never been such a referendum on an issue of hunting and what private or publicly owned land is used for or whose interest it is used for.

On the other hand, looking at all the individuals and members involved in hunting, for example owners of the dogs and horses and the trainers etc one must analyse their rights. For example, do these individuals have rights to enjoy the hunt? If so then they can offer certain articles of the act as their defence. If a ban was implemented upon hunting with dogs one must not only look at the human rights that are infringed but for instance employment rights would be affected by a ban. If a ban was implemented then trainers and owners and others employed within the ‘sport’ of hunting would be surplus to requirements and then they could argue that the government is deliberately making individuals unemployed and thus their rights are seriously affected.

This case involves interpretation of previous case law which court used to interpret the Human right act like article 8. The Court Held that the instant case was far removed from the values that Art.8 existed to protect. Fox hunting was a very public activity. H's references to notions of privacy, personal autonomy and choice were as remote from the instant case as to give no helpful guidance, [3]Pretty v United Kingdom (2346/02) [2002] 2 F.L.R. 45 ECHR and Peck v United Kingdom (44647/98) [2003] E.M.L.R. 15 ECHR (in this case P complained to the European Court of Human Rights that her rights under the European Convention on Human Rights 1950 Art.2, Art.3, Art.8 and Art.14 had been infringed. P was in the advanced stages of a fatal incurable degenerative disease. She was frightened and distressed by the suffering and indignity that she would have to endure as the disease progressed and wished to control how and when she died to be spared such suffering and indignity. Although suicide was not a crime, P, by reason of her physical condition, was unable to take her own life. She required the assistance of her husband. To assist another to commit suicide was a criminal offence and the Director of Public Prosecutions declined to grant an indemnity against the prosecution of P's husband. Proceedings issued by P in the United Kingdom culminated in her appeal to the House of Lords being dismissed, Held , dismissing the complaint, that the right to life guaranteed by Art.2 could not be interpreted as conferring a right to die. It was not concerned with issues such as quality of life and did not confer a right to self determination of life) distinguished. It was one thing to recognise that the meaning of "home" should not be too strictly defined, but was quite another to suggest that the expression could cover land over which the owner permitted a sport to be conducted that would never in any ordinary usage be described as "home", [4]Niemietz v Germany (A/251-B) (1993) 16 E.H.R.R. 97 ECHR and Giacomelli v Italy (59909/00) (2007) 45 E.H.R.R. 38 ECHR considered.

The decision in this case was considered by the case of [5] R. (on the application of Purdy) v DPP1 (in this case The claimant (P) applied for judicial review to challenge the failure of the DPP to promulgate a specific policy as to the circumstances in which a prosecution would be brought for aiding and abetting, counselling or procuring a suicide contrary to the Suicide Act 1961 s.2 (1) in particular where the assisted suicide took place in a country where the practice was lawful. P, who was 45 years of age, suffered from primary progressive multiple sclerosis. As her condition deteriorated she would become increasingly incapable of carrying out everyday tasks. She accepted that there would come a time when her continuing existence would become increasingly unbearable, at which point she would wish to end her own life. Because it was an offence in the United Kingdom to aid, abet, counsel or procure a person to commit suicide, if she decided to carry out that wish she would have to travel to a country where "assisted suicide" was lawful, probably Switzerland. P expected that, because of her condition, she would be unable to make the necessary arrangements without the assistance of her husband, who would, if he assisted her, be at risk of prosecution under s.2(1) of the Act. No prosecution could be brought without the consent of the DPP under s.2 (4) of the Act, and P's case was that there was a duty on the DPP to publish a specific policy outlining the circumstances in which a prosecution under s.2 (1) would or would not be appropriate or setting out the public policy factors that would be taken into account for and against prosecuting in each case. P contended that the offence created by s.2(1) of the Act interfered with the rights under the European Convention on Human Rights 1950 art.8 of both the potential suicide and anyone who would assist her, and that in order to justify that interference and make it "according to the law" within art.8(2) the DPP was obliged to exercise his power to issue a specific policy statement on the criteria he would consider when deciding whether to grant consent to the prosecution for an offence under s.2(1) of the Act. The court refused the application).

As this case is an application for the Judicial Review of the Hunting Act 2004 and the application was refused by all the courts so it does not change the law but this decision would have impact on those involved in hunting for their occupation or livelihood, landowners who either permitted hunting across their land or managed their land for that purpose. It was argued that hunting ban infringed their rights under article 8 of the convention of the human rights as it adversely affected their private life, cultural lifestyle, the use of their home and would result in the loss of their livelihood.

I don’t think that the decision in this case leaves the law in a clear position because for some people hunting was a core way of life or central to their main business. The ban was illegal because the act had been passed using the parliament act without the consent of the house of the lords.

I think this case should go to the European Court of Human Right as the decision of the house of the Lords does not leaves the law in a satisfactory position as it does not comply with human rights act and EC treaty. There are people who will be unemployed by this act.

In this case the infringement of rights we must realise that government is changing the law therefore one must evaluate the role the government plays in their decision making. They have duties towards the citizen to them a living space, and jobs but because of the decision as I earlier said they would become unemployed therefore.

The same situation can be shown in the way that do governments support minority interests? The government would certainly agree truly when it comes to rights of ethnic minorities for instance. However would the government offer the same amount of support to the majority interest who are involved in hunting and if not why not? For example under the HRA articles 1 and 8 suggest that as long as it is peaceful and on your own property the government can’t really intervene. This same view can be shown with consenting adults in private sexual acts upon their own property, the government wouldn’t ban this or intervene unless an individual was hurt so why is this not similar to hunting. Hunting can be said to be consenting adults, participating in peaceful enjoyment on private land just like the example above.

In conclusion, the justice had not been done in this decision because it ban the hunting which would make people unemployed so the Government should intervene or there is always the European Court of Human Rights available as the decision also does not comply with the ECHR and EC treaty. The decision of the case should be re reviewed by the European Court of Human Rights as the House of Lords is the last court to go.

R. (on the application of Countryside Alliance) v Attorney General [2006] EWCA Civ 817, [2007] Q.B. 305
R. (on the application of Countryside Alliance) v Attorney General [2006] EWCA Civ 817, [2007] Q.B. 305
Pretty v United Kingdom (2346/02) [2002] 2 F.L.R. 45 ECHR and Peck v United Kingdom (44647/98) [2003] E.M.L.R. 15 ECHR
Niemietz v Germany (A/251-B) (1993) 16 E.H.R.R. 97 ECHR and Giacomelli v Italy (59909/00) (2007) 45 E.H.R.R. 38 ECHR
R. (on the application of Purdy) v DPP

Bibliography

J. Holland and J. Webb, Learning Legal Rules, p280-345

The European Convention on Human Rights

http://www.business.timesonline.co.uk/tol/business/law/reports/article5167764.ece

EC Law

Westlaw UK

LexisNexis Butterworths Online

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